EXHIBIT 10.18
CORD BLOOD AMERICA, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: March __, 2005
Newbridge Securities Corporation
1451 Cypress Creek Road, Suite 204
Fort Lauderdale, Florida 33309
Ladies and Gentlemen:
The undersigned, Cord Blood America, Inc., a Florida corporation
(the
"Company"), hereby agrees with Newbridge
Securities Corporation (the "Placement
Agent") and Cornell Capital Partners, LP, a
Delaware Limited Partnership (the
"Investor"), as follows:
1. Offering. The Company hereby engages the Placement Agent to act
as
its exclusive placement agent in connection
with the Standby Equity Distribution
Agreement dated the date hereof (the
"Standby Equity Distribution Agreement"),
pursuant to which the Company shall issue
and sell to the Investor, from time to
time, and the Investor shall purchase from
the Company (the "Offering") up to
Five Million U.S. Dollars ($5,000,000) of
the Company's common stock (the
"Commitment Amount"), par value US$0.0001
per share (the "Common Stock"), at
price per share equal to the Purchase
Price, as that term is defined in the
Standby Equity Distribution Agreement. The
Placement Agent services shall
consist of reviewing the terms of the
Standby Equity Distribution Agreement and
advising the Company with respect to those
terms.
All capitalized terms used herein and not otherwise defined
herein
shall have the same meaning ascribed to
them as in the Standby Equity
Distribution Agreement. The Investor will
be granted certain registration rights
with respect to the Common Stock as more
fully set forth in the Registration
Rights Agreement between the Company and
the Investor dated the date hereof (the
"Registration Rights Agreement"). The
documents to be executed and delivered in
connection with the Offering, including,
but not limited, to the Company's
latest Quarterly Report on Form 10-QSB as
filed with the United States
Securities and Exchange Commission, this
Agreement, the Standby Equity
Distribution Agreement, the Registration
Rights Agreement, and the Escrow
Agreement dated the date hereof (the
"Escrow Agreement"), are referred to
sometimes hereinafter collectively as the
"Offering Materials." The Company's
Common Stock purchased by the Investor
hereunder or to be issued in connection
with the conversion of any debentures are
sometimes referred to hereinafter as
the "Securities." The Placement Agent shall
not be obligated to sell any
Securities.
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2. Compensation.
A. Upon the execution of this Agreement, the Company shall issue to
the
Placement Agent or its designee shares of
the Company's Common Stock in an
amount equal to Ten Thousand U.S. Dollars
(US$10,000) divided by the volume
weighted average price of the Company's
Common Stock, as quoted by Bloomberg,
LP, on the date hereof (the "Placement
Agent's Shares"). The Placement Agent
shall be entitled to "piggy-back"
registration rights, which shall be triggered
upon registration of any shares of Common
Stock by the Company pursuant to the
Registration Rights Agreement dated the
date hereof.
3. Representations, Warranties
and Covenants of the Placement Agent.
A. The Placement Agent represents, warrants and covenants as
follows:
(i) The
Placement Agent has the necessary power to enter into
this Agreement and to consummate the
transactions contemplated hereby.
(ii) The
execution and delivery by the Placement Agent of this
Agreement and the consummation of the
transactions contemplated herein will not
result in any violation of, or be in
conflict with, or constitute a default
under, any agreement or instrument to which
the Placement Agent is a party or by
which the Placement Agent or its properties
are bound, or any judgment, decree,
order or, to the Placement Agent's
knowledge, any statute, rule or regulation
applicable to the Placement Agent. This
Agreement when executed and delivered by
the Placement Agent, will constitute the
legal, valid and binding obligations of
the Placement Agent, enforceable in
accordance with their respective terms,
except to the extent that (a) the
enforceability hereof or thereof may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
from time to time in effect and affecting
the rights of creditors generally, (b)
the enforceability hereof or thereof is
subject to general principles of equity,
or (c) the indemnification provisions
hereof or thereof may be held to be in
violation of public policy.
(iii) Upon receipt and
execution of this Agreement, the Placement
Agent will promptly forward copies of this
Agreement to the Company or its
counsel and the Investor or its
counsel.
