AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 28, 1999
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
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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3165 McMullen Booth Road, Building #5
Clearwater, FL 33761
(727) 723-0333
(Address of Registrant's principal executive offices, including zip code)
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ADVISOR COMPENSATION PLAN
(Full title of the Plan)
Daniel Richard, Chief Executive Officer
3165 McMullen Booth Road, Building #5
Clearwater, FL 33761
(727) 723-0333
(Name, address and telephone number of agent for service)
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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
<TABLE>
<CAPTION>
===================================================================================================================
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
===================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $0.01 Par Value(1) 25,000(1) $5.875(2) $146,875 $40.83
===================================================================================================================
</TABLE>
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(1) Includes 25,000 shares of common stock, issuable for
consulting services to Boston Healthcare Associates, Inc.
(2) The registration fee is based upon the exercise price of the options at
$5.875 per share calculated pursuant to Rule 457(c).
<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, 1998 and all of the Company's Quarterly Reports on Form 10-QSB for
the quarters ended February 28, 1999, May 31, 1999 and August 31, 1999 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.
Shares of Common Stock share equally in dividends, when and if
declared, and share ratably in net assets upon liquidation. There are no
redemption rights nor are there any pre-emptive rights. Each share has one vote
and there is no cumulative voting. Further, each outstanding share is, and each
share to be issued will be, fully paid and non-assessable.
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.
S2
<PAGE>
Item 8. EXHIBITS
The following is a list of exhibits filed as part of the Registration
Statement:
4.1 Consulting Service Agreement with Boston Healthcare
Associates, Inc.
5 Opinion of Thaddeus Freeman.
23.1 Consent of Thaddeus Freeman (included in 5 above).
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.
(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.
S3
<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 October 27, 1999.
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
Date: October 28, 1999
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/s/ GERALD F. MAASS
- -------------------
Gerald F. Maass, Executive V.P, General Manager, Director
Date: October 28, 1999
----------------
/s/ JILL M. TAYMANS
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Jill M. Taymans, Chief Financial Officer
Date: October 28, 1999
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/s/ FREDERICK C.S. WILHELM
- --------------------------
Frederick C.S. Wilhelm, Director
Date: October 28, 1999
----------------
/s/ ED MODZELEWSKI
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Ed Modzelewski, Director
Date: October 28, 1999
----------------
S4
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION PAGES
- ------- ----------- -----
4.1 Consulting Services Agreement with Boston
Healthcare Assoc. S6
5 Opinion of Thaddeus Freeman S9
23.1 Consent of Counsel See Exhibit 5
23.2 Consent of Mirsky, Furst & Associates, P.A. S11
S5
<PAGE>
CONSULTING SERVICE AGREEMENT
This Agreement is entered into between CRYO-CELL International, Inc., (herein
CRYO-CELL), having a principle place of business at 3165 McMullen Booth Road,
Building B, Clearwater, FL 33761 and Boston Healthcare Associates, Inc. (herein
Boston Healthcare), having a principle place of business at 75 Federal Street,
9th Floor, Boston, MA 02110.
WHEREAS Boston Healthcare has experience and expertise in reimbursement strategy
and implementation with insurers; and
WHEREAS CRYO-CELL is a provider of cord blood stem cell processing and storage
services;
NOW THEREFORE, the terms of this Agreement are set forth as follows:
1. SERVICES. Subject to authorizations by CRYO-CELL as described below,
Boston Healthcare will seek to drive coverage policy and reimbursement
for CRYO-CELL's storage services with health care payers, self-insured
employer groups, and life insurers in the United States. Boston
Healthcare will first identify coverage amd reimbursement parameters by
conducting an assessment of the insurers' current and anticipated
policies regarding cord blood storage. Boston Healthcare will then
target key insurers, both influential and market-dominant, and engage
these parties to influence coverage policies and reimbursement. Boston
Healthcare will work with CRYO-CELL through all phases of presenting
the Company, its services, and assisting in assembling appropriate
presentation materials. Boston Healthcare will also be involved in
structuring and negotiating coverage and reimbursement arrangements
with the targeted insurers as appropriate. Boston Healthcare will also
clarify issues surrounding CPT coding for CRYO-CELL services. Should
new CPT code(s) be required, Boston Healthcare will negotiate in good
faith with CRYO-CELL for this additional scope of work.
2. FEES. In consideration for the services to be provided by Boston
Healthcare under this Agreement, CRYO-CELL agrees to pay Boston
Healthcare the following retainer/consulting fees:
$15,000 thirty days following execution of Agreement
$15,000 per month for the following five months
CRYO-CELL may elect to make payment to Boston Healthcare for
retainer/consulting fees and expenses (below) in cash or in registered,
unrestricted CRYO-CELL common stock. Boston Healthcare will cooperate
in the filing of an S-8 form. Should CRYO-CELL elect to make payment to
Boston Healthcare in the form of S-8 stock, the stock will be valued at
the average of the closing price of such stock for the five business
days prior to the date payment is due to Boston Healthcare with respect
to any retainer fees due hereunder. CRYO-CELL will notify Boston
Healthcare which method of payment is to be made to Boston Healthcare
and Boston Healthcare has the option to accept the stock as payment in
full or to sell the stock.
