Agreement for the Exchange of Common Stock - Cord Blood America Inc., OBX Capital Group LLC, Oakbrooke Group LLC and Oakbridge Equities LLC
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), NOR REGISTERED UNDER
ANY STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT. THE SECURITIES 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, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE ISSUER.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
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THIS AGREEMENT is made and entered into as of March 31, 2004, by and
between Cord Blood America, Inc., a Florida corporation (the "Parent"), and the
shareholders (collectively, the "Shareholders" and, individually, a
"Shareholder") of Cord Partners, Inc., a Florida corporation ("CPI"), who
execute and deliver a copy of this Agreement.
In consideration of the mutual promises, covenants, representations and
warranties contained herein, and other good and valuable consideration, each of
the parties hereto agrees as follows:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the Parent agrees to issue to the Shareholders an aggregate of
10,395,000 shares of common stock of the Parent such that CPI shall become a
wholly-owned subsidiary of the Parent. In addition, Dennis Sturm shall transfer
all of his shares of the Parent to the Parent, and the Parent shall cancel and
retire all of such shares.
2. REPRESENTATIONS AND WARRANTIES OF THE PARENT. The Parent represents
and warrants to the Shareholders as follows:
(a) ORGANIZATION. The Parent is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Florida,
and has all necessary corporate power to own its properties and carry on a
business, and is duly qualified to do business and is in good standing in the
State of Florida. All actions taken by the incorporators, directors, officers
and shareholders of the Parent have been valid and in accordance with the laws
of the State of Florida.
(b) CAPITAL. The authorized capital stock of the Parent
consists of 5,000,000 shares of preferred stock, par value $.0001 per share, of
which no shares are issued or outstanding, and 100,000,000 shares of common
stock, par value $.0001 per share, of which, prior to the issuance of shares
hereunder, there will be 2,113,600 shares issued and outstanding (after giving
effect to the cancellation of 9,950,000 shares owned by Dennis Sturm). At
closing, all such outstanding shares shall be fully paid and non-assessable,
free of all liens, encumbrances, options, restrictions and legal or equitable
rights of others not a party to this Agreement. At closing, there will be no
outstanding subscriptions, options, rights, warrants, convertible securities, or
other agreements or commitments obligating the Parent to issue or to transfer
from treasury any additional shares of its capital stock. None of the
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outstanding shares of the Parent are subject to any stock restriction
agreements. All of the shareholders of the Parent have valid title to such
shares and acquired their shares in a lawful transaction and in accordance with
the laws of the State of Florida.
(c) FINANCIAL STATEMENTS. The audited financial statements of
the Parent as of December 31, 2002 and December 31, 2003, and the related
statements of income and retained earnings for the period then ended have been
prepared in accordance with generally accepted accounting principles
consistently followed by the Parent throughout the periods indicated, and fairly
present the financial position of the Parent as of the date of the financial
statements. Since the date of the financial statements, there has not been any
change in the financial condition or operations of the Parent, except changes in
the ordinary course of business, which changes have not, in the aggregate, had a
materially adverse effect upon the Parent or its financial condition.
(d) ABILITY TO CARRY OUT OBLIGATIONS. The Parent has the
right, power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by the Parent and the
performance by the Parent of its obligations hereunder will not cause,
constitute, or conflict with or result in (i) any breach or violation or any of
the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which the Parent or its shareholders are a party, or
by which they may be bound, nor will any consents or authorizations of any party
other than those hereto be required, (ii) an event that would cause the Parent
to be liable to any party, or (iii) an event that would result in the creation
or imposition or any lien, charge or encumbrance on any asset of the Parent or
upon the securities of the Parent to be acquired by the Shareholders.
(e) FULL DISCLOSURE. None of representations and warranties
made by the Parent herein, or in any certificate or memorandum furnished or to
be furnished by the Parent hereunder, contains or will contain any untrue
statement of a material fact, or omit any material fact the omission of which
would be misleading under the circumstances by which it was made.
