Published on October 20, 2005
STOCK
EXCHANGE AGREEMENT
STOCK
EXCHANGE AGREEMENT, dated as of March 15, 2005 (this "AGREEMENT"), by and among
G
T 5-Limited,
a
Nevada corporation ("GTFV"), Dante Pannella, a shareholder of GTFV (the “GTFV
Shareholder”) CryoPort
Systems, Inc.,
a
California corporation ("CryoPort"):
RECITALS
WHEREAS,
CryoPort and GTFV have each determined that the transactions contemplated by
this Agreement, on the terms and conditions of this Agreement, would be
advantageous and beneficial to their respective companies and
shareholders.
WHEREAS,
the parties hereto desire to consummate the transactions contemplated herein,
pursuant to which (a) GTFV will transfer to the shareholders of CryoPort an
aggregate of 24,108,105 shares (collectively, the "CryoPort Shares") of Common
Stock, par value $0.001 per share, and (b) CryoPort shareholders, in exchange
therefore, will transfer to GTFV an aggregate of 24,108,105 shares
(collectively, the "GTFV Shares") of Common Stock, no par value, representing
all of the issued and outstanding common stock of CryoPort.
WHEREAS,
for United States federal income tax purposes, the transactions contemplated
hereby are intended to qualify as a tax-free reorganization under Section 368
of
the Internal Revenue Code of 1986, as amended (together with all rules and
regulations issued thereunder (the "Code")) and this Agreement is intended
to be
adopted as a plan of reorganization for purposes of Section 368 of the
Code.
NOW,
THEREFORE, in consideration of the premises and the representations, warranties
and agreements herein contained, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1. DEFINITIONS. As used herein, the following terms shall have
the
following meanings:
"Act"
means the Securities Act of 1933, as amended, and the rules and regulations
issued in respect thereto.
"Encumbrance"
means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against
or interest in property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of any kind or nature
whatsoever.
"Law"
means any law, statute, regulation, rule, ordinance, requirement or other
binding action or requirement of any governmental, regulatory or administrative
body, agency or authority or any court of judicial authority.
"Order"
means any decree, order, judgment, writ, award, injunction, stipulation or
consent of or by any Federal, state or local government or any court,
administrative agency or commission or other governmental authority or agency,
domestic or foreign.
"Person"
means any individual, corporation, general or limited partnership, joint
venture, association, limited liability company, joint stock company, trust,
business, bank, trust company, estate (including any beneficiaries thereof),
unincorporated entity, cooperative, association, government branch, agency
or
political subdivision thereof or organization of any kind.
"Transaction
Documents" means this Agreement and any ancillary contracts, agreements or
other
documents that are to be entered into in connection with the transactions
contemplated hereby.
ARTICLE
II
EXCHANGE
OF STOCK
SECTION
2.1. EXCHANGE
OF SHARES. Subject to the terms and conditions of this Agreement, on the Closing
Date (as hereinafter defined):
(a)
GTVF
shall issue and deliver to each of the shareholders of CryoPort (the “CryoPort
Shareholders”) one share of GTVF common stock for each share of CryoPort common
stock owned by such shareholder, for an aggregate of 24,108,105
shares
of
GTVF common stock, and
(b)
the
Company shall cause each CryoPort Shareholder shall deliver to GTFV, one or
more
stock certificates, duly endorsed for transfer, representing all shares of
CryoPort Common stock owned by such shareholder, for a aggregate of 24,108,105
shares of Common Stock; and
(c)
GTFV
currently has 5,600,000 shares of its $0.0001 par value common stock issued
and
outstanding. After giving effect to the exchange of shares herein, GTFV shall
have 28,061,690 shares of common stock issued and outstanding.
(d)
Following the exchange and receipt by the CryoPort Shareholders of the GTFV
Shares, such CryoPort Shareholders shall own approximately 80% percent of the
total issued and outstanding shares of GTFV common stock, and shall assume
control of GTFV, whose common stock is qualified for trading on the Pink Sheets
stock exchange under the symbol (“GTFV”).
SECTION
2.2. THE CLOSING.
(a)
Subject to the terms and conditions of this Agreement, the closing of the
transactions contemplated by this Agreement (the "Closing") shall take place
as
promptly as possible but no later than the fifth (5th)
business day following the day the last of the conditions set forth in Article
V
shall have been fulfilled or waived (other than those that this Agreement
contemplates will be satisfied at or immediately prior to the Closing), or
at
such other time as shall be mutually agreed upon by GTFV and CryoPort (the
"Closing Date”).
