Stock Option Agreement - Cord Blood America Inc. and Matthew L. Schissler
STOCK OPTION AGREEMENT
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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
MATTHEW L. SCHISSLER, an individual (the "Executive").
RECITALS:
A. The Company desires to grant to the Executive certain options to
purchase shares of the Company's common stock, par value $.0001 per share (the
"Common Stock").
B. Each of the Company and the Executive desires to enter into this
Stock Option Agreement (the "Agreement") for the purpose of evidencing the grant
of such options and setting forth certain of the terms and conditions governing
the exercise thereof.
NOW, THEREFORE, in consideration of the premises, and the respective
covenants and agreements of the parties set forth herein, each of the Company
and the Executive 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:
(a) results, or is reasonably anticipated to result, in a
Change in Control of the Company;
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(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.
"Cause" means any action by the Executive or any inaction by the
Executive which, after due consideration, is reasonably determined by the Board
of Directors of the Company to constitute:
(a) fraud, embezzlement, misappropriation, dishonesty or
breach of trust;
(b) a felony or moral turpitude;
(c) a material breach or violation of any or all of the
covenants, agreements and obligations of the Executive set forth in any
employment agreement between the Company and the Executive, other than
as the result of the Executive's death or Disability;
(d) a willful or knowing failure or refusal by the Executive
to perform any or all of his material duties and responsibilities as an
officer of the Company, other than as the result of the Executive's
death or Disability; or
(e) gross negligence by the Executive in the performance of
any or all of his material duties and responsibilities as an officer of
the Company, other than as a result of the Executive's death or
Disability.
"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
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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
the directors representing at least two-thirds of the
directors 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 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.
"Disability" means any mental or physical illness, condition,
disability or incapacity which prevents the Executive from reasonably
discharging his duties and responsibilities as an officer of the Company. If any
disagreement or dispute shall arise between the Company and the Executive as to
whether the Executive suffers from any Disability, then, in such event, the
Executive shall submit to the physical or mental examination of a licensed
physician, who is mutually agreeable to the Company and the Executive, and such
physician shall determine whether the Executive suffers from any Disability. In
the absence of fraud or bad faith, the determination of such physician shall be
final and binding upon the Company and the Executive. The entire cost of such
examination shall be paid for solely by the Company.
"Person" means any individual, person, firm, corporation, partnership,
association or other entity.
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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 the Executive options to purchase an
aggregate of Five Hundred Thousand (500,000) 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 ($0.25) per share of Common Stock.
2.3 MAXIMUM TERM OF OPTIONS. In no event may the Options be exercised,
in whole or in part, after April 28, 2014.
2.4 VESTING OF OPTIONS. Subject to the provisions of Article III below,
the Options shall vest and be exercisable on and after the dates set forth below
as to the number of shares of Common Stock determined by multiplying the
percentage indicated on the Vesting Schedule below by the total number of shares
subject to the Options on the Grant Date:
VESTING SCHEDULE
AGGREGATE PERCENTAGE VESTED
VESTING DATE AND CAPABLE OF EXERCISE
Grant Date 0%
First anniversary of Grant Date 25%
Second anniversary of Grant Date 50%
Third anniversary of Grant Date 75%
Fourth anniversary of Grant Date 100%
2.5 EXERCISE AND PAYMENT.
(a) Subject to the provisions of Section 2.4 above, the
Options may be exercised, in whole or in part, by delivery of written
notice to the Company indicating the number of Options which are being
exercised by the Executive, accompanied by payment of the full amount
of the "Aggregate Exercise Price" (as such term is hereinafter
defined).
(b) For purposes of this Section 2.5, the term "Aggregate
Exercise Price" shall mean Twenty-Five Cents ($.25) multiplied by the
number of Options being exercised by the Executive.
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(c) The Aggregate Exercise Price shall be paid by the
Executive to the Company by the delivery of (i) cash, (ii) certified or
cashiers' check, (iii) shares of Common Stock already owned by the
Executive, (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. During the Executive's
lifetime, the Options granted pursuant to this Agreement shall be exercisable
only by the Executive, and the Options shall not be transferable except, in case
of the death of the Executive, by will or by the laws of descent and
distribution. 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 the Executive to alienate, assign, pledge, hypothecate or
otherwise dispose of the Options, except as provided herein, or (b) the levy of
any attachment, execution or similar legal process upon the rights or interest
granted to the Executive pursuant to this Agreement, the Company, at its option,
may terminate the Options by the delivery of written notice to the Executive and
the Options shall thereupon become null and void.
2.7 NO RIGHTS OF SHAREHOLDER. Neither the Executive 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.
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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.
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 the Executive 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
TERMINATION OF EMPLOYMENT
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3.1 DEATH; DISABILITY. If the Executive's employment by the Company
shall be terminated by reason of the Executive's death or Disability, then all
of the Options granted to the Executive pursuant to this Agreement which have
not previously vested shall vest on the date of death or Disability, as the case
may be, and may be exercised by the Executive or his estate, personal
representative, executor, administrator or any person who acquired such Options
by will or by the laws of descent and distribution, as the case may be, at any
time prior to the earlier of (a) the expiration date of such Options set forth
in this Agreement or (b) one year after the date of termination of employment.
3.2 CAUSE. If the Executive's employment by the Company shall be
terminated for Cause, then:
(a) all of the Options granted to the Executive pursuant to
this Agreement which shall not have vested shall terminate on the date
of termination of employment; and
(b) all of the Options granted to the Executive pursuant to
this Agreement which shall have vested but which shall not have been
previously exercised by the Executive shall terminate on the date of
termination of employment.
3.3 OTHER TERMINATION. If the Executive's employment by the Company
shall be terminated for any reason other than one set forth in Section 3.1 or
Section 3.2 above, then:
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(a) all of the Options granted to the Executive pursuant to
this Agreement which shall not have previously vested shall terminate
on the date of termination of employment; and
(b) all of the Options granted to the Executive pursuant to
this Agreement which shall have previously vested but which shall not
have been previously exercised by the Executive may be exercised by the
Executive at any time prior to the earlier of (i) the expiration date
of such Options set forth in this Agreement or (ii) three months from
and after the date of termination of employment.
ARTICLE IV
DELIVERY OF CERTIFICATES
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As soon as practicable following any exercise by the Executive of the
Options, the Company shall deliver or cause to be delivered to the Executive 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 V
CERTAIN REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
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OF THE EXECUTIVE
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The Executive 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 the Executive
upon any exercise of the Options are being acquired by the Executive for his 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 the Executive upon any
exercise of the Options are not being acquired by the Executive 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 the Executive
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 the Executive 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 the Executive 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) The Executive 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 him 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 the Executive 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 the Executive'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 the
Executive, or to take any other action necessary for the purpose of making an
exemption from registration available to the Executive 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 the Executive 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 the Executive,
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 VI
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 VII
MISCELLANEOUS PROVISIONS
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7.1 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.
7.2 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: President
If to the Executive: Matthew L. Schissler
124 South Carson Road
Beverly Hills, California 90211
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 7.2.
7.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Executive with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
arrangements, both oral and written, between the Company and the Executive with
respect to such subject matter.
7.4 AMENDMENTS. This Agreement may not be amended or modified in any
manner, except by a written instrument executed by each of the Company and the
Executive.
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7.5 BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of, and shall be binding upon, each of the Company and the Executive and their
respective heirs, personal representatives, executors, legal representatives,
successors and assigns.
7.6 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.
7.7 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.
7.8 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.
7.9 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.
By Stephanie A. Schissler Matthew L. Schissler
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Stephanie A. Schissler, Matthew L. Schissler
President and Chief Operating Officer
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