CRYO-CELL shall reimburse Boston Healthcare for all reasonable
out-of-pocket and travel expenses incurred by Boston Healthcare in
connection with services rendered under this Agreement within
submission of invoices to CRYO-CELL for such expenses. Said invoices
shall be paid with S-8 stock (as above) or cash at CRYO-CELL's option.
3. WORK PRODUCT. CRYO-CELL shall be the sole owner of all title and rights
in all information, results, and reports provided by Boston Healthcare
to CRYO-CELL as a part of service performed by Boston Healthcare under
this Agreement. CRYO-CELL shall be free to use, alone or with others,
such information, results, and reports without further obligations to
Boston Healthcare beyond the payments described above.
4. CONFIDENTIAL INFORMATION.
(a) Boston Healthcare understands and appreciates CRYO-CELL's need
for the confidential treatment of proprietary information
provided to Boston Healthcare by CRYO-CELL. Boston Healthcare
will use its reasonable efforts consistent with Boston
Healthcare's usual practices to maintain such confidentiality.
S6
<PAGE>
(b) Not withstanding paragraph 3 or 4(a) above, CRYO-CELL
acknowledges and agrees that Boston Healthcare has the right
to disclose to prospective clients that Boston Healthcare has
performed services for CRYO-CELL.
5. THIRD PARTY AGREEMENTS.
(a) Boston Healthcare represents that the conduct of services
under this Agreement will not conflict with any obligations or
duties that it may have to others.
(b) CRYO-CELL acknowledges and agrees that Boston Healthcare has
the right to enter into other consulting engagements with
companies in businesses related to CRYO-CELL's business except
that Boston Healthcare shall not enter into any such Agreement
relating to cord blood storage.
(c) This Agreement will not be assigned to a third party without
the consent of both parties to this Agreement.
6. INDEPENDENT CONTRACTOR. In the performance of services hereunder, the
status of Boston Healthcare, including its employees and agents, shall
be that of independent contractor and not as employee, agent, or
fiduciary of CRYO-CELL and as such shall have no right to make
commitments for or on behalf of CRYO-CELL.
7. INSURANCE AND INDEMNIFICATION.
(a) Boston Healthcare agrees to indemnify and defend CRYO-CELL,
its officers, directors, employees and agents against any
loss, claim, suit, liability or expense (including attorney's
fees) stemming from injuries or damages to persons or property
resulting from or arising out of Boston Healthcare's
performance under this Agreement, unless such loss, claim,
suit, liability or expense is the result of negligence or bad
faith on the part of CRYO-CELL or its employees.
(b) CRYO-CELL agrees to indemnify and defend Boston Healthcare,
its officers, directors, employees and agents against any
loss, claim, suit, liability or expense (including attorney's
fees) stemming from injuries or damages to persons or property
resulting from or arising out of CRYO-CELL's use of any
information developed by Boston Healthcare under this
Agreement, unless such loss, claim, suit, liability or expense
is the result of negligence or bad faith on the part of Boston
Healthcare or its employees.
(c) To the extent an indemnified party makes a claim for
indemnification hereunder, the indemnified party shall give
written notice to the indemnifying party reasonably setting
forth the facts and circumstances in connection with the claim
for indemnification. The indemnities of this Section shall not
apply if the indemnified party fails to give the indemnifying
party notice of any claim it receives within 30 days after
receipt of such claim and such failure materially prejudices
the indemnifying party. The indemnifying party shall have the
right at its election to take over the defense or settlement
of the third party claim at its own expense by giving prompt
notice to the indemnified party. If the indemnifying party
gives such notice and proceeds so to defend the third party
claim within 30 days after receipt of the notice to the third
party claim, the indemnified party shall not settle or
otherwise compromise the proceedings and shall be bound by any
defense or settlement that the indemnifying party may make as
to those claims. In addition, if the indemnifying party
assumes such control, it shall only be responsible for the
legal fees and litigation expenses of the attorneys it
designates to assume control of the litigation (in addition to
the indemnification set forth in Paragraphs (a) and (b).
8. ENTIRE AGREEMENT. This constitutes the entire Agreement of the parties
pertaining to the subject matter hereof. No modification of this
Agreement shall be binding unless in writing and signed by an
authorized representative of each party.
9. LENGTH OF AGREEMENT. The initial term of this Agreement shall begin
upon signatures of both parties and shall continue for six (6) months
thereafter, unless sooner terminated by either party. At the end of six
(6) months, should CRYO-CELL desire to renew this Agreement for another
six (6) months, Boston Healthcare will negotiate in good faith.