(b)
Subject to the conditions set forth in this Agreement, the parties agree to
consummate the following transactions at the Closing:
(i)
the
CryoPort Shareholders shall assign and transfer to GTFV the GTFV Shares, by
physically delivering to GTFV one (1) or more stock certificates duly endorsed
or accompanied by duly executed stock powers (with a medallion guaranty, if
requested) sufficient to validly transfer the GTFV Shares to GTFV or its
nominee; and
(ii)
GTFV
shall issue to each CryoPort Shareholder one share of GTFV common stock for
each
share of CryoPort Common Stock transferred by such CryoPort Shareholder, by
physically delivering to such CryoPort Shareholder a stock certificate in the
name of such CryoPort Shareholder representing the number of shares due such
CryoPort Shareholder.
(iii)
The
current director(s) of GTFV shall elect the following individuals to the board
of directors of GTFV Patrick Mullens, Jeffrey Dell, Marc Grossman, Peter Berry
and David Petreccia, and shall thereafter tender their respective resignations
from the board of directors.
(iv)
The
current officers of GTFV shall resign, and the new board elected pursuant to
subsection (iii) above shall elect new officers.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
GTFV
AND THE GTFV SHAREHOLDER
GTFV
and
the GTFV Shareholder hereby jointly and severally represent and warrant to
CryoPort and each CryoPort Shareholder that now and as of the
Closing:
3.1 Due
Organization and Qualification; Subsidiaries; Due Authorization.
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(a)
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GTFV
is a corporation duly incorporated, validly existing and in good
standing
under the laws of its jurisdiction of formation, with full corporate
power
and authority to own, lease and operate its respective business and
properties and to carry on its respective business in the places
and in
the manner as presently conducted or proposed to be conducted. GTFV
is in
good standing as a foreign corporation in each jurisdiction in which
the
properties owned, leased or operated, or the business conducted,
by it
requires such qualification except for any such failure, which, when
taken
together with all other failures, is not likely to have a material
adverse
effect on the business of GTFV and its Subsidiaries taken as a
whole.
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(b)
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GTFV
does not own, directly or indirectly, any capital stock, equity or
interest in any corporation, firm, partnership, joint venture or
other
entity.
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(c)
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GTFV
has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby
and
thereby. GTFV has taken all corporate action necessary for the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid and
binding
obligation of GTFV, enforceable against GTFV in accordance with its
terms,
except as may be affected by bankruptcy, insolvency, moratoria or
other
similar laws affecting the enforcement of creditors' rights generally
and
subject to the qualification that the availability of equitable remedies
is subject to the discretion of the court before which any proceeding
therefore may be brought.
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3.2 No
Conflicts or Defaults.
The
execution and delivery of this Agreement by GTFV and the consummation of the
transactions contemplated hereby do not and shall not (a) contravene the
Articles of Incorporation or By-laws of GTFV or (b) with or without the giving
of notice or the passage of time (i) violate, conflict with, or result in a
breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to which
GTFV is a party or by which GTFV is bound, or any judgment, order or decree,
or
any law, rule or regulation to which GTFV is subject, (ii) result in the
creation of, or give any party the right to create, any Encumbrance or any
other
right or adverse interest upon any of the assets or common stock of GTFV, (iii)
terminate or give any party the right to terminate, amend, abandon or refuse
to
perform, any material agreement, arrangement or commitment to which GTFV is
a
party or by which GTFV's assets are bound, or (iv) accelerate or modify, or
give
any party the right to accelerate or modify, the time within which, or the
terms
under which, GTFV is to perform any duties or obligations or receive any rights
or benefits under any material agreement, arrangement or commitment to which
it
is a party.
3.3 Capitalization.
The
authorized capital stock of the GTFV immediately prior to giving effect to
the
transactions contemplated hereby consists of one hundred million (100,000,000)
shares of Common Stock of which 5,600,000 shares of $0.0001 par value Common
Stock are issued and outstanding as of the date hereof. All of the outstanding
shares of Common Stock are, and the GTFV Shares when issued in accordance with
the terms hereof, will be, duly authorized, validly issued in compliance with
applicable federal and state securities laws, fully paid and nonassessable,
and
have not been or, with respect to the GTFV Shares, will not be issued in
violation of any preemptive right of stockholders. The GTFV Shares are not
subject to any preemptive or subscription right, any voting trust agreement
or
other contract, agreement, arrangement, option, warrant, call, commitment or
other right of any character obligating or entitling GTFV to issue, sell, redeem
or repurchase any of its securities, and there is no outstanding security of
any
kind convertible into or exchangeable for Common Stock. GTFV has not granted
registration rights to any person.
