Attached files
| file | filename |
|---|---|
| 8-K - FORM 8K - BIOSTEM U.S. CORP | eqnx_8k.htm |
| EX-99.1 - PRESS RELEASE DATED MARCH 1, 2010 - BIOSTEM U.S. CORP | eqnx_ex991.htm |
EXHIBIT
10.1
ASSET
PURCHASE AGREEMENT
This
Asset Purchase Agreement (this "Agreement") is made and entered into on February
25, 2010, by and between Equinox International Inc., a Nevada corporation (the
"Company"), and Biostem US L.L.C., a Florida limited liability company
(“Biostem”). The Company and Biostem are at times herein referred to
individually as a “Party” and collectively as the “Parties.”
RECITALS:
A.
Biostem owns and has the exclusive right to commercialize the technology (the
“Proprietary Technology”) more particularly described in the attached SCHEDULE A
of this Agreement.
B.
The Company wishes to acquire the Proprietary Technology and to this end the
Company and Biostem’s predecessor, Biostem US Inc. (“Biostem Nevada”) have
heretofore made and entered into that certain Share Exchange Agreement (the
“Exchange Agreement”), dated August 19, 2009, pursuant to which the Company was
to acquire all of the issued and outstanding shares of Biostem (and thereby the
Proprietary Technology) in exchange for Twenty Million, Four Hundred Thousand
(20,400,000) unregistered common shares of the Company.
C. The
Parties have determined that their mutual best interests are served by revising
the transaction described in the Exchange Agreement such that Biostem is
substituted for Biostem Nevada and the Company will acquire an assignment of the
Proprietary Technology in exchange for the consideration that would have been
given by the Company to Biostem Nevada under the Exchange
Agreement.
NOW,
THEREFORE, for and in consideration of the premises and the mutual promises and
undertakings contained herein, and for other good and valuable consideration,
and subject to the terms and conditions of this Agreement, the parties hereto
agree as follows.
1. THE
TECHNOLOGY ASSIGNMENT.
1.1 Sale
and Assignment of the Proprietary Technology. On the terms and subject to
conditions of this Agreement, at the Closing (as defined below), Biostem shall
sell, transfer, assign, convey and deliver all of the Proprietary Technology
held by it to the Company, free and clear of all adverse claims, security
interests, liens, claims and encumbrances (other than restrictions expressly
agreed to herein by the Company), and the Company shall purchase, accept and
acquire all of Biostem’s interest in and to the Proprietary Technology from
Biostem.
1.2
Issuance of Company Shares. In full payment for the assignment by Biostem to the
Company of the Proprietary Technology, the Company shall issue and deliver to
Biostem (or, at the option of Biostem, to be exercised, if at all, prior to the
Closing, the members of Biostem, ratably) Twenty Million, Four Hundred Thousand
(20,400,000) unregistered common shares of the Company (the “Company
Shares"). The Company Shares, will, when issued, be validly issued, fully paid,
and non assessable; and the sale, issuance and delivery of the Company Shares on
the terms herein contemplated will be authorized by all requisite corporate
action of the Company; and the Company Shares will not be subject to any
preemptive rights, options or similar rights on the part of any shareholder or
creditor of the Company or any other person. The Company Shares will be issued
at Closing (as defined below) pursuant to an exemption from registration under
the Securities Act of 1933, as amended (the “Securities Act”) pursuant to
Section 4(2) of the Securities Act. Upon issuance, the Company Shares will be
considered “restricted” shares and may not be transferred or re-sold unless an
exemption for such transfer is available or the resale is covered by a
registration statement filed under the Securities Act. The sale, transfer and
assignment of the Proprietary Technology by Biostem in consideration for the
issuance of the Company Shares are referred to herein as the "Technology
Purchase."
1.3
Restrictive Legend on Shares. When issued, the certificates evidencing the
Company Shares will bear a restrictive legend substantially in the following
form:
"The
shares represented by this Certificate have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Securities Act. These
shares may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Securities Act, or
pursuant to an exemption from registration under the Securities
Act."
