AGREEMENT TO PURCHASE SUBSIDIARIES AND CANCEL SHARES
Exhibit 10.2
AGREEMENT
TO PURCHASE SUBSIDIARIES
AND
CANCEL SHARES
This
Agreement is entered into as of
this 12th day
of October 2007, by and among Xxxx Xxxxxxxx (“Xxxxxxxx”), Xxxxxxxxx Xxxxxxxx
(“Xxxxxxxxx”), Xxxxx Xxxxxxxx (“Xxxxxxxx,” and, together with Xxxxxxxx and
Xxxxxxxxx, the “Management Shareholders”), BioStem, Inc., a Nevada corporation
(“BioStem”) and the undersigned shareholders and debt holders (together with the
Management Shareholders, the “Securities Holders”).
WHEREAS,
the Management Shareholders
are the principal officers and directors of BioStem, Inc., a Nevada corporation,
formerly known as National Parking Systems, Inc. (the “Company”).
WHEREAS,
the Company has agreed to acquire Joyon Entertainment, Inc. (the “Acquisition”),
and has elected to discontinue its parking related businesses;
WHEREAS,
the Securities Holders have
agreed that they would all cancel certain of their shares of the Company,
in
exchange for the transfer to them of all of the shares of the two operating
subsidiaries of the Company, to be effective immediately following the closing
of the Acquisition.
NOW
THEREFORE, the parties intending to be legally bound, hereby agree as
follows:
1. Immediately
prior to the effective date of the Acquisition, the Management Shareholders
shall take such action as is necessary and required to cause all of the shares
of BH Holding Company, Inc., a Nevada corporation (“BH”) and ABS Holding
Company, Inc., a Nevada corporation (“ABS”) to be transferred to the Securities
Holders, which transfer shall be effective as of the effective date of the
Acquisition, or as soon thereafter as possible. Each of the
Securities Holders shall receive the shares of ABS and BH as set forth on
Exhibit A and Exhibit B attached hereto. Immediately after the
transfer of the ABS and BH shares to the Securities Holders, each of the
Securities Holders shall cancel and deliver to the Company the number of
shares
set forth next to their names on Exhibit A.
2. The
Company, Xxxx Xxxxxxxx and Xxxx Investments, Ltd., hereby agree that effective
as of the Closing Date, the Company shall be released from all obligations
arising under that certain Senior Secured Convertible Debenture and the related
security agreement, effective as of the effective date of the
Acquisition. All provisions of the Senior Secured Convertible
Debenture shall remain in full force and effect with respect to all parties
thereto other than the Company.
3. Each
of the undersigned holders of junior convertible debt of the Company shall,
effective the Closing Date, convert the junior convertible debt into common
stock of the Company. In addition, to induce such conversion, each of
the junior convertible debt holders shall receive the shares of common stock
and
common stock purchase warrants set forth opposite their names on Exhibit
B
attached hereto.
4. General
Release. The Management Shareholders and the Company, for themselves
and all persons acting by, through, under or in concert with any of them,
and
each of them, hereby releases and discharges (i) the Company, the holders
of
junior convertible debt of the Company, and Hyde Investments, Ltd., and each
of
their respective past, present and future administrators, affiliates, agents,
assigns, attorneys, directors, employees, executors, heirs, insurers, officers,
managers,
parents, partners, predecessors, representatives, servants, shareholders,
subpartners, subsidiaries, successors, transferees, underwriters, clients
and
customers and each of them; and (ii) all persons acting by, through, under
or in
concert with any of them, of and from any and all actions, causes of action
(including causes of action for tortuous conduct, fraud, fraudulent inducement
or otherwise), claims, costs, damages, debts, demands, expenses, liabilities,
losses and obligations of every nature, character and description, known
or
unknown, suspected or unsuspected, actual or contingent, which the releasing
party now owns or holds, or has at any time heretofore owned or held, or
may at
any time hereafter own or hold, by reason of any matter, cause or thing
whatsoever incurred, done, omitted or suffered to be done arising out of,
or
which may hereafter be claimed to arise out of, related to or in any way
directly or indirectly connected with any fact, circumstance or event existing
on or prior to the date hereof (all such released or discharged items,
collectively referred to herein as “Released Claims”).