3.4 Financial
Statements.
Exhibit
3.4 to the Disclosure Schedule contains copies of the balance sheets of the
GTFV
at November 30, 2004, and the related statements of operations, stockholders'
equity and cash flows for the eleven months then ended (all such statements
being the "GTFV Financial Statements"). The Financial Statements, have been
prepared in accordance with U.S. generally accepted accounting principles
applied on a basis consistent throughout all periods presented, subject to
audit
adjustments, which are not expected to be material. Such statements present
fairly the financial position of GTFV as of the dates and for the periods
indicated. The books of account and other financial records of GTFV have been
maintained in accordance with good business practices.
3.5 Further
Financial Matters.
Except
for Exhibit 3.5 of the Disclosure Schedule, GTFV does not have any liabilities
or obligations, whether secured or unsecured, accrued, determined, absolute
or
contingent, asserted or unasserted or otherwise, which are required to be
reflected or reserved in a balance sheet or the notes thereto under generally
accepted accounting principles, but which are not reflected in the Financial
Statements.
3.6 Taxes.
GTFV
has filed all United States federal, state, county, local and foreign national,
provincial and local returns and reports which were required to be filed on
or
prior to the date hereof in respect of all income, withholding, franchise,
payroll, excise, property, sales, use, value-added or other taxes or levies,
imposts, duties, license and registration fees, charges, assessments or
withholdings of any nature whatsoever (together, "Taxes"), and has paid all
Taxes (and any related penalties, fines and interest) which have become due
pursuant to such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have
been
properly reflected as a liability on the books and records of GTFV and adequate
reserves therefore have been established. All such returns and reports filed
on
or prior to the date hereof have been properly prepared and are true, correct
(and to the extent such returns reflect judgments made by GTFV, as the case
may
be, such judgments were reasonable under the circumstances) and complete in
all
material respects. No tax return or tax return liability of GTFV has been
audited or, presently under audit. GTFV has not given or been requested to
give
waivers of any statute of limitations relating to the payment of any Taxes
(or
any related penalties, fines and interest). Except for item 3.6 of the
Disclosure Schedule, there are no claims pending or, to the knowledge of GTFV
or
the GTFV Shareholder, threatened, against the GTFV for past due Taxes. All
payments for withholding taxes, unemployment insurance and other amounts
required to be paid for periods prior to the date hereof to any governmental
authority in respect of employment obligations of GTFV, including, without
limitation, amounts payable pursuant to the Federal Insurance Contributions
Act,
have been paid or shall be paid prior to the Closing and have been duly provided
for on the books and records of GTFV and in the Financial Statements. GTFV
has
delivered to CryoPort copies of the federal income tax returns for each of
the
past two fiscal years.
3.7 Indebtedness;
Contracts; No Defaults.
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(a)
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Except
as set forth on Item 3.7 of the Disclosure Schedule, GTFV is not
a party
to any instruments, agreements, indentures, mortgages, guarantees,
notes,
commitments, accommodations, letters of credit or other arrangements
or
understandings, whether written or oral.
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(b)
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Except
as disclosed in Item 3.7 of the Disclosure Schedule, neither GTFV,
any
Subsidiary, nor, to the knowledge of GTFV or the GTFV Shareholder,
any
other person or entity is in breach in any material respect of, or
in
default in any material respect under, any material contract, agreement,
arrangement, commitment or plan to which GTFV is a party, and no
event or
action has occurred, is pending or is threatened, which, after the
giving
of notice, passage of time or otherwise, would constitute or result
in
such a material breach or material default by GTFV or, to the knowledge
of
GTFV, any other person or entity. GTFV has not received any notice
of
default under any contract, agreement, arrangement, commitment or
plan to
which it is a party, which default has not been cured to the satisfaction
of, or duly waived by, the party claiming such default on or before
the
date hereof.
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3.8 Personal
Property.
GTFV
has good and marketable title to all of its tangible personal property and
assets, including, without limitation, all of the assets reflected in the
Financial Statements that have not been disposed of in the ordinary course
of
business and such property is free and clear of all Encumbrances.
3.9 Real
Property.
Except
as set forth on Item 3.9 of the Disclosure Schedule, GTFV does not own, lease
or
sublease any real property.
3.10 Compliance
with Law.