1.4
Closing. Unless this Agreement shall have been terminated and the transaction
herein contemplated shall have been abandoned, and subject to the satisfaction
or waiver of the conditions set forth in Section 5, the closing of the
Technology Purchase (the "Closing") will take place at 10:00 a.m. on
the business day after satisfaction of the conditions set forth in Section 5 (or
as soon as practicable thereafter following satisfaction or waiver of the
conditions set forth in Section 5) (the "Closing Date"), at the offices of
Biostem, unless another date, time or place is agreed to in writing by the
Parties hereto.
1.5
Appointment of Officers and Directors. At Closing, three directors selected by
Biostem shall be appointed as additional directors of the Company and the
current sole director of the Company shall thereafter resign. The
officers of the Company shall, after the Closing, be as determined by the
reconsituted board of directors of the Company, after giving effect to the
addition of the directors selected by Biostem to the Company’s board of
directors.
1.6
Further Assurances. Each of the Company and Biostem agrees to execute all
documents and instruments and to take or to cause to be taken all actions which
the other Party deems necessary or appropriate to complete the transaction
contemplated by this Agreement, whether on, before or after the
Closing.
1
1.7
Public Filing. Upon execution and or Closing of this Agreement, the Company
shall prepare and file such documents as are necessary to comply with all
applicable U.S. Securities Laws and regulations, including a current report on
Form 8-K and preliminary and definitive information statements. The parties
agree to cooperate in the preparation of such filings.
2.
OTHER AGREEMENTS OF THE PARTIES.
2.1
Biostem to Provide Written Consent to Assignment. Biostem shall as
soon as possible after the Parties’ execution of this Agreement (but no later
than the Closing) provide the Company with the written consent (the “Assignment
Consent”) of the party which has licensed the Proprietary Technology to Biostem,
expressly consenting to the assignment of the Proprietary Technology from
Biostem to the Company as contemplated herein. Such Assignment
Consent shall be in such form as the Company, in the exercise of its sole and
absolute discretion, shall deem necessary and proper in the
circumstances.
3. REPRESENTATIONS
AND WARRANTIES OF BIOSTEM.
Biostem
hereby represents and warrants to the Company that the following are true and
correct as of the Closing:
3.1
Organization and Standing. Biostem is and on the Closing Date will be duly
organized, validly existing and in good standing under the laws of the State of
Florida, with all requisite power and authority to carry on the business in
which it is engaged, to hold the Proprietary Technology and other assets it may
own, and is duly qualified and licensed to do business and is in good standing
in all jurisdictions where the nature of its business makes such qualification
necessary.
3.2
Litigation. There are no claims, actions, suits, proceedings or investigations
pending or threatened against or affecting Biostem or any of its properties or
assets, including the Proprietary Technology, in any court or by or before any
governmental department, commission, board, bureau, agency or other
instrumentality, domestic or foreign, or arbitration tribunal or other forum
which, if determined adversely to Biostem, would materially affect its business,
prospects, properties or financial condition, or Biostem's right to exploit its
Proprietary Technology, whether now or in the future. There are no judgments,
decrees, injunctions, writs, orders or other mandates outstanding to which
Biostem is a party or by which it is bound or affected.
3.3
Estoppel. All statements of Biostem made in this Agreement, or in any Schedule
hereto, or in any document or certificate executed and delivered herewith, are
true, correct and complete as of the date of this Agreement and will be so as of
the Closing.
2
3.4
Compliance with Laws and Permits. Biostem has complied in all material respects
with its organizational documents, including its articles of organization and
operating agreement (each as amended to date), all applicable laws, regulations
and rules, all applicable orders, judgments, writs, decrees or injunctions of
any local or county governments or any department, agency or other
instrumentality thereof, domestic (United States), applicable to its business or
properties, and has not done or omitted to do any act or acts which singly or in
the aggregate are in violation of any of the foregoing. Biostem has, except as
noted herein, obtained all licenses and permits necessary to exploit its
Proprietary Technology and carry on its business, is not in violation of any
such license or permit, and has not received any notification that any
revocation or limitation thereof is pending or threatened.