(f) CONTRACT AND LEASES. The Parent is not currently carrying
on any business and is not a party to any contract, agreement or lease. No
person holds a power of attorney from the Parent.
(g) COMPLIANCE WITH LAWS. To the best of its knowledge, the
Parent has substantially complied with, and is not in material violation of any
federal, state, or local statute, law, rule and/or regulation.
(h) LITIGATION. The Parent is not (and has not been) a party
to any suit, action, arbitration, or legal, administrative, or other proceeding,
or pending governmental investigation. To the best knowledge of The Parent,
there is no basis for any such action or proceeding and no such action or
proceeding is threatened against the Parent. The Parent is not subject to or in
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default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
(i) CONDUCT OF BUSINESS. Prior to the closing, the Parent
shall conduct its business in the normal course, and shall not (i) sell, pledge,
or assign any assets (ii) amend its Articles of Incorporation or Bylaws, (ii)
declare dividends, redeem or sell stock or other securities, (iv) incur any
liabilities, (v) acquire or dispose of any assets, enter into any contract,
guarantee obligations of any third party, or (vi) enter into any other
transaction.
(j) CORPORATE DOCUMENTS. Copies of each of the following
documents of the Parent, which are true complete and correct in all material
respects, have been or will be delivered to CPI at or prior to closing:
Articles of Incorporation;
Bylaws;
Minutes of Shareholders Meetings; and
Minutes of Directors Meetings.
(k) VALIDITY OF DOCUMENTS. All minutes, consents or other
documents pertaining to the Parent to be delivered at or prior to closing shall
be valid and in accordance with the laws of the State of Florida.
(l) TITLE TO SHARES. The shares to be issued pursuant to this
Agreement will be, at closing, free and clear of all liens, security interests,
pledges, charges, claims, encumbrances and restrictions of any kind. None of
such shares are or will be subject to any voting trust or agreement. No person
holds or has the right to receive any proxy or similar instrument with respect
to such shares and, except as provided in this Agreement, the Parent is not a
party to any agreement which offers or grants to any person the right to
purchase or acquire any securities of the Parent. There is no applicable local,
state or federal law, rule, regulation, or decree which would, as a result of
the issuance of the shares, impair, restrict or delay any voting rights with
respect to the shares.
3. REPRESENTATIONS AND WARRANTIES OF CERTAIN SHAREHOLDERS. Each of
Matthew L. Schissler, Stephanie A. Schissler and Laura Fitzpatrick
(collectively, the "Employees") jointly and severally represents and warrants to
the Parent the following:
(a) ORGANIZATION. CPI is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida and has
all the necessary corporate powers to own properties and carry on a business,
and is duly qualified to do business and is in good standing in Florida.
(b) INFORMATION. Each of the Employees has been an officer of
CPI since its inception. In such capacity, each of the Employees has had access
to all information about CPI that he or she desired. Each of the Employees has
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had the opportunity to ask questions of, and to receive answers from, officers
and employees of the Parent and CPI concerning the Parent and its business,
affairs and operations, CPI and its business, operations and affairs, and the
transactions contemplated by this Agreement, and to obtain any additional
information desired by him or her.
(c) EVALUATION OF INFORMATION. Each of the Officers, by virtue
of his or her education, training and experience, has such knowledge and
experience in financial and business matters that he or she is capable of
understanding the information provided to him or her by the Parent and CPI and
of evaluating the merits and risks of his or her investment in the shares of the
Parent to be issued to him or her pursuant to this Agreement.
(d) INVESTMENT. The shares of the Parent to be issued to each
of the Officers pursuant to this Agreement are being acquired by each of them
for his or her own account, and not for the account or beneficial interest of
any other person or entity. The shares of the Parent to be issued to each of the
Officers pursuant to this Agreement are not being acquired by any of the
Officers with a view to, or for resale in connection with, any "distribution"
within the meaning of the Securities Act of 1933 (the "Securities Act") or any
applicable state securities or blue sky laws (the "State Securities Laws").