GTFV is
not conducting its business or affairs in violation of any applicable federal,
state or local law, ordinance, rule, regulation, court or administrative order,
decree or process, or any requirement of insurance carriers. GTFV has not
received any notice of violation or claimed violation of any such law,
ordinance, rule, regulation, order, decree, process or requirement. GTFV is
in
compliance with all applicable federal, state, local and foreign laws and
regulations relating to the protection of the environment and human health.
There are no claims, notices, actions, suits, hearings, investigations,
inquiries or proceedings pending or, to the knowledge of GTFV or the GTFV
Shareholder, threatened against GTFV that are based on or related to any
environmental matters or the failure to have any required environmental permits,
and there are no past or present conditions that GTFV has reason to believe
are
likely to give rise to any material liability or other obligations of GTFV
or
any Subsidiary under any environmental laws.
3.11 Permits
and Licenses.
GTFV
has all certificates of occupancy, rights, permits, certificates, licenses,
franchises, approvals and other authorizations as are reasonably necessary
to
conduct its business and to own, lease, use, operate and occupy its assets,
at
the places and in the manner now conducted and operated, except those the
absence of which would not materially adversely affect its business. GTFV has
not received any written or oral notice or claim pertaining to the failure
to
obtain any material permit, certificate, license, approval or other
authorization required by any federal, state or local agency or other regulatory
body, the failure of which to obtain would materially and adversely affect
its
business.
3.12 Ordinary
Course.
GTFV
has conducted its business, maintained its real property and equipment and
kept
its books of account, records and files, substantially in the same manner as
previously conducted, maintained or kept and solely in the ordinary
course.
3.13 No
Adverse Changes.
There
have not been (a) any material adverse change in the business, prospects, the
financial or other condition, or the respective assets or liabilities of GTFV
as
reflected in the Financial Statements, (b) any material loss sustained by GTFV,
including, but not limited to any loss on account of theft, fire, flood,
explosion, accident or other calamity, whether or not insured, which has
materially and adversely interfered, or may materially and adversely interfere,
with the operation of GTFV's business, or (c) to the best knowledge of GTFV
or
the GTFV Shareholder, any event, condition or state of facts, including, without
limitation, the enactment, adoption or promulgation of any law, rule or
regulation, the occurrence of which materially and adversely does or would
affect the results of operations or the business or financial condition of
GTFV.
3.14 Litigation.
There
is no claim, dispute, action, suit, proceeding or investigation pending or,
to
the knowledge of GTFV or the GTFV Shareholder, threatened, against or affecting
the business of the GTFV, or challenging the validity or propriety of the
transactions contemplated by this Agreement, at law or in equity or before
any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, nor to the knowledge of the GTFV or the GTFV
Shareholder, has any such claim, dispute, action, suit, proceeding or
investigation been pending or threatened, during the 12 month period preceding
the date hereof; (b) there is no outstanding judgment, order, writ, ruling,
injunction, stipulation or decree of any court, arbitrator or federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality, against or materially affecting the business of GTFV ; and
(c)
GTFV has not received any written or verbal inquiry from any federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any law, rule or regulation
or any matter disclosed in respect of its business.
3.15 Insurance.
GTFV
does not currently maintain any form of insurance.
3.16 Articles
of Incorporation and By-laws; Minute Books.
The
copies of the Articles of Incorporation and By-laws (or similar governing
documents) of GTFV, and all amendments to each are true, correct and complete.
The minute books of the GTFV contains true and complete records of all meetings
and consents in lieu of meetings of their respective Board of Directors (and
any
committees thereof), or similar governing bodies, since the time of their
respective organization. The stock books of the GTFV are true, correct and
complete.
3.17 Employee
Benefit Plans.
GTFV
does not maintain, nor has GTFV maintained in the past, any employee benefit
plans ("as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), or any plans, programs, policies, practices,
arrangements or contracts (whether group or individual) providing for payments,
benefits or reimbursements to employees of GTFV, former employees, their
beneficiaries and dependents under which such employees, former employees,
their
beneficiaries and dependents are covered through an employment relationship
with
GTFV, any entity required to be aggregated in a controlled group or affiliated
service group with GTFV for purposes of ERISA or the Internal Revenue Code
of
1986 (the "Code") (including, without limitation, under Section 414(b), (c),
(m)
or (o) of the Code or Section 4001 of ERISA, at any relevant time ("Benefit
Plans").
3.18 Affiliate
Transactions.