3.5 No
Undisclosed Material Liabilities. Biostem has not incurred any liabilities or
obligations whatever (whether direct, indirect, accrued, contingent, absolute,
secured or unsecured or otherwise), including liabilities as mortgagor,
guarantor or surety or otherwise for debts or the obligations of others and tax
liabilities due or to become due. There is no basis for any material claim
against Biostem or any of its assets. Biostem has no creditors or agreement with
another third party whose prior consent might be required by law to effect any
sale of its Proprietary Technology.
3.6
Material Transactions and Adverse Changes. Except as has been heretofore
disclosed in writing to the Company, Biostem has not, and as of the Closing will
not have: (i) suffered any material adverse change in its assets taken as a
whole; (ii) suffered any damage or destruction in the nature of a casualty loss
to any one or more of its assets, whether or not covered by insurance, which
singly or in the aggregate are materially adverse to the business or prospects
of Biostem; (iii) made any change in any method of accounting or accounting
practice, including the revaluation of any of its assets; or (iv) agreed in
writing or otherwise to take any action prohibited by this
Agreement.
3.7
Taxes. All governmental taxes applicable to Biostem and its assets, including
any income, excise, unemployment, occupational, franchise, ad valorem and other
taxes, duties, assessments or charges levied, assessed or imposed upon Biostem
have been duly paid (or will be paid as of the Closing) or adequately disclosed
to the Company and provided for, and all required tax returns or reports
concerning any such items have been duly filed. Biostem has not waived any
statute of limitations with respect to any tax liability whatever for any period
prior to the date of this Agreement or agreed to any extension of time with
respect to a tax assessment or liability.
3.8
Indebtedness to and from Affiliates. Biostem is not indebted to any Biostem
officer, director, employee or shareholder, or any affiliate of such persons, as
of the date of this Agreement, which could result in any lien being imposed upon
the Proprietary Technology.
3.9
Documents Genuine. All originals and/or copies of documents, material, data,
files, or information which have been or will be furnished by Biostem to the
Company, are and will be true, complete, correct and unmodified originals and/or
copies of such documents, information, data, files or material.
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3.10
Authorization and Validity. The execution, delivery and performance by Biostem
of and under this Agreement and any other agreements contemplated hereby, and
the consummation of the transaction contemplated hereby and thereby, have been
duly approved and authorized by Biostem and the members and managers of Biostem.
This Agreement and any other agreement contemplated hereby have been or will be
as of the Closing duly executed and delivered by Biostem and constitute and will
constitute the legal, valid and binding obligations of Biostem, enforceable
against it in accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
3.11
Consents; Approvals; Conflict. No consent, approval, authorization or order of
any court or governmental agency or other body is required for Biostem to sell,
transfer and assign the Proprietary Technology to the Company and to otherwise
consummate the Technology Purchase. Neither the execution, delivery,
consummation or performance of this Agreement shall conflict with, or constitute
a breach of any law or regulation and no prior approval is necessary by or
under, the Biostem articles of organization, operating agreement or any note,
mortgage, indenture, deed of trust, lease, obligation, or other agreement or
instrument to which Biostem or any member or manager of Biostem is a
party.
3.12
Proprietary Technology. The Schedule A attached to this Agreement sets forth a
complete and accurate description of the Proprietary Technology of
Biostem.
3.13
Restrictive Covenants. Prior to the consummation of the Technology Purchase,
Biostem shall conduct its business in the ordinary and usual course without
unusual commitments and in compliance with all applicable laws, rules, and
regulations. Furthermore, Biostem will not, without the prior written consent of
the Company, (i) incur any liability or obligation other than current
liabilities incurred in the ordinary and usual course of business, (ii) incur
any material indebtedness for borrowed money, or (iii) mortgage, sell, pledge,
or subject to encumbrance any of its assets, including but not limited to the
Proprietary Technology.
3.14
Disclaimer of Further Warranties. Except as expressly set forth in this
Agreement, the Company has made no other representation or warranty to Biostem
in connection with the Company Shares. The decision of Biostem to enter into
this Agreement is based upon its own independent judgment and investigation and
not on any representations or warranties of the Company, other than those
expressly stated herein.
