AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 9, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CRYO-CELL INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 22-302-3093
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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Daniel Richard, Chief Executive Officer
604 Packard Court
Safety Harbor, FL 34695
(813) 938-3114
(Address of Registrant's principal executive offices, including zip code)
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ADVISOR COMPENSATION PLAN
(Full title of the Plan)
Mark Richard, Esquire
304 Palermo Avenue
Coral Gables, FL 33134
(305) 443-5125
(Name, address and telephone number of agent for service)
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COPIES TO:
Lawrence W. Horwitz, Esq.
Horwitz & Beam
Two Venture Plaza, Suite 380
Irvine, CA 92718
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Approximate Date of Proposed Sale to the Public:
As soon as practicable after this Registration Statement becomes effective.
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<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE PRICE
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<S> <C> <C> <C> <C>
Common Stock,
$0.01 Par Value(1) 10,000(1) $4.0000(2) $40,000 $12.12
<FN>
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(1) Includes 10,000 shares of common stock, issuable for counseling and advisory
services to Horwitz & Beam.
(2) The registration fee is based upon the exercise price of the options at
$4.00 per share calculated pursuant to Rule 457.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CRYO-CELL INTERNATIONAL, INC.
CROSS REFERENCE SHEET REQUIRED BY ITEM 501(b) OF REGULATION S-K
FORM S-8 ITEM NUMBER
AND CAPTION CAPTION IN PROSPECTUS
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<S> <C>
1. Forepart of Registration Statement Facing Page of Registration
and Outside Front Cover Page of Statement and Cover Page of
Prospectus Prospectus
2. Inside Front and Outside Back Inside Cover Page of Prospectus
Cover Pages of Prospectus and Outside Cover Page of Prospectus
3. Summary Information, Risk Factors Not Applicable
and Ratio of Earnings to Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Sales by Selling Security Holder
8. Plan of Distribution Cover Page of Prospectus and Sales
by Selling Security Holder
9. Description of Securities to be Description of Securities;
Registered
10. Interests of Named Experts and Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Information Incorporation of Certain
by Reference Documents by Reference
13. Disclosure of Commission Position Indemnification of Directors
on Indemnification for Securities and Officers; Undertakings
Act Liabilities
</TABLE>
DATED: May 9, 1997
<PAGE>
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant incorporates the following documents by reference in the
registration statement:
The Company's Annual Report on Form 10-KSB filed for the year ended
November 30, 1996 and the Company's Quarterly Report on Form 10-QSB for the
quarter ended February 29, 1997; and description of the Company's Common Stock
contained in the Company's Form 8-A dated February 4, 1994.
All other documents filed in the future by Registrant after the date of
this Registration Statement, under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment to this Registration Statement which deregisters the securities
covered hereunder which remain unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12(g)
of the Securities Exchange Act of 1934, as amended. A description of the
Registrant's securities is set forth in the Prospectus incorporated as a part of
this Registration Statement.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Bylaws and the Delaware General Corporation Law provide
for indemnification of directors and officers against certain liabilities.
Officers and directors of the Company are indemnified generally against expenses
actually and reasonably incurred in connection with proceedings, whether civil
or criminal, provided that it is determined that they acted in good faith, were
not found guilty, and, in any criminal matter, had reasonable cause to believe
that their conduct was not unlawful.
The Company's Certificate of Incorporation further provides that a
director of the Company shall not be personally liable for monetary damages to
the Company or its shareholders for breach of any fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) for
the unlawful payments of dividends or stock redemption by the Company or (iv)
for any transaction from which the director derives an improper personal
benefit.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
<PAGE>
Item 8. EXHIBITS
4 Retainer Agreement with Horwitz & Beam.
5 Opinion of Horwitz & Beam, consent included, relating to the
issuance of the shares of securities pursuant to the Retainer Agreement.
23.1 Consent of Horwitz & Beam.
23.2 Consent of Mirsky, Furst & Associates, P.A.
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement,
including (but not limited to) any addition or election of a managing
underwriter.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities offered at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel that matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Safety Harbor, State of Florida, on May 9, 1997.
CRYO-CELL INTERNATIONAL, INC.
By: /s/ DANIEL D. RICHARD
______________________________________
Daniel D. Richard, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on and on the date indicated.
/s/ DANIEL D. RICHARD
________________________________
Daniel D. Richard, Chief Executive Officer, Director
/s/ BRIAN K. BURKE
________________________________
Brian K. Burke, Principal Financial and Accounting Officer
/s/ LEONARD GREEN
________________________________
Leonard Green, Director
/s/ FREDERICK C.S. WILHEM
________________________________
Frederick C.S. Wilhelm, Director
/s/ WILLIAM C. HARDY
________________________________
William C. Hardy, Director
EXHIBIT 4
RETAINER AGREEMENT
LAW OFFICES OF
HORWITZ & BEAM
TWO VENTURE PLAZA
SUITE 380
IRVINE, CALIFORNIA 92618
(714) 453-0300
(310) 842-8574
FAX: (714) 453-9416
Lawrence W. Horwitz, Esq.