Except
as disclosed in Item 3.18 of the Disclosure Schedule neither GTFV nor any
officer, director or employee of the GTFV (or any of the relatives or Affiliates
of any of the aforementioned Persons) is a party to any agreement, contract,
commitment or transaction with GTFV or affecting the business of GTFV, or has
any interest in any property, whether real, personal or mixed, or tangible
or
intangible, used in or necessary to GTFV which will subject GTFV, CryoPort
or
the CryoPort Shareholders to any liability or obligation from and after the
Closing Date.
3.19 Trading
and NASD Compliance.
GTFV’s
common stock is currently quoted on the Pink Sheets under the symbol “GTFV”, and
GTFV is in compliance with all NASD requirements and currently has on file
a
Form 15c2-11, which is true, correct and complete as of the date hereof and
the
Closing Date. The Form 15c2-11 does no make any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not
misleading.
3.20
Brokers,
etc.
GTFV is
not obligated to pay any fee or commission to any broker, finder or other
similar Person in connection with the transactions contemplated by this
Agreement (other than any fees or commissions that are solely for the account
of
GTFV).
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF CRYOPORT
CryoPort
represents and warrants to GTFV and the GTFV shareholder that the statements
contained in this Article IV are true and correct as of the date of this
Agreement and will be true and correct as of the Closing as though made as
of
the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties will be true and correct as of such date).
SECTION
4.1. POWER AND AUTHORITY; Enforceability. \
CryoPort
is a corporation duly organized, validly existing and in good standing under
the
laws of its jurisdiction of incorporation. CryoPort has all requisite capacity,
power and authority to execute, deliver and perform this Agreement. The Board
of
the Directors of CryoPort approved the transactions contemplated hereby at
a
duly noticed meeting held on February 10, 2005. The share exchanged contemplated
hereby was approved by CryoPort Shareholders owning in the aggregate 79% of
the
issued and outstanding stock of CryoPort at a duly noticed meeting held on
February 26, 2005. No other corporate action on the part of CryoPort is
necessary to authorize the execution and delivery by CryoPort of this Agreement
or the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered and, upon execution by CryoPort,
will constitute a valid and legally binding obligation of CryoPort, enforceable
against CryoPort in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws
of
general application affecting enforcement of creditors' rights generally and
(b)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
SECTION
4.2 Capitalization.
The
authorized capital stock of CryoPort consists of 30,000,000 shares of common
stock, no par value, and 5,000,000 shares of preferred stock, no par value,
of
which, as of the date hereof, there were 24,108,105 shares of common stock
and
nil shares of preferred stock, issued and outstanding. As of the date hereof,
CryoPort has outstanding options and warrant to purchase 2,508,988 and 1,832,257
shares of common stock, respectively.
SECTION
4.3. OWNERSHIP; TRANSFERABILITY. CryoPort represents that, the its best
knowledge, the CryoPort Shareholders are the legal and beneficial owner of
the
GTFV Shares, free and clear of any Encumbrance or restriction on transfer,
other
than (i) restrictions under the Act, (ii) restrictions reflected in a legend
on
the certificates representing the GTFV Shares.
SECTION
4.4. CONSENTS AND APPROVALS. Neither the execution, delivery and performance
of
this Agreement by CryoPort, nor the consummation by CryoPort of any transaction
related hereto, will require any consent, approval, license, Order or
authorization of, filing, registration, declaration or taking of any other
action with, or notice to, any Person, other than such consents, approvals,
filings or actions as may be required under the Federal securities laws which
have or will be made.
SECTION
4.5. NO CONFLICTS. The execution and delivery by CryoPort of this Agreement,
and
the consummation of the transactions contemplated by this Agreement shall not,
assuming the consents, approvals, filings or actions described in Section 4.4
are made or obtained, as the case may be, (a) contravene, conflict with, or
result in any violation or breach of any provision of the articles of
incorporation or by-laws of CryoPort, (b) result in any violation or breach
of,
or constitute (with or without notice or lapse of time, or both) a default
(or
give rise to a right of termination, cancellation or acceleration of any
obligation or loss of any benefit) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, contract or other
agreement, instrument or obligation to which CryoPort is a party or by which
it
or any of its properties or assets may be bound, or (c) conflict or violate
any
permit, concession, franchise, license, judgment, Order, decree, statute, law,
ordinance, rule or regulation of any government, governmental instrumentality
or
court, domestic or foreign, applicable to CryoPort or any of its properties
or
assets, except in the case of (b) and (c) for any such conflicts, violations,
defaults, terminations, cancellations or accelerations which would not,
individually or in the aggregate, materially and adversely affect the GTFV
Shares being conveyed by the CryoPort Shareholders.