3.15
Title to Proprietary Technology. The Proprietary Technology of Biostem is held
by it free and clear of all liens, claims, rights or other encumbrances
whatsoever and of all options and similar rights of third persons, and no person
has or will have any right of first refusal, pre-emptive right, option or
similar right to acquire the Proprietary Technology of Biostem.
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3.16 Full
right and Legal Capacity. Biostem has the full right, power and legal capacity
to enter into this Agreement and sell, transfer and assign the Proprietary
Technology to the Company.
3.17
Solvency. Biostem is not insolvent, nor will it be insolvent after selling,
transferring and assigning the Proprietary Technology to the Company in exchange
for the Company Shares.
3.18
Acknowledgements Regarding the Company and the Company Shares.
(a) Biostem
(for itself and, in the event it elects to have the Company Shares issued
at closing ratably to the Biostem members, in behalf of such members of Biostem)
understands and acknowledges that the Company is a publicly reporting company
with no current revenues, and recognizes that the Company Shares are speculative
and involve a high degree of risk, and that the prospects and future success of
the Company depend principally on its ability to raise sufficient capital to
carry out its business plan.
(b) Biostem
(for itself and, in the event it elects to have the Company Shares issued
at closing ratably to the Biostem members, in behalf of such members of Biostem)
acknowledges and agrees that it has been furnished with or had access to the
Company’s latest regulatory filings (for information purposes only) setting out
its business, assets, financial condition and plan of operation, and further
represent that it has full knowledge of the Company and its business, assets,
results of operations, financial condition and plan of operation and the terms
and conditions of the issuance of the Company Shares.
(c) In
connection with the issuance and delivery of the Company Shares, Biostem
(for itself and, in the event it elects to have the Company Shares issued at
closing ratably to the Biostem members, in behalf of such members of Biostem)
understands and acknowledges that the Company Shares have not been registered
under the Securities Act and have been issued in reliance upon exemptions from
registration provided by Section 4(2) of the Securities Act and Regulation D
promulgated under the Securities Act, on the grounds that the transaction
contemplated in this Agreement does not involve any public offering. Biostem
(for itself and, in the event it elects to have the Company Shares issued at
closing ratably to the Biostem members, then each of such members of Biostem) is
acquiring the Company Shares for its own account, and not for the account of any
other person, and not for distribution, assignment or resale to others, or for
pledge or hypothecation, and no other person has or is intended to have a direct
or indirect ownership or contractual interest in the Company Shares except as
herein provided or as may exist or arise by operation of law. Biostem (for
itself and, in the event it elects to have the Company Shares issued at closing
ratably to the Biostem members, in behalf of such members of Biostem)
acknowledges that the Company Shares are "restricted securities" as that term is
defined in Rule 144(a) of the General Rules and Regulations under the Securities
Act and understands that the Company Shares must be held indefinitely until they
are subsequently registered for re-sale under the Securities Act or an exemption
from such registration requirement is available for their re-sale. Biostem (for
itself and, in the event it elects to have the Company Shares issued at closing
ratably to the Biostem members, in behalf of such members of Biostem)
understands and agrees that the prior written consent of the Company will be
necessary for any transfer of the Company Shares until the Company Shares have
been duly registered for re-sale or the transfer is made in accordance with Rule
144 or other available exemption under the Act, and further understands that
every certificate issued by the Company evidencing Company Shares will bear a
legend restricting transfer as provided in this Agreement.
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(d) Biostem
(for itself and, in the event it elects to have the Company Shares issued
at closing ratably to the Biostem members, in behalf of such members of Biostem)
acknowledges that it has such knowledge and experience in financial, tax and
business matters as to enable such person(s) to utilize their knowledge of the
Company, in connection with the Technology Purchase and issuance of the Company
Shares, to evaluate the merits and risks of acquiring the Company Shares and to
make an informed investment decision with respect thereto.
(e) Biostem
acknowledges that it and its members have reviewed the current disclosure
filings of the Company for information purposes and that the Company Shares are
not being sold hereunder pursuant to any prospectus.