Gregory B. Beam, Esq.
Lawrence R. Bujold, Esq.
Lawrence M. Cron, Esq.
Lynne Bolduc, Esq.
Thomas B. Griffen, Esq.
John J. Isaza, Esq.
Malea M. Farsai, Esq.
June 4, 1996
Mr. Daniel Richard VIA FACSIMILE
Cryo-Cell International, Inc.
8900 Grand Ave.
Baldwin, New York 11510
RE: LEGAL REPRESENTATION
Dear Mr. Richard:
This is to confirm our understanding whereby you have engaged this firm
to represent you with respect to the proposed litigation against the University
of Arizona and other defendants (hereinafter referred to as the "Matter"). This
agreement only pertains to our representation in connection with the Matter.
This letter, when signed by you, will constitute the written fee contract
required by California law. In connection therewith, our understanding and
agreement are as follows:
1. We will undertake to advise you in connection with the Matter and
any other matters you ask us to undertake. We will undertake to prepare such
documents as may be required to affect the foregoing.
2. There can be no assurances, and we make no guarantees,
representations or warranties as to the particular results from our services and
the response and timeliness of action by any governmental official or
department.
3. You understand that the accuracy and completeness of any document
prepared by us is dependent upon your alertness to assure that it contains all
material facts which might be important and that such documents must not contain
any misrepresentation of a material fact nor omit information necessary to make
the statements therein not misleading. To that end, you agree to review, and
confirm to us in writing that you have reviewed, all materials for their
accuracy and completeness prior to any use thereof. You also acknowledge that
this
<PAGE>
responsibility continues in the event that the materials become deficient
in this regard.
4. We will undertake the representation in connection with the matter
in accordance with the following terms:
(a) 16.5% of the aggregate recovery up to the day prior to the
commencement of the Mandatory Settlement Conference; this amount shall increase
to 20% upon commencement of the Mandatory Settlement Conference; plus
(b) $100 per hour payable in the form of stock as follows. We will
bill you on a monthly basis. You will have 10 days from receipt of this bill to
pay it in full, in cash. In the event you do not make such a payment, then we
will be obligated to convert the amount owed into free-trading shares issued by
Cryo-Cell., Inc pursuant to an S-8 registration statement as free trading shares
( the "Compensation Shares"). This amount shall include all attorney's fees and
costs contained in our bill. Such conversion shall be at the average closing
bid-price during the last 10 trading days for the calendar month during which we
present our bill (the "Purchase Price") (ie. if our bill is dated July 17, then
it would be the last 10 trading days in July). We agree to not trade any of the
Compensation Shares during the 90-day period of time (the "Lock-Up Period")
following the date of the bill giving rise to the right to receive the
Compensation Shares. Upon the day which constitutes the final day of the Lock-Up
Period you shall have an option to acquire for cash any or all of the
Compensation Shares at the Purchase Price (the "Option"). In the event the
Option is not exercised with the payment of such cash, we will have the right to
trade the Compensation Shares on the public securities markets. We may only
receive up to $250,000 in Compensation Shares as a result of our representation
in connection with the Matter. In the event our firm is retained in connection
with other litigation arising from the facts of the Matter, then any fees
received by our firm shall be used to mitigate the amount owed by Cryo-Cell
under this paragraph.
We will bill you monthly with the understanding that, except as set
forth otherwise herein, unless otherwise agreed to by us, you will pay the full
amount of each statement within ten days after your receipt thereof. Amounts
past due for 30 days or more will be charged a finance charge of 10% per annum.
5. Except as set forth above, fees do not include incidental costs and
expenses such as copying charges, long distance telephone charges, messenger
charges, filing fees, court costs and facsimile charges. The other costs will be
billed to you or, in the case of certain expenses such as corporate filing
costs, you will be requested to provide such amounts in advance. You agree to
pay all expenses advanced by the firm and to provide expenses in advance to the
extent requested by the firm.
6. With respect to any new matters, hourly fees do not include
incidental costs and expenses such as copying charges, long distance telephone
charges, messenger charges, and facsimile charges. These costs will be billed to
you on a monthly basis. You agree to pay all expenses advanced by the firm and
to provide expenses in advance to the extent requested by the firm.
7. The firm reserves the right to immediately withdraw its
representation in the event that (i) we discover any misrepresentation of
information provided to us, or (ii) you and any of your affiliates engage in any
conduct or activities contrary to our advice which in our
<PAGE>
Mr. Daniel Richard
June 4, 196
Page 8
opinion would constitute a violation of applicable law. In the event legal
action is required to collect any amounts due hereunder, you agree to pay legal
fees and expenses required to collect such amounts.
