STOCK EXCHANGE AGREEMENT
Exhibit 10.1
This
Stock Exchange Agreement
(“Agreement”) between BioStem, Inc., a Nevada corporation (“BioStem”), Joytoto
Co., Ltd., a Korean company (“Joytoto”) and Joyon Entertainment Co., Ltd., a
Korean Company (“Joyon,” and together with Joytoto, the “Shareholders”), being
the owners of record of all of the issued and outstanding stock of Joyon
Entertainment, Inc., a Delaware corporation (“JEI”), is entered into as of
October __, 2007
RECITALS
A. BioStem
is a public company quoted on the Nasdaq Over-The-Counter market
(OTCBB).
B. The
Shareholders own all of the issued and outstanding shares of common stock of
JEI
(the “JEI Stock”). JEI owns 100% of the capital stock of Joytoto
America, Inc. and Joytoto Technologies, Inc.
C. The
Shareholders have agreed to sell to BioStem and BioStem has agreed to purchase
the JEI Stock from the Shareholders in exchange for 115,000,000 common shares
of
BioStem, pursuant to the terms and conditions set forth in this
Agreement.
D. JEI
will become a wholly-owned subsidiary of BioStem.
In
consideration of the mutual
representations, warranties, covenants and agreements contained in this
Agreement, the parties agree as follows:
|
1.
|
Exchange
of Stock.
|
|
|
(a)
|
The
Shareholders agree to transfer to BioStem, and BioStem agrees to
purchase
from the Shareholders, all of the Shareholders' right, title and
interest
in their JEI Stock, representing 100% of the issued and outstanding
stock
of JEI, free and clear of all mortgages, liens, pledges, security
interests, restrictions, encumbrances, or adverse claims of any
nature.
|
|
|
(b)
|
At
the Closing (as defined in Section 2 below), upon surrender by the
Shareholders of the certificates evidencing the JEI Stock duly endorsed
for transfer to BioStem or accompanied by stock powers executed in
blank
by the Shareholders, BioStem will cause 115,000,000 shares of its
common
voting stock, par value $0.001 (the “BioStem Stock”) to be issued to the
Shareholders, in full satisfaction of any right or interest which
each
Shareholder held in the JEI Stock. The BioStem Stock will be
issued to the Shareholders with a restrictive legend as required
by
applicable securities laws. As a result of the exchange of the
JEI Stock in exchange for the BioStem Stock, JEI will become a
wholly-owned subsidiary of BioStem.
|
|
2.
|
Closing.
|
|
|
(a)
|
The
parties to this Agreement will hold a closing (the “Closing”) for the
purpose of executing and exchanging all of the documents contemplated
by
this Agreement and otherwise
effecting the transactions contemplated by this Agreement. The
Closing will be held as soon as possible but not later than October
15,
2007, in Santa Monica, California, unless another place or time is
mutually agreed upon in writing by the parties. All proceedings
to be taken and all documents to be executed and exchanged at the
Closing
will be deemed to have been taken, delivered and executed simultaneously,
and no proceeding will be deemed taken nor documents deemed executed
or
delivered until all have been taken, delivered and executed. If
agreed to by the parties, the Closing may take place through the
exchange
of documents by fax and/or express
courier.
|
|
|
(b)
|
With
the exception of any stock certificates which must be in their original
form, any copy, fax, e-mail or other reliable reproduction of the
writing
or transmission required by this Agreement or any signature required
thereon may be used in lieu of an original writing or transmission
or
signature for any and all purposes for which the original could be
used,
provided that such copy, fax, e-mail or other reproduction is a complete
reproduction of the entire original writing or transmission or original
signature, and the originals are promptly delivered
thereafter.
|
|
|
(c)
|
At
closing, BioStem shall have not more than fifty thousand dollars
($50,000)
of accrued but unpaid accounts payable, and shall have no other
liabilities.
|
3.
Representations and Warranties of BioStem.
BioStem
represents and warrants as
follows:
|
|
(a)
|
BioStem
is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada and is licensed or qualified
as a
foreign corporation in all states in which the nature of its business
or
the character or ownership of its properties makes such licensing
or
qualification necessary.
|
|
|
(b)
|
The
only authorized capital stock of BioStem, as of the Closing Date,
shall
consist of 310,000,000 shares of capital stock, of which 300,000,000
shares will be common stock, $0.001 par value per share, of which,
based
on the records of BioStem’s stock transfer agent, not more than 34,500,000
shares will be issued and outstanding as of the closing date, and
10,000,000 shares of preferred stock, of which none shall be outstanding
as of the closing date. There shall be 21,000,000 warrants to
purchase common stock at an exercise price of $0.10 per share, and
3,400,000 warrants to purchase common stock at an exercise price
of $0.35
per share, outstanding as of the closing date. To the best
knowledge of BioStem, all issued and outstanding shares of BioStem’s
common stock are fully paid and
nonassessable.
|
(c) BioStem
will have no subsidiaries as of the closing date.