3.19 True
and Correct Information and Material Changes. All information which Biostem has
provided or will provide to the Company is or will be correct and complete as of
the date furnished to the Company, and, if there should be any material change
in such information prior to the Closing, Biostem or its authorized
representative will immediately provide the Company with such
information.
3.20 No
Solicitation. Neither Biostem nor any Biostem member was solicited to acquire
the Company Shares by the Company by any form of general solicitation or general
advertising, including but not limited to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or made available over telephone lines by
any information service, or any seminar or meeting whose attendees had been
invited by any means of general solicitation or general
advertising.
3.21 No
Other Representations or Warranties. Except as expressly set forth in this
Agreement, the Company has not made any representation or warranty to Biostem in
connection with this Agreement. The decision by Biostem to enter into this
Agreement and participate in the Technology Purchase is based upon its own
independent judgment and investigation and not on any representations or
warranties of the Company other than those expressly stated in this
Agreement.
3.22 No
Operations. Other than certain reimbursements, if any, paid to Biostem in
connection with the transaction contemplated by this Agreement, Biostem has not
had any revenue or operations since inception.
6
4. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. Unless specifically stated otherwise, the Company
represents and warrants to Biostem that the following are true and correct as of
the date hereof and will be true and correct through the Closing as if made on
that date.
4.1
Organization and Good Standing. The Company is duly organized, validly existing
and in good standing under the laws of the State of Nevada. Prior to
the Closing, The Company will have amended its articles of incorporation for the
purpose of changing its name to “BIOSTEM U.S., INC.” and increasing its
authorized capital to 200 million common shares, par value $.001 per share (such
name change and increase in authorized capital being referred to herein as the
“Reorganization”) and will, on the Closing Date, be duly organized, validly
existing and in good standing under the laws of the State of
Nevada.
4.2
Authorized Capitalization. As of the Closing Date (and as a result of the
Reorganization but before giving effect to the Technology Purchase) the
authorized capital stock of the Company will consist of 200,000,000 shares of
common stock at par value $.001 per share, of which Four Million Six Hundred
Forty Thousand (4,640,000) shares will be issued and outstanding.
4.3
Declaration of Interest. The Company declares that in its decision to acquire
the Proprietary Technology, it is relying on independent legal, financial and
tax experts and other technical personnel, and that the Company’s decision to
enter into this Agreement is based upon its own independent judgment,
investigation and evaluation by disinterested members of its Board of Directors
and management, and not on any representations or warranties of Biostem other
than those expressly stated in this Agreement.
4.4
Litigation. There are no claims, actions, suits, proceedings or investigations
pending or threatened against or affecting the Company in any court or by or
before any federal, state, municipal or other governmental department,
commission, board, bureau, agency or other instrumentality, domestic or foreign,
or arbitration tribunal or other forum. There are no judgments, decrees,
injunctions, writs, orders or other mandates outstanding to which the Company is
a party or by which it is bound or affected.
4.5
Authorization and Validity. The execution, delivery and performance by the
Company of this Agreement and any other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, has been
approved by the Company’s board of directors and by the required majority of the
Company’s shareholders. This Agreement and any other agreement contemplated
hereby have been or will be as of the Closing duly executed and delivered by the
Company and constitute and will constitute legal, valid and binding obligations
of the Company, enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally or the availability of equitable
remedies.
7
4.6
Taxes. All income, excise, unemployment, social security, occupational,
franchise and other taxes, duties, assessments or charges levied, assessed or
imposed upon the Company by the United States or by any state or municipal
government or subdivision or instrumentality thereof have been duly paid or
adequately provided for, and all required tax returns or reports concerning any
such items have been duly filed or will be so filed.
4.7
Indebtedness to or from Affiliates. The Company is not and will not be indebted
to any officer, director, employee or shareholder of the Company as of the
Closing. No money or property is owed to the Company by any officer, director,
employee or shareholder of the Company, and none will be owed as of the
Closing.