(iv) The
Placement Agent will not intentionally take any action
that it reasonably believes would cause the
Offering to violate the provisions
of the Securities Act of 1933, as amended
(the "1933 Act"), the Securities
Exchange Act of 1934 (the "1934 Act"), the
respective rules and regulations
promulgated thereunder (the "Rules and
Regulations") or applicable "Blue Sky"
laws of any state or jurisdiction.
(v) The
Placement Agent is a member of the National Association
of Securities Dealers, Inc., and is a
broker-dealer registered as such under the
1934 Act and under the securities laws of
the states in which the Securities
will be offered or sold by the Placement
Agent unless an exemption for such
state registration is available to the
Placement Agent. The Placement Agent is
in material compliance with the rules and
regulations applicable to the
Placement Agent generally and applicable to
the Placement Agent's participation
in the Offering.
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4. Representations and
Warranties of the Company.
A. The Company represents and warrants as follows:
(i) The
execution, delivery and performance of each of this
Agreement, the Standby Equity Distribution
Agreement, the Escrow Agreement, and
the Registration Rights Agreement have been
or will be duly and validly
authorized by the Company and is, or with
respect to this Agreement, the Standby
Equity Distribution Agreement, the Escrow
Agreement, and the Registration Rights
Agreement, will be a valid and binding
agreement of the Company, enforceable in
accordance with its respective terms,
except to the extent that (a) the
enforceability hereof or thereof may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
from time to time in effect and
affecting the rights of creditors
generally, (b) the enforceability hereof or
thereof is subject to general principles of
equity or (c) the indemnification
provisions hereof or thereof may be held to
be in violation of public policy.
The Securities to be issued pursuant to the
transactions contemplated by this
Agreement and the Standby Equity
Distribution Agreement have been duly
authorized and, when issued and paid for in
accordance with this Agreement, the
Standby Equity Distribution Agreement and
the certificates/instruments
representing such Securities, will be valid
and binding obligations of the
Company, enforceable in accordance with
their respective terms, except to the
extent that (1) the enforceability thereof
may be limited by bankruptcy,
insolvency, reorganization, moratorium or
similar laws from time to time in
effect and affecting the rights of
creditors generally, and (2) the
enforceability thereof is subject to
general principles of equity. All corporate
action required to be taken for the
authorization, issuance and sale of the
Securities has been duly and validly taken
by the Company.
(ii) The Company has a duly authorized,
issued and outstanding
capitalization as set forth herein and in
the Standby Equity Distribution
Agreement. The Company is not a party to or
bound by any instrument, agreement
or other arrangement providing for it to
issue any capital stock, rights,
warrants, options or other securities,
except for this Agreement, the agreements
described herein and as described in the
Standby Equity Distribution Agreement,
dated the date hereof and the agreements
described therein. All issued and
outstanding securities of the Company, have
been duly authorized and validly
issued and are fully paid and
non-assessable; the holders thereof have no rights
of rescission or preemptive rights with
respect thereto and are not subject to
personal liability solely by reason of
being security holders; and none of such
securities were issued in violation of the
preemptive rights of any holders of
any security of the Company.
(iii) The Common Stock
to be issued in accordance with this
Agreement and the Standby Equity
Distribution Agreement has been duly authorized
and, when issued and paid for in accordance
with this Agreement, the Standby
Equity Distribution Agreement and the
Compensation Debenture, the
certificates/instruments representing such
Common Stock will be validly issued,
fully-paid and non-assessable; the holders
thereof will not be subject to
personal liability solely by reason of
being such holders; such Securities are
not and will not be subject to the
preemptive rights of any holder of any
security of the Company.
(iv) The Company
has good and marketable title to, or valid and
enforceable leasehold estates in, all items
of real and personal property
necessary to conduct its business
(including, without limitation, any real or
personal property stated in the Offering
Materials to be owned or leased by the
Company), free and clear of all liens,
encumbrances, claims, security interests
and defects of any material nature
whatsoever, other than those set forth in the
Offering Materials and liens for taxes not
yet due and payable.