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5.
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Representations
and Covenants
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(a) Each
of the Parties acknowledges that there is a risk that subsequent to the
execution of this Agreement, one or more Parties will incur or suffer loss,
damages or injuries which are in some way caused by or related to the Released
Claims, but which are unknown and unanticipated at the time this Agreement
is
signed. All parties do hereby assume the above-mentioned risk and
understand that this Agreement SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED
RESULTS OF THE TRANSACTIONS AND OCCURRENCES DESCRIBED ABOVE, AS WELL AS THOSE
KNOWN AND ANTICIPATED, each of the Parties acknowledges in executing the
releases (the “Releases”) contained in this Agreement, that each does so with
full knowledge of any and all rights and benefits that each might otherwise
have
had under California Civil Code Section 1542, and each, upon the advice of
counsel, hereby waives and relinquishes any and all such rights and
benefits. Each of the Parties acknowledges and agrees that this
waiver is an essential and material term hereof, without which this Agreement
(including, without limitation, the Releases) would not have been entered
into. Section 1542 reads as follows:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which,
if
known by him, must have materially affected his settlement with the
debtor.”
Each
of
the Parties certifies that it has read the foregoing recitation of Section
1542
and understands the meaning of such section and such fact is indicated by
the
signing of such Party’s initials hereto:
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________
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_____________
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____________
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_____________
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Company
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Xxxx
Xxxxxxxx
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Xxxxxxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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Each
of
the Parties further acknowledges that each may hereafter discover facts
different from or in addition to those known or believed to be true with
respect
to the Released Claims. Each of the Parties agrees that the Releases
shall be and shall remain effective in all respects, notwithstanding any
such
different or additional facts, or any facts which are intentionally concealed
from either party by the other. In this regard, and without
limitation, each of the Parties declares that it realizes that it may have
damages it presently knows nothing about and that, as to them, they have
been
released pursuant to the Releases. Each of the Parties further
declares that it understands that the parties being released would not have
agreed to compromise their respective claims if the Releases did not cover
damages and their results which may not yet have manifested themselves or
which
may be unknown or not anticipated at the present time.
(b) The
Releases shall not be deemed an admission by any of the Parties of any
sort. No right shall inure to any third party (other than third
parties described in subparagraphs (a) above) from the obligations,
representations and agreements made or reflected herein.
(c)
Each of the Parties represents and warrants that it alone is the owner of
the
Released Claims, that it has not heretofore assigned or transferred, nor
purported to assign or transfer to any third party, and is not aware of any
third party, who might assert some interest in any of the Released
Claims. Each Party further agrees to indemnify, defend and hold
harmless the other from all liability, claims, demands, damages, costs, expenses
and attorneys’ fees incurred by the other Party as a result of any third party
asserting any such assignment or transfer of any such interest, right or
claim.
(d)
Each of the Parties represents and warrants that none of the Released Claims
is
subject to any purported or actual lien, security interest, encumbrance or
other
contractual right of any third party. Each Party further agrees to
indemnify, defend and hold harmless the other from all liability, claims,
demands, damages, costs, expenses and attorneys’ fees incurred by the other
Party as a result of any third party asserting the existence of any of the
foregoing.
(e)
Each of the Parties acknowledges that it has read this Agreement, has been,
or
has had the opportunity to be, represented by independent counsel of their
own
choice in connection with the circumstances leading up to the execution of
the
Releases, understands the terms, conditions and consequences of the Releases,
and is freely and voluntarily entering into the Releases.