4.8
Consents; Approvals; Conflict. Except as expressly set forth herein, no consent,
approval, authorization or order of any court or governmental agency or other
body is required for the Company to execute and perform its obligations under
this Agreement. Neither the execution, delivery, consummation nor the
performance of this Agreement by the Company shall conflict with, constitute a
breach of the Company's articles of incorporation and bylaws, as amended to
date, or any note, mortgage, indenture, deed of trust or other agreement of
instrument to which the Company is a party or by which it is bound nor, to the
best of the Company's knowledge and belief, any existing law, rule, regulation,
or any decree of any court or governmental department, agency, commission, board
or bureau, domestic or foreign, having jurisdiction over the Company. The
Company has timely, accurately, and completely filed all reports, statements and
schedules required under applicable federal and state securities laws with the
U.S. Securities and Exchange Commission and all governing securities
authorities, if any.
4.9
Disclaimer of Further Warranties; Etc. Except as expressly set forth in this
Agreement, Biostem has not made any other representation or warranty to the
Company in connection with the Technology Purchase. The Company's decision to
enter into this Agreement and the Technology Purchase is based upon the
Company's own independent judgment and investigation by disinterested members of
its Board of Directors and management and not on any representations and
warranties of Biostem other than those expressly stated in this
Agreement.
5. CONDITIONS
TO OBLIGATIONS OF THE PARTIES; DELIVERIES. All obligations of the Parties under
this Agreement are subject to the fulfillment, prior to the Closing, of all
conditions precedent and to the performance of all covenants and agreements and
completion of all deliveries contemplated herein, unless specifically waived in
writing by the Party entitled to performance or to demand fulfillment of the
covenant or delivery of the documents.
5.1
Documents to be delivered by Biostem to the Company. At the Closing, the
following documents shall be delivered to the Company by Biostem, which
documents shall be reasonably satisfactory in form and content to the Company's
counsel:
8
(a) Certificates
executed by an authorized representative of Biostem, dated as of the
Closing, certifying that the representations and warranties of Biostem contained
in this Agreement are then true and correct, and that Biostem has complied with
all agreements and conditions required by this Agreement and all related
agreements to be performed or complied with by Biostem.
(b) An
executed and acknowledged assignment to the Company of the Proprietary
Technology, as herein provided;
(c) An
executed and acknowledged Assignment Consent, as herein provided;
and
(d) All
materials and documents in the possession of Biostem related to the
Proprietary Technology.
5.2
Documents to be delivered to Biostem. At the Closing the following documents
shall be delivered to Biostem by the Company, which documents shall be
reasonably satisfactory in form and content to counsel for Biostem:
(a) Stock
certificates evidencing the Company Shares; and
(b) A
certificate executed by the chief executive officer of the Company, dated as
of the Closing, certifying that the representations and warranties of the
Company contained in this Agreement are then true and correct, that the board of
directors and required majority of the Company’s shareholders have approved this
Agreement and the Closing, and that the Company has complied with all agreements
and conditions required by this Agreement to be performed or complied with by
it.
6. OTHER
COVENANTS OF THE PARTIES. The Parties each agree that, prior to the
Closing:
6.1
Effectuation of this Agreement. The Parties hereto will use their best efforts
to cause this Agreement and all related agreements to become effective, and all
transactions herein and therein contemplated to be consummated, in accordance
with its and their terms, to obtain all required consents, waivers and
authorizations of governmental entities and other third parties, to make all
filings and give all notices to those regulatory authorities or other third
parties which may be necessary or reasonably required in order to effect the
transactions contemplated in this Agreement, and to comply with all federal,
local and State rules and regulations as may be applicable to the contemplated
transactions.
6.2
Restriction on Action. The Parties each agree that they will not do any thing or
act prohibited by this Agreement or any related agreement, or fail to do any
thing or act which they have undertaken to do in this Agreement or any related
agreement.
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6.3
Confidentiality. The Parties each covenant that they each will not disclose any
confidential information of the other parties, except to their officers,
directors, attorneys, accountants, and employees involved in these transactions,
and only then on the condition that such individuals not disclose the
information disclosed to them. Notwithstanding the foregoing, the terms of this
Agreement, or of any of the transactions contemplated hereby, such confidential
information may be disclosed following execution hereof, provided that each
party will provide at least twenty-four hours' notice to the other party prior
to making the initial public announcement regarding the transaction. In
addition, either party may disclose this Agreement or any part hereof to any
third party at any time if required to do so by law, this Agreement or other
contractual obligation. Biostem acknowledges that the Company is a reporting
company in the United States and that the Company will control the public
dissemination of information about this transaction.
