Stock Option Agreement - Cord Blood America Inc. and Gecko Media Inc.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is entered into as of April 29, 2004 by and
between CORD BLOOD AMERICA, Inc., a Florida corporation (the "Company"), and
Gecko Media, Inc., a Florida corporation ("Gecko").
RECITALS:
A. Cord Partners, Inc., a Florida corporation ("CPI"), and a
wholly-owned subsidiary of the Company, and Gecko have previously entered into
that certain Web Development and Maintenance Agreement dated as of March 19,
2004 (the "Web Development and Maintenance Agreement"). Pursuant to the Web
Development and Maintenance Agreement, the Company is obligated to issue certain
options to purchase shares of the Company's common stock, par value $.0001 per
share (the "Common Stock"), to Gecko upon the acquisition of CPI by the Company.
B. The Company and CPI have completed the transactions contemplated by
that certain Exchange Agreement dated as of March 31, 2004 by and among the
Company and certain shareholders of CPI. In order to satisfy the obligations of
CPI set forth in the Web Development and Maintenance Agreement, the Company is
issuing certain options to purchase shares of Common Stock to Gecko on the terms
set forth in this Stock Option Agreement (the "Agreement").
NOW, THEREFORE, in consideration of the premises, and the respective
covenants and agreements of the parties set forth herein, each of the Company
and Gecko agrees as follows:
ARTICLE I
CERTAIN DEFINITIONS
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The following terms shall have the following respective meanings when
utilized in this Agreement:
"Approved Board" means a Board of Directors of the Company that, as of
a given date, is comprised of individuals at least a majority of whom have
continuously served as directors of the Company during the period of two years
ending on such date, unless the election of each director who was not a director
at the beginning of such two year period was approved in advance by the
directors representing at least two-thirds of the Directors then in office who
were directors at the beginning of such two year period.
"Approved Change in Control of the Company" means any transaction or
series of transactions which:
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(a) results, or is reasonably anticipated to result, in a
Change in Control of the Company;
(b) is approved by the requisite vote of an Approved Board
pursuant to, and in accordance with, applicable law and the Articles of
Incorporation and Bylaws of the Company; and
(c) if required by applicable law or the Articles of
Incorporation or Bylaws of the Company, is approved by the requisite
vote of the shareholders of the Company pursuant to, and in accordance
with, applicable law and the Articles of Incorporation and Bylaws of
the Company.
"Change in Control of the Company" means any change in control of the
Company of a nature which would be required to be reported (a) in response to
Item 6(e) of Schedule 14A of Regulation 14A, as in effect on the date of this
Agreement, promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (b) in response to Item 1 of the Current Report on Form
8-K, as in effect on the date of this Agreement, promulgated under the Exchange
Act, or (c) in any filing by the Company with the United States Securities and
Exchange Commission; provided, however, that, without limitation, a Change in
Control of the Company shall be deemed to have occurred if:
(i) subsequent to the date of this Agreement, any
"person" (as such term is defined in Sections 13(d)(3) and
14(d)(2) of the Exchange Act), other than the Company, any
subsidiary of the Company or any compensation, retirement,
pension or other employee benefit plan or trust of the Company
or any subsidiary of the Company, becomes the "beneficial
owner" (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities
of the Company or any successor to the Company (whether by
merger, consolidation or otherwise) representing twenty
percent (20%) or more of the combined voting power of the
Company's then outstanding securities;
(ii) during any period of two consecutive years, the
individuals who at the beginning of such period constitute the
Board of Directors of the Company cease for any reason to
constitute at least a majority of such Board of Directors,
unless the election of each director who was not a director at
the beginning of such period has been approved in advance by
Geckos representing at least two-thirds of Geckos then in
office who were directors at the beginning of such period;
(iii) the Company shall merge or consolidate with or
into another corporation or other entity, or enter into a
binding agreement to merge or consolidate with or into another
corporation or other entity, other than a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving corporation
or entity) not less than
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eighty percent (80%) of the combined voting power of the
voting securities of the Company or such surviving corporation
or entity outstanding immediately after such merger or
consolidation;
(iv) the Company shall sell, lease, exchange or
otherwise dispose of all or substantially all of its assets,
or enter into a binding agreement for the sale, lease,
exchange or other disposition of all or substantially all of
its assets, in one transaction or in a series of related
transactions; or
(v) the Company shall liquidate or dissolve, or any
plan or proposal shall be adopted for the liquidation or
dissolution of the Company.
"Person" means any individual, person, firm, corporation, partnership,
association or other entity.
ARTICLE II
STOCK OPTIONS
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2.1 GRANT OF OPTIONS. Subject to the terms and conditions set forth in
this Agreement, the Company grants to Gecko options to purchase an aggregate of
One Hundred Fifty Thousand (150,000) shares of Common Stock (the "Options").
2.2 DATE OF GRANT; EXERCISE PRICE. The date of grant of the Options is
April 29, 2004 (the "Grant Date"). The exercise price of the Options is
Twenty-Five Cents ($0.25) per share of Common Stock.