SECTION
4.6. RESTRICTED. CryoPort understands that the CryoPort Shares are characterized
as "restricted securities" under the Federal securities laws and that under
such
laws and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances.
SECTION
4.7. LEGENDS. It is understood that the certificate(s) evidencing the CryoPort
Shares shall bear a legend substantially in the form below:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR WITH ANY STATE SECURITIES COMMISSION, AND MAY NOT
BE
TRANSFERRED OR DISPOSED OF BY THE HOLDER IN THE ABSENCE OF A REGISTRATION
STATEMENT WHICH IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE LAWS AND RULES OR UNLESS SUCH TRANSFER MAY BE EFFECTED WITHOUT VIOLATION
OF THE SECURITIES ACT OF 1933 AND OTHER APPLICABLE STATE LAWS AND
RULES.
SECTION
4.8. BROKERS, etc. CryoPort is not obligated to pay any fee or commission to
any
broker, finder or other similar Person in connection with the transactions
contemplated by this Agreement (other than any fees or commissions that are
solely for the account of CryoPort).
SECTION
4.9. REVERSE SPLITS. CryoPort hereby agrees that following the consummation
of
the transactions contemplated hereby it not to effectuate a reverse split of
its
common stock for a period of 24 consecutive months thereafter.
ARTICLE
V
CONDITIONS
PRECEDENT; RELATED COVENANTS
SECTION
5.1. CLOSING EFFORTS. Each of the parties hereto shall use its commercially
reasonable efforts ("Reasonable Efforts") to take all actions and to do all
things necessary, proper or advisable to consummate the transactions
contemplated by this Agreement, including using its reasonable best efforts
to
ensure that (i) its representations and warranties remain true and correct
in
all material respects through the Closing Date, and (ii) the conditions to
the
obligations of the other parties to consummate the transaction are
satisfied.
SECTION
5.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF CRYOPORT AND GTFV. The obligations
of CryoPort to transfer the CryoPort Shares and GTFV to transfer the GTFV Shares
at the Closing are subject to the fulfillment of the condition that, at the
Closing, the representations and warranties of GTFV and CryoPort set forth
in
this Agreement that are qualified as to materiality shall be true and correct
in
all respects, and all other representations and warranties of GTFV and CryoPort
set forth in this Agreement shall be true and correct in all material respects,
in each case as of the date of this Agreement and as of the Closing as though
made as of the Closing, except to the extent such representations and warranties
are specifically made as of a particular date (in which case such
representations and warranties shall be true and correct as of such
date).
SECTION
5.3 CRYOPORT
COVENANTS. Upon execution of this Agreement, Cryoport will immediately cause
to
be delivered to the CryoPort Shareholders notice of the share exchange and
the
procedures to be followed to consummate the exchange contemplated hereby. In
addition, as to those shareholders who did not consent to the transaction,
CryoPort shall deliver to them the dissenter’s rights information required to be
delivered pursuant to Chapter 13 of the General Corporation Law of California.
SECTION
5.4 INVESTMENT REPRESENTATION. In connection with the each CryoPort
Shareholder’s exchange of such shareholders shares, GTFV’s transfer agent shall
cause such shareholder to execute a representation in the form of the attached
Exhibit A.
SECTION
5.5 NAME CHANGE. Prior to the Closing, the GTFV Shareholder shall take all
steps
required by applicable law to obtain board and shareholder approval of a change
in GTFV’s name to CryoPort, Inc. Following receipt of the required approvals,
the appropriate documentation required to effect the name change shall be
prepared and signed by an officer of GTFV, which documentation shall be filed
with the Secretary of State of Nevada upon the Closing.
SECTION
5.6 OPTIONS AND WARRANTS. All options and warrants to purchase common stock
of
CryoPort outstanding as of the Closing, shall, upon the Closing be converted
into options and warrants to purchase an equal number of shares of GTFV common
stock at the same exercise prices.
ARTICLE
VI
TERMINATION
SECTION
6.1. TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing by the written consent of each party hereto.
SECTION
6.2. TERMINATION BY EITHER GTFV OR CRYOPORT. This Agreement may be terminated
(upon written notice from the terminating party hereto to the other party
hereto) and the transactions contemplated hereby may be abandoned by action
of
any party hereto, if (a) the Closing shall not have occurred on or prior to
___________, 2005 (unless, as of such time, a minimum of 50.1% of the GTFV
Shares have been tendered for exchange), or (b) any Federal, state or local
government or any court, administrative agency or commission or other
governmental authority or agency, domestic or foreign shall have issued a Law
or
Order permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such Law or Order shall have become final
and nonappealable.