7. SURVIVAL
OF COVENANTS AND WARRANTIES.
7.1
Survival of Covenants and Warranties. The representations, warranties, covenants
and agreements made by Biostem on the one hand, and the Company on the other
hand, shall survive the Closing for a period of two years and shall be fully
enforceable at law or in equity against such other Parties and their heirs,
successors and assigns during such time. Any investigation at any time made by
or on behalf of (or any disclosure to) any Party hereto shall not diminish in
any respect whatsoever their right to rely on the representations and warranties
of the other Parties hereto.
7.2
Notice of Claims. The Company and Biostem agree to give prompt written notice to
the other of any claim against the Party giving notice which might give rise to
a claim by them against the other Party, stating the nature and basis of the
claim and the actual or estimated amount thereof.
8. TERMINATION
OF THIS AGREEMENT.
8.1
Grounds for Termination. This Agreement shall terminate:
(a) By
mutual written consent of the Company and Biostem; or
(b) By
the Company or Biostem, if:
(i) all
the conditions precedent to their respective obligations hereunder
have not been satisfied or waived prior to the Closing, as the same may be
accelerated or extended;
(ii) any
Party shall have defaulted or refused to perform in any material respect
under this Agreement, or if the Company or Biostem should have reasonable cause
to believe there has been a material representation concerning, or failure or
breach of, any representation or warranty by the other;
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(iii) the
transactions contemplated in this Agreement and related agreements have
not been consummated on the Closing, as the same may be accelerated or extended;
or
(iv) either
the Company or Biostem shall reasonably determine that the transaction
contemplated in this Agreement has become inadvisable by reason of the
institution or threat by any federal, state or municipal governmental
authorities or by other person whatever of a formal investigation or of any
action, suit or proceeding of any kind against either or both Parties which in
one Party's reasonable belief is material in light of the other Party's
business, prospects, properties or financial condition.
8.2
Manner of Termination. Any termination of this Agreement (other than an
automatic termination) shall be made in accordance with the above listed
grounds. Written notice of termination shall be given to the other Party as
required in this Agreement as promptly as is practical under the circumstances.
Upon a Party's receipt of such termination notice, this Agreement shall
terminate and the transactions herein contemplated shall be abandoned without
the necessity of any further action by the Parties.
8.3
Survival of Confidentiality Provisions. Upon termination of this Agreement for
any reason, (i) the covenants of the Parties concerning the confidentiality and
proprietary nature of all documents and other information furnished hereunder
shall remain in force except as to information which has otherwise become public
knowledge, and (ii) each Party shall promptly return all documents received from
the other Party in connection with this Agreement. This Paragraph constitutes a
mutual covenant of the Parties, and either may judicially enforce
it.
9. MISCELLANEOUS
PROVISIONS.
9.1
Assignment. Except as otherwise provided herein with regard to Biostem’s right
to elect to have the Company Shares issued at closing directly to the members of
Biostem ratably, neither this Agreement nor any right created hereby or in any
agreement entered into in connection with the transactions contemplated hereby
shall be assignable by any Party hereto without the prior written consent of the
Party not seeking assignment, and any purported assignment without such consent
shall be null and void and of no force or effect. No such assignment shall
relieve the assignor of any obligations created under this
Agreement.
9.2
Parties in Interest; No Third Party Beneficiaries. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the Parties and their respective heirs, legal
representatives, successors and permitted assigns. Neither this Agreement nor
any other agreement contemplated hereby shall be deemed to confer upon any
person not a Party hereto or thereto any rights or remedies hereunder or
thereunder, except as expressly set forth in this Agreement.