2.3 MAXIMUM TERM OF OPTIONS. In no event may the Options be exercised,
in whole or in part, after April 28, 2009.
2.4 VESTING OF OPTIONS. Subject to the provisions of Article III below,
all of the Options shall vest and be exercisable on and after April 29, 2005.
2.5 EXERCISE AND PAYMENT.
(a) Subject to the provisions of Section 2.4 above, the
Options may be exercised, in whole or in part, by delivery of written
notice to the Company indicating the number of Options which are being
exercised by Gecko, accompanied by payment of the full amount of the
"Aggregate Exercise Price" (as such term is hereinafter defined).
(b) For purposes of this Section 2.5, the term "Aggregate
Exercise Price" shall mean Twenty-Five Cents ($.25) multiplied by the
number of Options being exercised by Gecko.
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(c) The Aggregate Exercise Price shall be paid by Gecko to the
Company by the delivery of (i) cash, (ii) certified or cashiers' check,
(iii) shares of Common Stock already owned by Gecko, (iv) the
withholding of shares of Common Stock issuable upon such exercise of
the Options, (v) irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds required to
pay the purchase price, or (vi) any combination of the foregoing
methods of payment. Shares of Common Stock delivered in payment of all
or any part of the amounts payable in connection with the exercise of
Options, and shares of Common Stock withheld for such payment, shall be
valued for such purpose at their "Fair Market Value" (as such term is
hereinafter defined) as of the date of exercise of the Options.
(d) "Fair Market Value" of a share of Common Stock on any day
means the last sale price (or, if no last sale price is reported, the
average of the high bid and low asked prices) for a share of Common
Stock on such day (or, if such day is not a trading day, on the next
preceding trading day) as reported on NASDAQ or, if not reported on
NASDAQ, as quoted by the National Quotation Bureau Incorporated, or if
the Common Stock is listed on an exchange, on the principal exchange on
which the Common Stock is listed. If for any day the Fair Market Value
of a share of Common Stock is not determinable by any of the foregoing
means, then the Fair Market Value for such day shall be determined in
good faith by the Company on the basis of such quotations and other
considerations as the Company deems appropriate.
2.6 LIMITATIONS ON EXERCISE AND ASSIGNMENT. The Options granted
pursuant to this Agreement shall be exercisable only by Gecko, and the Options
shall not be transferable by Gecko. The Options granted pursuant to this
Agreement shall not be subject to attachment, execution or other similar legal
process. In the event of (a) any attempt by Gecko to alienate, assign, pledge,
hypothecate or otherwise dispose of the Options, or (b) the levy of any
attachment, execution or similar legal process upon the rights or interest
granted to Gecko pursuant to this Agreement, the Company, at its option, may
terminate the Options by the delivery of written notice to Gecko and the Options
shall thereupon become null and void.
2.7 NO RIGHTS OF SHAREHOLDER. Neither Gecko nor any other person shall
be, or shall have any of the rights and privileges of, a shareholder of the
Company with respect to any shares of Common Stock purchasable or issuable upon
the exercise of the Options, in whole or in part, prior to the date of exercise
of the Options and payment in full of the Aggregate Exercise Price therefor.
2.8 STOCK ADJUSTMENT. If there is any change in the number of issued
and outstanding shares of Common Stock by reason of any stock split, stock
dividend, recapitalization or other similar transaction, then the number of
shares of Common Stock subject to the Options and the Exercise Price shall be
proportionately adjusted.
2.9 STOCK RESERVED. The Company shall at all times during the term of
this Agreement reserve and keep available such number of shares of its
authorized but unissued Common Stock, or its Common Stock held as treasury
stock, as shall be sufficient to satisfy the terms of this Agreement.
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2.10 CORPORATE REORGANIZATION. If there shall be any capital
reorganization or consolidation or merger of the Company with another
corporation or corporations or entity or entities, or any sale of all or
substantially all of the Company's properties and assets to any other
corporation or corporations or entity or entities, then, in any such event, the
Company shall take such action as may be necessary to enable Gecko to receive
upon any subsequent exercise of the Options, in whole or in part, including any
shares under the Options for which the right to exercise has not accrued
pursuant to the provisions of Section 2.4 above, in lieu of shares of Common
Stock, securities or other assets as were issuable or payable upon such
reorganization, consolidation, merger or sale in respect of, or in exchange for,
such shares of Common Stock.
ARTICLE III
DELIVERY OF CERTIFICATES
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As soon as practicable following any exercise by Gecko of the Options,
the Company shall deliver or cause to be delivered to Gecko a certificate or
certificates representing the shares of Common Stock acquired pursuant to any
such exercise; provided, however, that the Company may postpone the time of
delivery of any certificate for such period of time as the Company shall deem
necessary or desirable in order to enable it to comply with (i) the listing
requirements of any securities exchange or the National Association of
Securities Dealers, Inc. Automated Quotation system, (ii) the requirements of
the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (collectively,
the "Federal Securities Laws"), or (iii) the requirements of any applicable
state securities or blue sky laws and the rules and regulations promulgated
thereunder (collectively, the "State Securities Laws").