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(v) There
is no litigation or governmental proceeding pending or,
to the best of the Company's knowledge,
threatened against, or involving the
properties or business of the Company,
except as set forth in the Offering
Materials.
(vi) The Company
has been duly organized and is validly existing
as a corporation in good standing under the
laws of the State of Florida. Except
as set forth in the Offering Materials, the
Company does not own or control,
directly or indirectly, an interest in any
other corporation, partnership,
trust, joint venture or other business
entity. The Company is duly qualified or
licensed and in good standing as a foreign
corporation in each jurisdiction in
which the character of its operations
requires such qualification or licensing
and where failure to so qualify would have
a material adverse effect on the
Company. The Company has all requisite
corporate power and authority, and all
material and necessary authorizations,
approvals, orders, licenses, certificates
and permits of and from all governmental
regulatory officials and bodies
(domestic and foreign) to conduct its
businesses (and proposed business) as
described in the Offering Materials. Any
disclosures in the Offering Materials
concerning the effects of foreign, federal,
state and local regulation on the
Company's businesses as currently conducted
and as contemplated are correct in
all material respects and do not omit to
state a material fact. The Company has
all corporate power and authority to enter
into this Agreement, the Standby
Equity Distribution Agreement, the
Registration Rights Agreement, and the Escrow
Agreement, to carry out the provisions and
conditions hereof and thereof, and
all consents, authorizations, approvals and
orders required in connection
herewith and therewith have been obtained.
No consent, authorization or order
of, and no filing with, any court,
government agency or other body is required
by the Company for the issuance of the
Securities or execution and delivery of
the Offering Materials except for
applicable federal and state securities laws.
The Company, since its inception, has not
incurred any liability arising under
or as a result of the application of any of
the provisions of the 1933 Act, the
1934 Act or the Rules and Regulations.
(vii) There has been
no material adverse change in the condition or
prospects of the Company, financial or
otherwise, from the latest dates as of
which such condition or prospects,
respectively, are set forth in the Offering
Materials, and the outstanding debt, the
property and the business of the
Company conform in all material respects to
the descriptions thereof contained
in the Offering Materials.
(viii) Except as set forth in the Offering Materials, the Company
is
not in breach of, or in default under, any
term or provision of any material
indenture, mortgage, deed of trust, lease,
note, loan or Standby Equity
Distribution Agreement or any other
material agreement or instrument evidencing
an obligation for borrowed money, or any
other material agreement or instrument
to which it is a party or by which it or
any of its properties may be bound or
affected. The Company is not in violation
of any provision of its charter or
by-laws or in violation of any franchise,
license, permit, judgment, decree or
order, or in violation of any material
statute, rule or regulation. Neither the
execution and delivery of the Offering
Materials nor the issuance and sale or
delivery of the Securities, nor the
consummation of any of the transactions
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contemplated in the Offering Materials nor
the compliance by the Company with
the terms and provisions hereof or thereof,
has conflicted with or will conflict
with, or has resulted in or will result in
a breach of, any of the terms and
provisions of, or has constituted or will
constitute a default under, or has
resulted in or will result in the creation
or imposition of any lien, charge or
encumbrance upon any property or assets of
the Company or pursuant to the terms
of any indenture, mortgage, deed of trust,
note, loan or any other agreement or
instrument evidencing an obligation for
borrowed money, or any other agreement
or instrument to which the Company may be
bound or to which any of the property
or assets of the Company is subject except
(a) where such default, lien, charge
or encumbrance would not have a material
adverse effect on the Company and (b)
as described in the Offering Materials; nor
will such action result in any
violation of the provisions of the charter
or the by-laws of the Company or,
assuming the due performance by the
Placement Agent of its obligations
hereunder, any material statute or any
material order, rule or regulation
applicable to the Company of any court or
of any foreign, federal, state or
other regulatory authority or other
government body having jurisdiction over the
Company.