(f)
By execution of this Release, each releasing party represents and warrants
to
the released party that no Claim that he, she or it has, had, might have
or
might have had in the past against any person or entity released hereby,
has
previously been conveyed, assigned, or in any manner transferred, in whole
or in
part, to any third party. Each releasing party expressly represents
and warrants to the other that he, she or it has full authority to enter
into
this Release and to release any and all Claims he, she or it now has, had,
might
have or might have had in the past against each person or entity released
hereby.
(g)
It is expressly understood and agreed that the terms of this Agreement are
contractual and not merely recitations and that the agreements herein contained
are to compromise doubtful and disputed Claims, avoid litigation, and buy
peace
and that no releases or other consideration given shall be construed as an
admission of liability, all liability being expressly denied by each released
party hereto.
(h)
Each of the parties hereto shall take such action as is necessary to accomplish
the transactions contemplated herein, and use their best efforts to obtain
any
consent, approval or other document, certificate or permission that is necessary
to complete all the transactions set forth herein.
[signature
page follows]
IN
WITNESS WHEREOF, each of the parties have caused this Agreement to be executed
all as of the day and year first above written.
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By:______________________
Xxxx
Xxxxxxxx, CEO
_________________________
Xxxx
Xxxxxxxx
_________________________
Xxxxxxxxx
Xxxxxxxx
_________________________
Xxxxx
Xxxxxxxx
Xxxx
Investments, Ltd.:
By:
_________________
Name:
Title:
The
Gateway Real Estate
Investment
Trust:
By:
_________________
Name:
Title:
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The
Morpheus Trust:
By:
_________________
Name:
Title:
Xxxxxxxxxx
Investments, Ltd.:
By:
_________________
Name:
Title:
Xxxxxx
Partners, LLC
By:
_________________
Name:
Title:
Picasso,
LLC
By:
_________________
Name:
Title:
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Exhibit
A
Management
Shareholders
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Biostem
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Shares
of
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Shares
of
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Shareholder
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Shares
to
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ABS
to be
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BH
to be
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be
cancelled
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Issued
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Issued
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Xxxx
Xxxxxxxx
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122,000,000
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2,500
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2,500
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Xxxxxxxxx
Xxxxxxxx
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4,000,000
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500
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500
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Xxxxx
X. Xxxxxxxx
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4,000,000
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500
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500
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Exhibit
B
Junior
Debenture Holders
Shares
of ABS and BH:
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Shares
of ABS
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Shares
of BH
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Xxxxx
Xxxxxxxx, as trustee of
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1,300
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1,300
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The
Morpheus Trust dated 10/1/03
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Hyperion
Fund, L.P.
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1,300
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1,300
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Adele
Ruger, as trustee of
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1,300
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1,300
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The
Gateway Real Estate
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Investment
Trust
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Xxxxxx
Partners, LLC
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1,300
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1,300
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Picasso,
LLC
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1,300
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1,300
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Securities of BioStem, Inc. (after giving effect to a one for forty reverse
stock split):
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Shares
of BioStem Common Stock (144K)
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Shares
of BioStem Common Stock (Restricted)
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Warrants
to Purchase BioStem Common Stock @ $0.10
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Xxxxx
Xxxxxxxx, as trustee of
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2,173,290
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2,940,620
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3,780,000
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The
Morpheus Trust dated 10/1/03
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Hyperion
Fund, L.P.
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2,173,290
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2,940,620
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3,780,000
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Adele
Ruger, as trustee of
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2,173,290
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2,940,620
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3,780,000
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The
Gateway Real Estate
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Investment
Trust
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Xxxxxx
Partners, LLC
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2,173,290
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2,940,620
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3,780,000
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Picasso,
LLC
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2,173,290
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2,940,620
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3,780,000
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Dojo
Enterprises, LLC
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1,483,550
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1,466,449
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2,100,000
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London
Finance Group, Ltd.
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5,000,000
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0
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0
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