(d) Execution of this
Agreement and performance by BioStem hereunder has been or will be duly
authorized by all requisite corporate action on the part of BioStem, and this
Agreement constitutes a valid and binding obligation of BioStem, and BioStem’s
performance hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, or,
to
BioStem’s knowledge any law or regulation, to which any property of BioStem is
subject or by which BioStem is bound.
|
|
(e)
|
BioStem
has full corporate power and authority to enter into this Agreement
and to
carry out its obligations hereunder, and will deliver at the Closing
a
copy of resolutions of its board of directors authorizing execution
of
this Agreement by its officers and performance
hereunder.
|
|
|
(f)
|
BioStem
has provided all financial statements and financial information in
its
possession as have been requested by the
Shareholders.
|
|
|
(g)
|
There
is no litigation or proceeding pending, or to BioStem’s knowledge
threatened, against or relating to BioStem, its properties or
business.
|
|
|
(h)
|
BioStem
is acquiring the JEI Stock to be transferred to it under this Agreement
for investment and not with a view to the sale or distribution
thereof.
|
4.
Representations and Warranties of the Shareholders.
The
Shareholders, jointly and
severally, represent and warrant as follows:
|
|
(a)
|
JEI
is a corporation duly organized, validly existing, and in good standing
under the laws of Delaware and is licensed or qualified as a foreign
corporation in all places in which the nature of its business or
the
character or ownership of its properties makes such licensing or
qualification necessary.
|
|
|
(b)
|
There
are no agreements purporting to restrict the transfer of the JEI
Stock,
nor any voting agreements, voting trusts or other arrangements restricting
or affecting the voting of the JEI Stock. The JEI Stock held by
the Shareholders are duly and validly issued, fully paid and
non-assessable, and issued in full compliance with all federal, state,
and
local laws, rules and regulations. There are no subscription
rights, options, warrants, convertible securities, or other rights
(contingent or otherwise) presently outstanding, for the purchase,
acquisition, or sale of the capital stock of JEI, or any securities
convertible into or exchangeable for capital stock of JEI or other
securities of JEI, from or by JEI.
|
|
|
(c)
|
The
Shareholders have full right, power and authority to sell, transfer
and
deliver the JEI Stock, and upon delivery of the certificates therefore
as
contemplated in this Agreement, the Shareholders will transfer to
BioStem
valid and marketable title to the JEI Stock, including all voting
and
other rights to the JEI Stock, free and clear of all pledges, liens,
security interests, adverse claims, options, rights of any third
party, or
other encumbrances.
|
|
|
(d)
|
There
is no litigation or proceeding pending, or to any Shareholder's knowledge,
threatened,
against or relating to JEI or to the JEI
Stock.
|
|
|
(e)
|
JEI
has filed in correct form all tax returns of every nature required
to be
filed by it and has paid all taxes as shown on such returns and all
assessments, fees and charges received by it to the extent that such
taxes, assessments, fees and charges have become due. JEI has
also paid all taxes which do not require the filing of returns and
which
are required to be paid by it. To the extent that tax
liabilities have accrued, but have not become payable, they have
been
adequately reflected as liabilities on the books of
JEI.
|
|
|
(f)
|
The
JEI shareholders have had the opportunity to perform all due diligence
investigations of BioStem and its business as they have deemed necessary
or appropriate and to ask questions of BioStem’s officers and directors
and have received satisfactory answers to all of their questions.
The
Shareholders have had access to all documents and information about
BioStem and have reviewed sufficient information to allow them to
evaluate
the merits and risks of their exchange for the BioStem
Stock.
|
|
|
(g)
|
The
Shareholders are acquiring the BioStem Stock for their own account
(and
not for the account of others) for investment and not with a view
to the
distribution therefor. The Shareholders will not sell or
otherwise dispose of the BioStem Stock without registration under
the
Securities Act of 1933, as amended, or an exemption therefrom, and
the
certificate or certificates representing the BioStem Stock will contain
a
legend to the foregoing effect.
|
5.
