AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ___________, 1998
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.
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(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
3165 MCMULLEN BOOTH ROAD, BUILDING #5
CLEARWATER, FL 33761
(813) 723-0333
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(Address of Registrant's principal executive offices, including zip code)
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ADVISOR COMPENSATION PLAN
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(Full title of the Plan)
MARK RICHARD, ESQUIRE
6950 N. KENDALL DRIVE
MIAMI, FL 33156
(305) 662-5700
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(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 350
Irvine, CA 92618
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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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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Aggregate Fee
Price per Offering
Share Price
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Common Stock, $0.01 Par
Value(1) 25,000(1) $2.94(2) $73,500 $21.68
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(1) Includes 25,000 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
$2.94 per share calculated pursuant to Rule 457(c).
<PAGE>
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
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
DATED: MAY 28, 1998
<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, 1997 and the Company's Quarterly Report on Form 10-QSB for the
quarter ended February 28, 1998; 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
4.1 Retainer Agreement with Horwitz & Beam.
4.2 Amendment to 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 Clearwater, State of Florida, on May 28, 1998.
CRYO-CELL INTERNATIONAL, INC.
By: /s/ DANIEL D. RICHARD
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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
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Daniel D. Richard, Chief Executive Officer, Director
Date: MAY 28, 1998
/s/ FRANK W. HENDRICKS
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Frank W. Hendricks, Director
Date: MAY 28, 1998
/s/ FREDERICK C.S. WILHELM
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Frederick C.S. Wilhelm, Director
Date: MAY 28, 1998
/s/ ED MODZELEWSKI
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Ed Modzelewski, Director
Date: MAY 28, 1998
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
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4.1 Retainer Agreement with Horwitz & Beam.
4.2 Amendment to 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.
EXHIBIT 4.1
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
<PAGE>
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 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") (i.e.,. 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
<PAGE>
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 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 W. 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 RICHARD
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Title: Chief Executive Officer
SSN: 22-302-3093
EXHIBIT 4.2
Amendment to Retainer Agreement
LAW OFFICES OF
HORWITZ & BEAM
TWO VENTURE PLAZA
SUITE 350
IRVINE, CALIFORNIA 92618
(949) 453-0300
(310) 842-8574
FAX: (949) 453-9416
Gregory B. Beam, Esq. Malea M. Farsai, Esq.
Lawrence W. Horwitz, Esq. Ralph R. Loyd, Esq.
Lawrence M. Cron, Esq. Patti L. W. McGlasson, Esq.
Lynne Bolduc, Esq. Bernard C. Jasper, Esq.
George L Rogers, Esq.
Of Counsel
May 14, 1998
Mr. Daniel Richard VIA FACSIMILE
Cryo-Cell International, Inc.
8900 Grand Ave.
Baldwin, New York 11510
RE: LEGAL REPRESENTATION
Dear Mr. Richard:
On June 4, 1996, Cryo-Cell International, Inc. (the "Company") entered
into a Retainer Agreement with Horwitz & Beam pursuant to which the Company
agreed to issue Options to purchase up to $250,000 of shares of Common Stock of
the Company (the "Compensation Shares") in consideration for legal services to
be provided to the Company commencing as of the date of the agreement. The term
of the Retainer Agreement shall be until either party terminates the agreement.
Under the terms of the Retainer Agreement, Horwitz & Beam is to represent,
advise, and counsel with the Company concerning proposed litigation by the
Company against the University of Arizona and other defendants (the "Matter").
The Company registered 10,000 of the Compensation Shares on Form S-8 filed with
the Securities and Exchange Commission (the "Commission"). As of the date
hereof, Horwitz & Beam has earned in excess of 10,000 shares of Common Stock of
the Company.
The Company wishes to continue the engagement of Horwitz &Beam in the
Matter and wishes to continue the engagement under similar payment terms as
those set forth above. Therefore, the Company and Horwitz &Beam hereby amend the
Retainer Agreement to provide for the registration of Form S-8 of an additional
25,000 Compensation Shares payable to Horwitz &Beam as follows:
<PAGE>
(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: Horwitz & Beam
will bill the Company on a monthly basis. Immediately upon execution of
the bill, Horwitz & Beam shall receive the total amount owed on the bill
in the form of shares of Common Stock issued by the Company (the
"Compensation Shares"). This amount shall include all attorneys' fees and
costs contained in Horwitz & Beam's bill. The conversion rate of the bill
into the Compensation Shares shall be at the closing bid-price on the date
of the bill (the "Exercise Price"). All Compensation Shares issued for the
payment of services shall have a lock-up period of 90 days (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, the Company has the right to redeem the
Compensation Shares by paying cash for the Compensation Shares at the
Exercise Price in $5,000 increments. In the event the Shares are not
redeemed with the payment of such cash, Horwitz & Beam shall have the
right to immediately trade the Compensation Shares on the public
securities markets. All Compensation Shares issued for the payment of
costs shall have no lock-up period and Horwitz & Beam shall have the right
to immediately trade such Compensation Shares on the public securities
markets. Horwitz & Beam may only receive up to $250,000 worth of
Compensation Shares as a result of its representation in connection with
the Matter. In the event Horwitz & Beam is retained in connection with
other litigation arising from the facts of the Matter, then any fees
received by Horwitz & Beam shall be used to mitigate the amount owed by
the Company under this paragraph.
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 W. HORWITZ
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Lawrence W. Horwitz
The undersigned hereby confirms and agrees that this letter, executed and
effective this 14th day of May, 1998, sets forth my understanding and agreement.
CRYO-CELL INTERNATIONAL, INC.
BY: /s/ DANIEL D. RICHARD
---------------------
Title: Chief Executive Officer
SSN: 22-302-3093
EXHIBIT 5
Opinion of Horwitz and Beam
LAW OFFICES OF
HORWITZ & BEAM
TWO VENTURE PLAZA
SUITE 350
IRVINE, CALIFORNIA 92618
(949) 453-0300
(310) 842-8574
FAX: (949) 453-9416
Gregory B. Beam, Esq. Malea M. Farsai, Esq.
Lawrence W. Horwitz, Esq. Ralph R. Loyd, Esq.
Lawrence M. Cron, Esq. Patti L. W. McGlasson, Esq.
Lynne Bolduc, Esq. Bernard C. Jasper, Esq.
George L Rogers, Esq.
Of Counsel
May 14, 1998
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 Delaware
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 25,000 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
/s/ 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 May 14, 1998 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: May 14, 1998 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.
CONSENT OF
MIRSKY, FURST & ASSOCIATES, P.A.
We hereby consent to the incorporation by reference in this Prospectus
constituting part of the Registration Statement of Form S-8 of our reports
appearing in the CRYO-CELL INTERNATIONAL, INC., a Delaware corporation, Form
10-KSB filed for the year ended November 30, 1997; and the Quarterly Report on
Form 10-QSB for the quarter ended February 28, 1998.
Dated: May 27, 1998 /s/ MIRSKY, FURST & ASSOCIATES, P.A.
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MIRSKY, FURST & ASSOCIATES, P.A.