ARTICLE IV
CERTAIN REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF GECKO
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Gecko represents and warrants to the Company, and covenants and agrees
with the Company, as follows:
(a) The shares of Common Stock to be issued to Gecko upon any
exercise of the Options are being acquired by Gecko for its own account, and not
for the account or beneficial interest of any other person or entity. The shares
of Common Stock to be issued to Gecko upon any exercise of the Options are not
being acquired by Gecko with a view to, or for resale in connection with, any
"distribution" within the meaning of the Federal Securities Laws or any
applicable State Securities Laws.
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(b) The shares of Common Stock to be issued to Gecko upon any
exercise of the Options have not been, and will not be, registered under the
Federal Securities Laws or any State Securities Laws and, as such, must be held
by Gecko unless and until they are subsequently so registered under the Federal
Securities Laws and any applicable State Securities Laws or an exemption from
registration thereunder is available. The shares of Common Stock to be issued to
Gecko upon any exercise of the Options constitute "restricted securities," as
that term is defined in Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act.
(c) Gecko shall not sell, assign, transfer, convey, pledge,
hypothecate, encumber or otherwise dispose of (collectively, a "Transfer") any
or all of the shares of Common Stock to be issued to it upon any exercise of the
Options, unless such Transfer is registered under the Federal Securities Laws
and any applicable State Securities Laws or a specific exemption from
registration thereunder is available. Any Transfer of any or all of the shares
of Common Stock to be issued to Gecko upon any exercise of the Options which is
made pursuant to an exemption claimed under the Federal Securities Laws and any
applicable State Securities Laws will require a favorable opinion of Gecko's
legal counsel, in form and in substance satisfactory to the Company and its
legal counsel, to the effect that such Transfer does not and will not violate
the provisions of the Federal Securities Laws or any applicable State Securities
Laws.
(d) The Company is under no obligation whatsoever to file any
registration statement under the Federal Securities Laws or any State Securities
Laws to register any Transfer of any shares of Common Stock held by Gecko, or to
take any other action necessary for the purpose of making an exemption from
registration available to Gecko in connection with any such Transfer. Stop
transfer instructions will be issued by the Company with respect to the shares
of Common Stock to be issued to Gecko upon any exercise of the Options.
(e) There will be placed upon all of the certificates
representing shares of Common Stock delivered by the Company to Gecko, and any
and all certificates delivered in partial or total substitution therefor, a
restrictive legend which will read substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED, HYPOTHECATED, ENCUMBERED OR
OTHERWISE DISPOSED OF UNLESS (A) THEY ARE COVERED BY A REGISTRATION
STATEMENT OR POST-EFFECTIVE AMENDMENT THERETO, EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) SUCH SALE, ASSIGNMENT,
TRANSFER, CONVEYANCE, PLEDGE, HYPOTHECATION, ENCUMBRANCE OR OTHER
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THAT ACT.
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ARTICLE V
CHANGE IN CONTROL OF THE COMPANY
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Upon the occurrence of any Change in Control of the Company, other than
an Approved Change in Control of the Company, notwithstanding anything to the
contrary set forth herein, all of the Options granted hereunder shall
immediately vest and become exercisable in full.
ARTICLE VI
MISCELLANEOUS PROVISIONS
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6.1 GOVERNING LAW. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of Florida,
without giving effect to the principles of the conflict of laws thereof.
6.2 NOTICES. Any and all notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand, or when delivered by
mail, by registered or certified mail, postage prepaid, return receipt
requested, to the respective parties at the following respective addresses:
If to the Company: Cord Blood America, Inc.
10940 Wilshire Blvd.
Sixth Floor
Beverly Hills, California 90024
Attention: Chief Executive Officer
If to Gecko: Gecko Media, Inc.
16017 North Florida Ave.
Suite 113
Lutz, Florida 33549
or to such other address as either party may from time to time give written
notice of to the other in accordance with the provisions of this Section 6.2.
6.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and Gecko with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and arrangements,
both oral and written, between the Company and Gecko with respect to such
subject matter.
6.4 AMENDMENTS. This Agreement may not be amended or modified in any
manner, except by a written instrument executed by each of the Company and
Gecko.
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6.5 BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of, and shall be binding upon, each of the Company and Gecko and their
respective heirs, personal representatives, executors, legal representatives,
successors and assigns.
6.6 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their being valid in
law. If any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid by any court of competent
jurisdiction, then, in any such event, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, or section or sections had not been inserted.
6.7 NO WAIVERS. The waiver by either party of a breach or violation of
any provision of this Agreement by any other party shall not operate nor be
construed as a waiver of any subsequent breach or violation. The waiver by
either party to exercise any right or remedy it or he may possess shall not
operate nor be construed as a bar to the exercise of such right or remedy by
such party upon the occurrence of any subsequent breach or violation.
6.8 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of any or all of the provisions hereof.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed and delivered this
Agreement on the date first written above.
CORD BLOOD AMERICA, INC. GECKO MEDIA, INC.
By Matthew L. Schissler By Aaron Houk
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Matthew L. Schissler, Aaron Houk,
Chairman and Chief Director Officer Chief Executive Officer
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