Additional Covenants.
|
|
(a)
|
Between
the date of this Agreement and the Closing, the Shareholders, with
respect
to JEI, and BioStem, with respect to itself, will, and will cause
their
respective representatives to: (i) afford the other party and its
representatives access to their personnel, properties, contracts,
books
and records, and other documents and data, as reasonably requested
by the
other party; (ii) furnish the other party and its representatives
with
copies of all such contracts, books and records, and other existing
documents and data as the other may reasonably request in connection
with
the transaction contemplated by this Agreement; and (iii) furnish
the
other party and its representatives with such additional financial,
operating, and other data and information as the other may reasonably
request.
|
6.
Termination.
This
Agreement may be terminated (1) by
mutual consent in writing; (2) by either the Shareholders or BioStem if there
has been a material misrepresentation or material breach of any warranty or
covenant by any other party that is not cured by October 15, 2007; or (3) by
any
of the Sshareholders or BioStem if the Closing has not taken place within 45
business days following execution of this Agreement, unless adjourned to a
later
date by mutual consent in writing.
7.
Expenses.
Whether
or not the Closing is
consummated, each of the parties will pay all of his, her, or its own legal
and
accounting fees and other expenses incurred in the preparation of this Agreement
and the performance of the terms and provisions of this Agreement.
|
8.
|
Survival
of Representations and
Warranties.
|
The
representations and warranties of
the Shareholders and BioStem set out in this Agreement will survive the Closing
for a period of 30 days.
|
9.
|
Waiver.
|
Any
failure on the part of either party
hereto to comply with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such compliance
is owed.
|
10.
|
Brokers.
|
Each
party agrees to indemnify and hold
harmless the other party against any fee, loss, or expense arising out of claims
by brokers or finders employed or alleged to have been employed by the
indemnifying party.
|
11.
|
General
Provisions.
|
|
|
(a)
|
This
Agreement will be governed by and under the laws of the State of
Nevada,
USA without giving effect to conflicts of law principles. If
any provision hereof is found invalid or unenforceable, that part
will be
amended to achieve as nearly as possible the same effect as the original
provision and the remainder of this Agreement will remain in full
force
and effect.
|
|
|
(b)
|
Any
dispute arising under or in any way related to this Agreement will
be
resolved by binding arbitration under the commercial arbitration
rules of
the American Arbitration Association in Santa Monica,
California.
|
|
|
(c)
|
In
any adverse action, the parties will restrict themselves to claims
for
compensatory damages and/or securities issued or to be issued and
no
claims will be made by any party or affiliate for lost profits, punitive
or multiple damages or any other consequential
damages.
|
|
|
(d)
|
This
Agreement constitutes the entire agreement and final understanding
of the
parties with respect to the subject matter hereof and supersedes
and
terminates all prior and/or contemporaneous understandings and/or
discussions between the parties, whether written or verbal, express
or
implied, relating in any way to the subject matter hereof. This
agreement may not be altered, amended, modified or otherwise changed
in
any way except by a written agreement, signed by both
parties.
|
(e) This
Agreement will inure to the benefit of, and be binding upon, the parties hereto
and their successors and assigns; provided, however, that any assignment by
either party of its rights under this Agreement without the written consent
of
the other party will be void.
|
|
(f)
|
The
parties agree to take any further actions and to execute any further
documents which may from time to time be necessary or appropriate
to carry
out the purposes of this Agreement.
|
|
|
(g)
|
The
headings of the Sections, paragraphs and subparagraphs of this Agreement
are solely for convenience of reference and will not limit or otherwise
affect the meaning of any of the terms or provisions of this
Agreement. The references in this Agreement to Sections, unless
otherwise indicated, are references to sections of this
Agreement.
|
|
|
(h)
|
This
Agreement may be executed in counterparts, each one of which will
constitute an original and all of which taken together will constitute
one
document. This Agreement may be executed by delivery of a
signed signature page by fax to the other parties hereto and such
fax
execution and delivery will be valid in all
respects.
|
|
By:__________________________
Xxxx
Xxxxxxxx
Chief
Executive Officer
|
JOYTOTO
CO. LTD.
By:__________________________
Name:
Xxx, Xxxxx Xxx
Title:
Chairman
|
|
JOYON
ENTERTAINMENT CO., LTD.
By:__________________________
Name:
Xxx, Xxxxx Xxxx
Title:
Chief Executive Officer
|