(ix) Subsequent
to the dates as of which information is given in
the Offering Materials, and except as may
otherwise be indicated or contemplated
herein or therein and the securities
offered pursuant to the Securities Purchase
Agreement dated the date hereof, the
Company has not (a) issued any securities
or incurred any liability or obligation,
direct or contingent, for borrowed
money, or (b) entered into any transaction
other than in the ordinary course of
business, or (c) declared or paid any
dividend or made any other distribution on
or in respect of its capital stock. Except
as described in the Offering
Materials, the Company has no outstanding
obligations to any officer or director
of the Company.
(x) There
are no claims for services in the nature of a finder's
or origination fee with respect to the sale
of the Common Stock or any other
arrangements, agreements or understandings
that may affect the Placement Agent's
compensation, as determined by the National
Association of Securities Dealers,
Inc.
(xi) The Company
owns or possesses, free and clear of all liens or
encumbrances and rights thereto or therein
by third parties, the requisite
licenses or other rights to use all
trademarks, service marks, copyrights,
service names, trade names, patents, patent
applications and licenses necessary
to conduct its business (including, without
limitation, any such licenses or
rights described in the Offering Materials
as being owned or possessed by the
Company) and, except as set forth in the
Offering Materials, there is no claim
or action by any person pertaining to, or
proceeding, pending or threatened,
which challenges the exclusive rights of
the Company with respect to any
trademarks, service marks, copyrights,
service names, trade names, patents,
patent applications and licenses used in
the conduct of the Company's businesses
(including, without limitation, any such
licenses or rights described in the
Offering Materials as being owned or
possessed by the Company) except any claim
or action that would not have a material
adverse effect on the Company; the
Company's current products, services or
processes do not infringe or will not
infringe on the patents currently held by
any third party.
(xii) Except as
described in the Offering Materials, the Company is
not under any obligation to pay royalties
or fees of any kind whatsoever to any
third party with respect to any trademarks,
service marks, copyrights, service
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names, trade names, patents, patent
applications, licenses or technology it has
developed, uses, employs or intends to use
or employ, other than to their
respective licensors.
(xiii) Subject to the performance by the Placement Agent of its
obligations hereunder the offer and sale of
the Securities complies, and will
continue to comply, in all material
respects with the requirements of Rule 506
of Regulation D promulgated by the SEC
pursuant to the 1933 Act and any other
applicable federal and state laws, rules,
regulations and executive orders.
Neither the Offering Materials nor any
amendment or supplement thereto nor any
documents prepared by the Company in
connection with the Offering will contain
any untrue statement of a material fact or
omit to state any material fact
required to be stated therein or necessary
to make the statements therein, in
light of the circumstances under which they
were made, not misleading. All
statements of material facts in the
Offering Materials are true and correct as
of the date of the Offering Materials.
(xiv) All material
taxes which are due and payable from the Company
have been paid in full or adequate
provision has been made for such taxes on the
books of the Company, except for those
taxes disputed in good faith by the
Company
(xv) None of the
Company nor any of its officers, directors,
employees or agents, nor any other person
acting on behalf of the Company, has,
directly or indirectly, given or agreed to
give any money, gift or similar
benefit (other than legal price concessions
to customers in the ordinary course
of business) to any customer, supplier,
employee or agent of a customer or
supplier, or official or employee of any
governmental agency or instrumentality
of any government (domestic or foreign) or
any political party or candidate for
office (domestic or foreign) or other
person who is or may be in a position to
help or hinder the business of the Company
(or assist it in connection with any
actual or proposed transaction) which (A)
might subject the Company to any
damage or penalty in any civil, criminal or
governmental litigation or
proceeding, or (B) if not given in the
past, might have had a materially adverse
effect on the assets, business or
operations of the Company as reflected in any
of the financial statements contained in
the Offering Materials, or (C) if not
continued in the future, might adversely
affect the assets, business, operations
or prospects of the Company in the
future.
5. Representations, Warranties
and Covenants of the Investor.
A. The Investor represents, warrants and covenants as follows:
(i) The
Investor has the necessary power to enter into this
Agreement and to consummate the
transactions contemplated hereby.
(ii) The
execution and deliver
