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Exhibit 10.115
February 23, 2007
Board
of Directors
Cord
Blood America, Inc.
9000 West Sunset Boulevard Suite 400
Los Angeles, CA 90069
Attn:
Matt Schissler, Founder, Chairman, and Chief Executive Officer
RE: Placement Agent Agreement
Gentlemen,
The purpose
of this letter agreement (the “ Agreement ”) is
to set forth the terms and conditions pursuant to which Capital
Growth Resources (“CGR”) shall serve as exclusive
Placement Agent in connection with the placement of new securities
(the “ Placement ” or “ Offering
”), of Cord Blood America, Inc. (the “Company”),
either alone or in conjunction with other Broker-Dealers, for the
purposes of financing the expansion of the business and execution
of the business plan.
Upon the
terms and subject to the conditions of this Agreement, the parties
hereto agree as follows:
1.
The
Offering . This Offering will consist of a
“best efforts, all or none” minimum offering of
5,000,000 shares and a maximum offering of 50,000,000 shares of the
Company's shares Series A Common Stock, no par value (the "Common
Stock"). The Common Stock shall be offered and sold by the Company
at a price of $.101 per share with a minimum purchase of 505,000
shares, or such lesser amount as the Company may approve on a
subscription by subscription basis, for minimum gross offering
proceeds of _____ (the “Minimum Offering) and maximum gross
offering proceeds of $5,050,000 (the “Maximum
Offering”) (the Minimum Offering and the Maximum Offering
shall hereinafter be referred to collectively as the
“Offering”). The Shares shall be offered in reliance
upon Section 4(2) and Rule 506 of Regulation D as promulgated under
the Securities Act of 1933, as amended (the “Act”) and
shall be sold solely to “Accredited Investors,” as that
term is defined in Rule 501 of Regulation D.
Legends . The Common Stock shall be sold by the
Company and distributed by Placement Agent in transactions that
shall be exempt from registration under Section 5 of the Securities
Act of 1933, as amended (the “Act”) in reliance upon
Section 4(2) and/or Rule 506 of Regulation D, as promulgated under
the Act (the “Regulation D Offering”). The
Company and the Placement Agent shall take all steps necessary to
fully comply with the terms of Section 4(2) and Rule 506 of
Regulation D. In connection therewith, each of the
certificates evidencing the Common Stock shall be dated the date of
such Closing and shall bear the following restrictive legend
limiting their resale under Rule 144 of the Act:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED PURSUANT TO A TRANSACTION EFFECTED IN RELIANCE UPON
SECTION 4(2) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), AND HAVE NOT BEEN THE SUBJECT OF A REGISTRATION
STATEMENT UNDER THE ACT OR ANY STATE SECURITIES ACT. THESE
SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR APPLICABLE EXEMPTION THEREFROM UNDER THE
ACT OR ANY APPLICABLE STATE SECURITIES ACT.”
Board of Directors
Cord
Blood America, Inc.
September 6, 2006
Page 2
of 14
2.
Appointment . Effective as of the date hereof, the
Company hereby retains CGR and CGR hereby agrees to act as the
Company's exclusive Placement Agent in connection with the Offering
of the Common Stock. The Company expressly acknowledges and agrees
that CGR's obligations hereunder are on a reasonable best efforts
basis only and that the execution of this Agreement does not
constitute a commitment by CGR to purchase the Common Stock, nor
does it ensure the successful arrangement of the Placement of the
Common Stock or any portion thereof or the success of CGR with
respect to securing any other financing on behalf of the Company.
If the Minimum Offering is not completed within one hundred
twenty (120) days from the Effective Date, as described herein, all
consideration received as a result of subscriptions for Common
Stock offered by the Company will be refunded to the subscribers
together with interest, if any, which has accrued thereon, on a
prorata basis without any commissions or expenses. The
“Effective Date” of the Offering shall mean the first
Friday following the day upon which the Placement Agent has
received from the Company: (1) a completed “due
diligence” package; (2) an executed Placement Agent
Agreement; and (3) completed offering documents and disclosure
materials in form and substance satisfactory to the Placement
Agent, in its sole and absolute discretion. The Company and
the Placement Agent may mutually agree to extend the foregoing one
hundred twenty (120) day period for an additional sixty (60) days
on the same placement terms and conditions that were in effect for
the initial one hundred twenty (120) days. Placement Agent
shall promptly deposit funds derived from the Offering, conducted
by the Company, into an escrow account established at U.S. Bank
National Association, who shall serve as Escrow Agent. All
funds tendered in connection with the purchase of the Common Stock,
will be deposited with such Escrow Agent and shall be distributed
through mutual instructions. Both the Company and the
Placement Agent shall enter into a binding Escrow Agreement with
the Escrow Agent upon terms agreeable among the parties.
2
Board of Directors
Cord
Blood America, Inc.
September 6, 2006
Page 3
of 14
The above
commitments by CGR are subject to the following conditions:
a.
receipt
by CGR of all information and verifications thereof, which CGR or
its legal counsel may reasonably request from the Company, in a
manner and form satisfactory to the Placement Agent and its legal
counsel;
b.
the
Company’s officers and key employees shall have entered into
employment contracts with the Company, containing suitable
non-compete and non-disclosure provisions and such other provisions
as the Placement Agent may reasonably request;
c.
the
number of issued and outstanding Shares and the Company’s
outstanding capital structure shall be satisfactory to the
Placement Agent, in its sole and absolute discretion; and
CGR shall
act exclusively as agent and not as principal in selling the Common
stock on a best efforts basis. CGR may, in its discretion,
negotiate with other broker-dealers who, acting severally, would
contract to sell, as agents, portions of the Common stock being
offered.