SECTION
6.3. EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination of
this
Agreement pursuant to this Article VI hereof, no party hereto or, its directors
or officers or other controlling persons shall have any liability or further
obligation to any other party hereto pursuant to this Agreement, except that
Article VIII hereof shall survive termination of this Agreement and nothing
herein will relieve any party hereto from liability for any breach of this
Agreement occurring prior to such termination.
ARTICLE
VII
INDEMNIFICATION
SECTION
7.1 The GTFV Shareholder hereby agrees to defend, indemnify and hold harmless
each of GTFV, CryoPort and the CryoPort Shareholders (each an “Indemnified
Party”), from an against, and to reimburse each Indemnified Party with respect
to, all liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys’ fees and disbursements, asserted against or incurred by
such Indemnified Party by reason of, arising out of, or in connection with
any
(i) transaction, act or omission to act by GTFV and/or any shareholder, director
or officer thereof prior to the Closing Date, and (ii) material breach of any
representation or warranty contained in this Agreement made by GTFV and/or
the
GTFV Shareholder or in any document or certificate delivered by GTFV and/or
the
GTFV Shareholder pursuant to the provisions of this Agreement or in any
connection with the transactions contemplated thereby. As security for the
foregoing indemnification obligation, the GTFV shareholder agrees to place
into
a mutually acceptable escrow 200,000 shares of GTFV common stock for a period
of
one year. The shares held in escrow shall be sold and the proceeds used to
satisfy any indemnification claim that the GTFV and/or the GTFV Shareholder
shall be required to satisfy pursuant to Section 7.3 below.
Section
7.2 Indemnity
of GTFV.
CryoPort agrees to defend, indemnify and hold harmless GTFV and the GTFV
Shareholder from and against, and to reimburse the Company with respect to,
all
liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, asserted against or incurred
by
such Seller by reason of, arising out of, or in connection with any material
breach of any representation or warranty contained in this Agreement and made
by
CryoPOrt or in any document or certificate delivered by CryoPort pursuant to
the
provisions of this Agreement or in connection with the transactions contemplated
thereby.
Section
7.3 Indemnification
Procedure.
A party
(an "Indemnified Party") seeking indemnification shall give prompt notice to
the
other party (the "Indemnifying Party") of any claim for indemnification arising
under this Article VII. The Indemnifying Party shall have the right to assume
and to control the defense of any such claim with counsel reasonably acceptable
to such Indemnified Party, at the Indemnifying Party's own cost and expense,
including the cost and expense of reasonable attorneys' fees and disbursements
in connection with such defense, in which event the Indemnifying Party shall
not
be obligated to pay the fees and disbursements of separate counsel for such
in
such action. In the event, however, that such Indemnified Party's legal counsel
shall determine that defenses may be available to such Indemnified Party that
are different from or in addition to those available to the Indemnifying Party,
in that there could reasonably be expected to be a conflict of interest if
such
Indemnifying Party and the Indemnified Party have common counsel in any such
proceeding, or if the Indemnified Party has not assumed the defense of the
action or proceedings, then such Indemnifying Party may employ separate counsel
to represent or defend such Indemnified Party, and the Indemnifying Party shall
pay the reasonable fees and disbursements of counsel for such Indemnified Party.
No settlement of any such claim or payment in connection with any such
settlement shall be made without the prior consent of the Indemnifying Party
which consent shall not be unreasonably withheld.
ARTICLE
VIII
GENERAL
PROVISIONS; OTHER AGREEMENTS
SECTION
8.1. PRESS RELEASES. Other than any required filings under the Federal
securities laws, none of the parties hereto will, without first obtaining the
approval of the other, make any public announcement, directly or indirectly,
regarding this Agreement, nor the nature of the transaction contemplated by
this
Agreement, to any person except as required by law or regulatory bodies and
other than to the respective principals or other representatives of the Parties,
each of whom shall be similarly bound by such confidentiality obligations.
If
any such press release or public announcement is so required by either party
(except in the case of any disclosure required under the Federal securities
laws
to be made in a filing with the Securities and Exchange Commission), the
disclosing party shall consult with the other parties prior to making such
disclosure, and the parties shall use all reasonable efforts, acting in good
faith, to agree upon a text for such disclosure which is satisfactory to each
of
the parties.