8. We will consult with you on all major decisions and will attempt to
keep you fully informed of the status of the preparation of documents and
responses to filings, if any, as well as our recommended strategies. You should
feel free to call at any time if you have any questions or wish to discuss any
aspect of this matter.
9. You are advised that the Firm maintains errors and omissions
insurance coverage applicable to the services to be rendered.
10. This Agreement shall be governed by the laws of the State of
California and venue for any action hereunder shall be in Orange County,
California.
If this letter correctly sets forth your understanding and agreement
with respect to the matters mentioned above, please execute and return one copy
of this letter.
Very truly yours,
HORWITZ & BEAM
/s/ LAWRENCE HORWITZ
____________________
Lawrence W. Horwitz
The undersigned hereby confirms and agrees that this letter, executed and
effective this 4th day of June, 1996, sets forth my understanding and agreement.
CRYO-CELL INTERNATIONAL, INC.
By:/s/ DANIEL D. RICHARD
________________________
Title: CHAIRMAN AND CEO
SSN:____________________
EXHIBIT 5
OPINION OF HORWITZ & BEAM
LAW OFFICES OF
HORWITZ & BEAM
TWO VENTURE PLAZA
SUITE 380
IRVINE, CALIFORNIA 92618
(714) 453-0300
(310) 842-8574
FAX: (714) 453-9416
Gregory B. Beam, Esq.
Lawrence W. Horwitz, Esq.
Lawrence R. Bujold, Esq.
Lawrence M. Cron, Esq.
Lynne Bolduc, Esq.
Thomas B. Griffen, Esq.
John J. Isaza, Esq.
Malea M. Farsai, Esq.
April 21, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: CRYO-CELL INTERNATIONAL, INC.
Ladies and Gentlemen:
This office represents CRYO-CELL INTERNATIONAL, INC., a Nevada
corporation (the "Registrant") in connection with the Registrant's Registration
Statement on Form S-8 under the Securities Act of 1933 (the "Registration
Statement"), which relates to the registration of a total of 10,000 shares of
the Registrant's Common Stock issuable upon exercise of options issued to
Horwitz & Beam for performance of certain legal representation, advisory, and
counseling services (the "Registered Securities"). In connection with our
representation, we have examined such documents and undertaken such further
inquiry as we consider necessary for rendering the opinion hereinafter set
forth.
Based upon the foregoing, it is our opinion that the Registered
Securities, when sold as set forth in the Registration Statement, will be
legally issued, fully paid and nonassessable.
We acknowledge that we are referred to under the heading "Legal
Matters" in the Prospectus which is a part of the Registrant's Form S-8
Registration Statement relating to the Registered Securities, and we hereby
consent to such use of our name in such Registration Statement and to the filing
of this opinion as Exhibit 5 to the Registration Statement and with such state
regulatory agencies in such states as may require such filing in connection with
the registration of the Registered Securities for offer and sale in such states.
HORWITZ & BEAM
EXHIBIT 23.1
CONSENT OF HORWITZ & BEAM
CONSENT OF HORWITZ & BEAM
We hereby consent to the use in the Prospectus constituting part of the
Registration Statement on Form S-8 of our opinion dated April 21, 1997 relating
to the registration of the Securities, as therein defined, of CRYO-CELL
INTERNATIONAL, INC., a Delaware corporation, which is attached as Exhibit 5
therein.
Dated: April 21, 1997 HORWITZ & BEAM, INC.,
a California corporation
By: /s/ LAWRENCE W. HORWITZ
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Lawrence W. Horwitz
Its: Vice President
EXHIBIT 23.2
CONSENT OF MIRSKY, FURST & ASSOCIATES, P.A.
MIRSKY, FURST & ASSOCIATES, P.A.
CERTIFIED PUBLIC ACCOUNTANTS
201 MAIN STREET
FORT LEE, NEW JERSEY 07024
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ROBERT MIRSKY, C P A (201) 947-2186
MARVIN FURST, C P A (212) 889-3410
ALAN P. KURINOVICH, C P A FAX (201) 947-6629
TO: Board of Directors
CRYO-CELL International, Inc.
604 Packard Court
Safety Harbor, Florida 34695
RE: Consent to Use Opinion
We hereby consent to the use of our opinion (dated February 3, 1996 from the
Form 10-KSB for the fiscal year end November 30, 1996) as herein described.
This consent is in connection with the registration under the Securities Act of
1993; as amended, of 10,000 shares of your Common Stock issued pursuant to
options which have been granted under Agreements for Counseling and Advisory
Services.
MIRSKY, FURST & ASSOCIATES, P.A.
Fort Lee, New Jersey
April 22, 1997