(e) RESTRICTED SECURITIES.
(i) The shares of the Parent to be issued to each of
the Officers pursuant to this Agreement have not been, and will not be,
registered under the Securities Act or any State Securities Laws and,
as such, must be held by each of them unless and until they are
subsequently so registered under the Securities Act and any applicable
State Securities Laws or an exemption from registration thereunder is
available. The shares of the Parent to be issued to each of the
Officers hereunder constitute "restricted securities," as that term is
defined in Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act.
(ii) Each of the Officers shall refrain from
transferring, selling, assigning, conveying or otherwise disposing of
any or all of the shares of the Parent to be issued to him or her
pursuant to this Agreement, unless such transfer, sale, assignment,
conveyance or other disposition is registered under the Securities Act
and any applicable State Securities Laws or a specific exemption from
registration thereunder is available. Any transfer, sale, assignment,
conveyance or other disposition of any or all of the shares of the
Parent to be issued to the Officers pursuant to this Agreement which is
made pursuant to an exemption claimed under the Securities Act and any
applicable State Securities Laws will require a favorable opinion of
the Parent's legal counsel.
(iii) The Parent is under no obligation whatsoever to
file any registration statement under the Securities Act or any State
Securities Laws, to register any transfer, sale, assignment, conveyance
or other disposition of any shares of the Parent to be issued pursuant
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to this Agreement, or to take any other action necessary for the
purpose of making an exemption from registration available to any of
the Officers in connection therewith. Stop transfer instructions will
be issued by the Parent with respect to the shares of the Parent to be
issued to the Officers pursuant to this Agreement.
(iv) There will be placed upon all of the
certificates representing shares of the Parent delivered to the
Officers pursuant to this Agreement, and any and all certificates
delivered in partial or total substitution therefor, a restrictive
legend.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS OTHER THAN THE
EMPLOYEES. Each of the Shareholders other than the Employees severally
represents and warrants to the Parent the following:
(a) INFORMATION. He has had access to all information about
CPI that he desired. He has had the opportunity to ask questions of, and to
receive answers from, officers and employees of the Parent and CPI concerning
the Parent and its business, affairs and operations, CPI and its business,
operations and affairs, and the transactions contemplated by this Agreement, and
to obtain any additional information desired by him.
(b) EVALUATION OF INFORMATION. By virtue of his education,
training and experience, he has such knowledge and experience in financial and
business matters that he is capable of understanding the information provided to
him by the Parent and CPI and of evaluating the merits and risks of his
investment in the shares of the Parent to be issued to him or her pursuant to
this Agreement.
(c) INVESTMENT. The shares of the Parent to be issued to him
pursuant to this Agreement are being acquired by him for his own account, and
not for the account or beneficial interest of any other person or entity. The
shares of the Parent to be issued to him pursuant to this Agreement are not
being acquired by him with a view to, or for resale in connection with, any
"distribution" within the meaning of the Securities Act or any applicable State
Securities Laws.
(e) RESTRICTED SECURITIES.
(i) The shares of the Parent to be issued to him
pursuant to this Agreement have not been, and will not be, registered
under the Securities Act or any State Securities Laws and, as such,
must be held by him unless and until they are subsequently so
registered under the Securities Act and any applicable State Securities
Laws or an exemption from registration thereunder is available. The
shares of the Parent to be issued to him hereunder constitute
"restricted securities," as that term is defined in Rule 144
promulgated by the Securities and Exchange Commission under the
Securities Act.
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(ii) He shall refrain from transferring, selling,
assigning, conveying or otherwise disposing of any or all of the shares
of the Parent to be issued to him pursuant to this Agreement, unless
such transfer, sale, assignment, conveyance or other disposition is
registered under the Securities Act and any applicable State Securities
Laws or a specific exemption from registration thereunder is available.