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9.3
Entire Agreement. This Agreement and the agreements contemplated hereby
constitute the entire agreement of the Parties regarding the subject matter
hereof, and supersede all prior agreements and understandings, both written and
oral, among the Parties, or any of them, with respect to the subject matter
hereof, including the Exchange Agreement between the Company and Biostem’s
predecessor, Biostem Nevda.
9.4
Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision never
comprised a part hereof, and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Further, in lieu of such
illegal, invalid or unenforceable provision, there shall be added automatically
as part of this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible in order to preserve the
intentions of the Parties.
9.5
Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants of all Parties contained herein shall survive the
Closing, and all statements contained in any certificate, exhibit or other
instrument delivered by or on behalf of the Company or Biostem, as the case may
be, and, notwithstanding any provision in this Agreement to the contrary, shall
survive the Closing.
9.6
Interpretation. This Agreement shall be governed by and construed under the laws
of the State of Florida.
9.7
Captions. The captions in this Agreement are for convenience of reference only
and shall not limit or otherwise affect any of the terms or provisions hereof.
Whenever the context requires, the gender of all words used herein shall include
the masculine, feminine and neuter, and the number of all words shall include
the singular and plural. Use of the words "herein", "hereof", "hereto" and the
like in this Agreement shall be construed as references to this Agreement as a
whole and not to any particular provision in this Agreement, unless otherwise
noted.
9.8
Notice. Any notice or communication hereunder or in any agreement entered into
in connection with the transactions contemplated hereby must be in writing and
given by depositing the same in the United States mail, addressed to the party
to be notified, postage prepaid and registered or certified with return receipt
requested, by telefax transmission or by delivery by use of a messenger which
regularly retains its delivery receipts. Such notice shall be deemed received on
the date on which it is delivered to the addressee. For purposes of notice, the
addresses of the parties shall be:
| If to Biostem: | Biostem US L.L.C. | |
| 1266 Turner Street | ||
| Clearwater FL 33756 |
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| If to the Company: | Equinox International Inc. | |
| 330 S. Decatur, #10542 | ||
| Las Vegas NV 89102 |
9.9
Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one and the same instrument. Execution and delivery of this Agreement by
exchange of facsimile copies bearing facsimile signature of a Party shall
constitute a valid and binding execution and delivery of this Agreement by such
Party. Such facsimile copies shall constitute enforceable original documents.
The Company shall be responsible to provide each Party to the Agreement with a
fully executed copy once all signatures have been received.
9.10
Prevailing Party (Attorneys' Fees) Clause. In the event of any litigation or
proceeding arising as a result of the breach of this Agreement or the failure to
perform hereunder, or failure or untruthfulness of any representation or
warranty herein, the Party prevailing in such litigation or proceeding shall be
entitled to collect the costs and expenses of bringing or defending such
litigation or proceeding, including reasonable attorneys' fees, from the Party
or Parties not prevailing.
9.11
Relationship of the Parties. Nothing in this Agreement is intended to be
construed so as to suggest that the Parties hereto are partners or joint
venturers, or that any Party is the employee or agent of another. No Party has
any express or implied right or authority under this Agreement to assume or
create any obligations on behalf of or in the name of another party to any
contract, agreement, arrangement, understanding or undertaking with any third
party.
9.12 No
Advice Given. Biostem acknowledges and agrees that neither it nor any of the
members or managers of Biostem has asked for or received any legal or tax advice
from the Company or its directors or any other person associated with the
Company in regard to this Agreement or the transaction herein contemplated, and
has instead relied on advice and counsel furnished by its own legal or other
advisers in order to satisfy itself as to the tax and other legal implications
of the Technology Purchase and the issuance of the Company Shares.
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IN WITNESS WHEREOF, all Parties have executed this Agreement as of the date first written above.
| The “Company” | EQUINOX INTERNATIONAL INC. | ||
|
|
By:
|
/s/ Robert T. Yurckonis | |
| Name: Robert T. Yurckonis | |||
| Title: President | |||
| “Biostem” | BIOSTEM US L.L.C. | ||
|
|
By:
|
/s/ John Satino | |
| Name: John Satino | |||
| Title: Manager | |||
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SCHEDULE
A
Proprietary
Technology of Biostem
[Confidential
Treatment Requested]