CGR may
terminate the Offering at any time: (i) in the event of war;
(ii) in the event of any material adverse change in the business,
property or financial condition of the Company (of which CGR shall
be the sole judge); (iii) in the event of any action, suit or
proceeding at law or at equity against the Company, or by any
federal, state or other commission, board or agency, where any
unfavorable decision would materially adversely affect the
business, property, financial condition or income of the Company;
or (iv) in the event of adverse market conditions, of which event
CGR is to be the sole judge. Further, CGR’s commitment
will be subject to receipt by CGR of all information and
verifications thereof, which CGR or their counsel may reasonably
request from the Company and its Shareholders.
3.
Fees
and Compensation . In consideration of the services to be
rendered by CGR in connection with the Placement of the Common
stock, the Company agrees to pay CGR the following fees and other
compensation:
a.
subject to completion of
the Minimum Offering, the Company shall pay Placement Agent a cash
commission of ten percent (10%) and a cash non-accountable expense
fee of three percent (3%); and
That the
Company shall issue to Capital Growth Resources warrants to
purchase 13% of the total number of Shares of Common Stock sold in
the Offering. Such warrants will expire five (5) years from their
respective date of issuance and will be exercisable at any time
after their respective dates of issuance at a price of $0.101 per
share (“Placement Agent’s Warrants”). The right
to such Placement Agent’s Warrants shall vest upon the sale
of the Minimum Offering and the Company shall issue such warrants
at the time of closing the Offering. The Placement Agents Warrants
attributable to sale of Shares in the Offering shall be issuable by
the Company to Capital Growth Resources pursuant to Section 4(2) of
the Act and shall be transferable and assignable by Capital Growth
Resources to participating agents and its officers. In addition,
the Placement Agent’s Warrants shall possess suitable
anti-dilution provisions
The
Placement agent warrants, which will be acquired by CGR, shall be
non-assessable and shall have unlimited piggy-back registration
rights in the event the Company files a Registration Statement
pursuant to the Securities Act of 1933, as amended, for
registration of Company Shares.
4.
Expenses . The Company shall be responsible for
and shall bear all expenses directly and
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Board of Directors
Cord
Blood America, Inc.
September 6, 2006
Page 4
of 14
necessarily incurred in
connection with the Offering, including, but not limited to:
the fees and expenses of its legal counsel and Placement
Agent’s legal counsel; blue-sky costs and expenses, including
the costs of legal counsel; the costs of preparing, printing and
delivering all offering materials utilized in connection with the
offer and sale of the Common stock; the costs of preparing,
printing and delivering all Placement and selling documents,
Placement Agent Agreement, Agreement Among Placing Agents, Selling
Agreement, Selected Agent Agreement, officer and director
questionnaires; costs of any tombstones and printing fees; any
escrow fees; and transfer fees for Common stock issued. If
the proposed financing is not completed because the Company
prevents it or because of a material breach by the Company of any
such covenants, representations or warranties contained in this
Placement Agent Agreement, the Company’s liability for
Placement Agent’s expenses shall be equal to $15,000 and
shall be due Placement Agent regardless of whether any of the
Company’s Common stock is sold in the Offering, it being
agreed amongst the parties that calculating Placement Agent’s
expenses would be very difficult if not impossible.
5.
Representations and Warranties of the Company . The
Company and its management represents and warrants to, and agrees
with, CGR that:
a.
MEMORANDUM.
The Company will prepare a disclosure memorandum (the "
Memorandum ") and its related exhibits, which may be
supplemented from time to time, which contains information,
accurate as of the date specified therein, of the kind specified by
applicable statutes and regulations, including without limitation:
(i) terms of the Placement; (ii) a description of the Common stock
being offered; (iii) a description of the business conducted by the
Company; (iv) the financial condition of the Company; (v) past
activities of the Company; (vi) commissions and compensation to be
paid to CGR in connection with this Placement; and (vii)
information regarding the Company, its management, material
obligations, liabilities, any pending or threatened lawsuits or
proceedings, and recent material changes in financial condition.
The Memorandum, including all exhibits thereto, as of its date and
at all times subsequent thereto, up to and including the
Termination Date, does not and will not include 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 in which they were made, not
misleading.
b.
ADDITIONAL
INFORMATION. The Company shall provide to CGR, such
information, documents and instruments as may be required under
Sections 4(2) and 4(6) of the Securities Act of 1933, as amended,
and Regulation D thereunder.
c.
NO FINDER /
INVESTMENT ADVISOR. No person has acted as a finder or
investment adviser in connection with the transactions contemplated
herein and the Company will indemnify CGR with respect to any claim
for finders’ fees in connection with the transactions
contemplated hereby. No officer, director or Shareholder of
the Company is a member of the NASD, an employee or associated
member of the NASD. The Company has not promised or represented to
any person that any part of the Common stock will be directed or
otherwise made available to them in connection with the proposed
Placement. The Company has separately disclosed to CGR all
potential conflicts of interest involving officers, directors,
Principal Shareholders and/or employees.
6.
Obligations of the Company . The obligations of
CGR hereunder will be subject to the accuracy of the
representations and warranties of the Company herein contained, as
of the date hereof, and as of the date of each closing by the
Company related to the Placement, to the performance by the Company
of its obligations hereunder, and to the following additional
conditions:
4
Board of Directors
Cord
Blood America, Inc.
September 6, 2006
Page 5
of 14
a.
MEMORANDUM.
The Company will furnish to CGR, without charge, as many copies of
the Memorandum (and any amended or supplemental Memorandum) as CGR
may reasonably request. If any event occurs as the result of which
the Memorandum, as then amended or supplemented, would include an
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 in which they were made not misleading, or if it
shall be necessary to amend or supplement the Memo
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