Any transfer, sale, assignment, conveyance or other disposition of any
or all of the shares of the Parent to be issued to him pursuant to this
Agreement which is made pursuant to an exemption claimed under the
Securities Act and any applicable State Securities Laws will require a
favorable opinion of the Parent's legal counsel.
(iii) The Parent is under no obligation whatsoever to
file any registration statement under the Securities Act or any State
Securities Laws, to register any transfer, sale, assignment, conveyance
or other disposition of any shares of the Parent to be issued pursuant
to this Agreement, or to take any other action necessary for the
purpose of making an exemption from registration available to him in
connection therewith. Stop transfer instructions will be issued by the
Parent with respect to the shares of the Parent to be issued to him
pursuant to this Agreement.
(iv) There will be placed upon all of the
certificates representing shares of the Parent delivered to him
pursuant to this Agreement, and any and all certificates delivered in
partial or total substitution therefor, a restrictive legend.
5. DOCUMENTS TO BE DELIVERED AT CLOSING.
(a) BY THE PARENT:
(i) Board of Directors Minutes authorizing the
issuance of a certificate or certificates for the shares of the Parent
to be issued pursuant to this Agreement.
(ii) The resignation of the current officers and
directors of the Parent.
(iii) A Board of Directors resolution appointing
Matthew L. Schissler, Joseph R. Vicente and Stephen Weir as directors
of the Parent.
(iv) All of the business and corporate records of the
Parent, including but not limited to correspondence files, bank
statements, checkbooks, savings account books, minutes of shareholder
and directors meetings, financial statements, shareholder listings,
stock transfer records, agreements and contracts.
(b) BY CPI:
(i) Delivery to the Parent, or to its Transfer Agent,
of certificates representing 100% of the issued and outstanding common
stock of CPI.
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6. MISCELLANEOUS PROVISIONS.
(a) EXPENSES. Each party shall bear all of the legal,
accounting and other costs and expenses incurred by it in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(b) FURTHER ASSURANCES. From and after the date of this
Agreement, each of the parties shall cooperate with one another, shall do and
perform such actions and things, and shall execute and deliver such documents
and instruments, as may be reasonable and necessary to effectuate the purposes
and intents of this Agreement.
(c) 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 regard to conflict or choice of law principles. Jurisdiction and
venue for any action and/or proceeding relating to or arising out of this
Agreement shall be brought solely in the federal and/or state courts located in
Orange County, Florida. The prevailing party in any such action and/or
proceeding shall be entitled to recover its reasonable attorneys' fees and costs
from the other party.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and arrangements,
both oral and written, between the parties with respect to such subject matter.
This Agreement may not be amended or modified in any manner, except by a written
instrument executed by each of the parties hereto.
(e) BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of, and shall be binding upon, the parties and their respective
successors and assigns.
(f) NO WAIVERS. The waiver by either party of a breach or
violation of any provision of this Agreement by the 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 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.
(g) 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.
(h) COUNTERPARTS; TELECOPIER. This Agreement may be executed
in any number of counterparts and by the separate parties in separate
counterparts, and via telecopier, 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.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Agreement on the date first written above.
CORD BLOOD AMERICA, INC.
By Dennis Sturm
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Dennis Sturm, President
Matthew L. Schissler
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Matthew L. Schissler
Stephanie A. Schissler
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Stephanie A. Schissler
Laura Fitzpatrick
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Laura Fitzpatrick
OBX CAPITAL GROUP, LLC
By Dale Scales
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Manager
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OAKBROOKE GROUP, LLC
BY: OAKBROOKE GROUP, INC.
By Michael E. Lewis
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President
OAKBRIDGE EQUITIES, LLC
By: Oakbrooke Equities Management, Inc.
By Jeffrey H. Pasternack
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Jeffrey H. Pasternack, Vice President
Gary D. Lipson
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Gary D. Lipson
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