SECTION
8.2. TAX-FREE TRANSACTION. From and after the date of this Agreement, CryoPort
shall use all reasonable efforts to cause the transactions contemplated hereby
to qualify, and shall not knowingly take any actions or permit any actions
to be
taken that could reasonably be expected to prevent said transactions from
qualifying as a "reorganization" under Section 368(a) of the Code. This
Agreement shall be, and hereby is, adopted by CryoPort as a plan of
reorganization for purposes of Section 368 of the Code.
Section
8.3 Survival
of Representations, Warranties and Agreements.
All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for so long as the applicable statute of limitations
shall remain open. Each of the parties hereto is executing and carrying out
the
provisions of this agreement in reliance upon the representations, warranties
and covenants and agreements contained in this agreement or at the closing
of
the transactions herein provided for and not upon any investigation which it
might have made or any
representations, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth
herein.
Section
8.4 Access
to Books and Records.
During
the course of this transaction through Closing, each party agrees to make
available for inspection all corporate books, records and assets, and otherwise
afford to each other and their respective representatives, reasonable access
to
all documentation and other information concerning the business, financial
and
legal conditions of each other for the purpose of conducting a due diligence
investigation thereof. Such due diligence investigation shall be for the purpose
of satisfying each party as to the business, financial and legal condition
of
each other for the purpose of determining the desirability of consummating
the
proposed transaction. The parties further agree to keep confidential and not
use
for their own benefit, except in accordance with this Agreement any information
or documentation obtained in connection with any such investigation.
Section
8.5 Further
Assurances.
If, at
any time after the Closing, the parties shall consider or be advised that any
further deeds, assignments or assurances in law or that any other things are
necessary, desirable or proper to complete the merger in accordance with the
terms of this agreement or to vest, perfect or confirm, of record or otherwise,
the title to any property or rights of the parties hereto, the parties agree
that their proper officers and directors shall execute and deliver all such
proper deeds, assignments and assurances in law and do all things necessary,
desirable or proper to vest, perfect or confirm title to such property or rights
and otherwise to carry out the purpose of this Agreement, and that the proper
officers and directors the parties are fully authorized to take any and all
such
action.
SECTION
8.6. EXPENSES. Regardless of whether the transactions contemplated hereby are
consummated, all legal and other costs and expenses incurred in connection
with
this Agreement and the transactions contemplated hereby shall be paid by the
party hereto incurring such costs and expenses.
SECTION
8.7. GOVERNING LAW. This Agreement shall be governed by and construed
in
accordance
with the laws of the State of Nevada without regard to the conflicts of laws
provisions thereof.
SECTION
8.5. HEADINGS. Article and Section headings used in this Agreement are for
convenience only and shall not affect the meaning or construction of this
Agreement.
SECTION
8.6. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto and supersedes all prior agreements and understandings,
both
written and oral, with respect to the subject matter hereof.
SECTION
8.7. AMENDMENT. Any term of this Agreement may be modified or amended only
by an
instrument in writing signed by each of the parties hereto.
SECTION
8.8. SEVERABILITY. If one or more provisions of this Agreement are held to
be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforced in accordance with its
terms.
SECTION
8.9. NOTICES. All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
CryoPort
Systems, Inc.
451
Atlas
Street
Brea,
California 92821
Phone
714-256-6104
Fax
714-256-6110
Peter
Berry, President and Chief Executive Officer
AND,
G
T 5-Limited
36181
East Lake Rd.,
1112
Suite 170
Palm
Harbor, FL34685
Fax
727-937-1074
Phone
727-937-4374 or 727-204-4627
Dante
M.
Panella, President
SECTION
9. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. Signatures on this Agreement may be
communicated by facsimile transmission and shall be binding upon the parties
hereto so transmitting their signatures. Counterparts with original signatures
shall be provided to the other parties hereto following the applicable facsimile
transmission; provided that the failure to provide the original counterpart
shall have no effect on the validity or the binding nature of this
Agreement.
Remainder
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Signature
page follows
1
413980.3
Signature
page to Stock Exchange Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Exchange Agreement
to
be duly executed and delivered as of the date set forth above.
CryoPort
Systems, Inc. G
T 5-Limited
By:_/s/
Patrick
L. Mullens_ _ By:/s/
Dante M. Panella
Patrick
Mullens, M.D., President Dante
M.
Panella, President
1
413980.3