10. TERMINATION/SURVIVAL OF OBLIGATIONS. CRYO-CELL may terminate this
Agreement with or without cause at any time upon thirty (30) days
written notice and payment to Boston Healthcare of all monies for
services performed to date and expenses incurred to date. Obligations
under Sections 2 (for services performed and expenses incurred through
termination), 4, and 7 shall survive termination of this
S7
<PAGE>
Agreement. Success fees, as defined in section 2, for Deals which are
executed within twelve (12) months after the termination of this
Agreement, and are a result of work performed by and/or contacts made
by Boston Healthcare will be paid in accordance with the terms of
Section 2. Boston Healthcare reserves the right to stop work for non
payment of fees as defined in Section 2. No other cost will be incurred
for termination.
11. WAIVER. Any waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision hereof.
12. SEVERABILITY; REFORMATION. In case any one or more of the provisions or
parts of a provision contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement.
13. NOTICES. Any notices or other communications required hereunder shall
be in writing and shall be deemed given when delivered in person or
when mailed, by certified or registered first-class mail, postage
prepaid, return receipt requested, addressed to such entity at the
addresses identified on the first page of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original and all of
which shall be deemed a single agreement.
15. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed for all purposes by the laws of The Commonwealth of
Massachusetts without reference to its conflicts of laws provisions.
Accepted and Agreed: Accepted and Agreed:
Boston Healthcare Associates, Inc. CRYO-CELL International, Inc.
By: /s/ CAROL D. HUSE BY: /s/ DANIEL D. RICHARD
------------------ ---------------------
Carol D. Huse Daniel D. Richard
Executive Director, Contracts Chairman and Chief Executive
and Finance Officer
Date: October 12, 1999 Date: October 14, 1999
---------------- ----------------
S8
<PAGE>
THADDEUS FREEMAN
ATTORNEY AT LAW
8150 CYPRESS GARDEN COURT
LARGO, FL 33777
(727) 394-0133
BOARD CERTIFIED BUSINESS LITIGATION BOARD CERTIFIED CIVIL TRIAL
- --FLORIDA BAR -- TEXAS BD. OF LEGAL SPEC.
October 28, 1999
CRYO-CELL International, Inc.
3165 McMullen Booth Road
Building #5
Clearwater, FL 33761
RE: CRYO-CELL International, Inc.; proposed registration statement
At your request, I have examined the proposed form of "Registration
Statement which CRYO-CELL International, Inc. (the "Corporation") intends to
file with the Securities and Exchange Commission, Form S-8 (the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended, of 25,000 shares of the Corporation's Common Stock (the
"Stock") pursuant to options which have been granted under the Consulting
Service Agreement (the "Agreement") to Boston Healthcare Associates, Inc. (the
"Associates").
In rendering the following opinion, I have examined and relied only
upon the documents, certificates of officers and directors of, and
correspondence from the Corporation as are specifically described below. In my
examination, I have assumed the genuineness of all signatures, the authenticity,
accuracy and completeness of the documents, whether originals, copies, or
telecopies, submitted to me, and the assumed conformity of copies and telecopies
with the original documents. My examination was limited to the provisions in the
following documents, and no others:
1. Certificate of Incorporation of CRYO-CELL International,
Inc. filed September 11, 1989, with the State of Delaware,
Office of Secretary of State, which authorizes the issuance
of up to 7,5000,000 shares of common stock of the said
corporation.
2. Certificate of Amendment of CRYO-CELL International, Inc.
filed October 25, 1994, with the State of Delaware, Office
of Secretary of State, which authorizes the issuance of up
to 500,000 preferred shares of stock and up to 15,000,000
common shares of stock of the said corporation.
3. By Laws of CRYO-CELL International, Inc. dated September 11,
1989, which provide for the issuance of fractional shares,
of stock of said corporation by the Board of Directors once
same are fully paid and give the Board of Directors control
and management of the affairs, property, and interests of
the said corporation.
4. Registration Statement.
5. Agreement.
6. Unanimous Resolution of the Board of Directors of the
Corporation dated October 14, 1999, which provides for the
Corporation's execution of the Agreement and execution and
filing of the Registration Statement.
7. Correspondence from Jill Taymans, CFO CRYO-CELL
International, inc. dated June 2, 1999, which states that
the Corporation is authorized to issue 15,000,000 shares and
that there are 8,642,955 shares outstanding.
I have not undertaken nor do I intend to undertake, any
independent investigation beyond such documents, records, and
correspondence, or to verify the adequacy or accuracy of such
documents, records, and correspondence.
S9
<PAGE>
Based on the foregoing, it is my opinion that the Stock to be
issued under the Agreement, subject to the effectiveness of the
Registration Statement and compliance with applicable "blue sky" laws
when issued upon exercise of the options granted under the Agreement,
will be duly and validly authorized, fully paid, and non-assessable.
I express no opinion as to compliance with the securities or
"blue sky" laws of any state in which the Stock is proposed to be
offered and sold or as to the effect, if any, which non compliance with
such laws might have on the validity of issuance of the Stock.
I consent to the filing of this opinion as an exhibit to any
filing made with the Securities and Exchange Commission. Other than as
provided in the preceding sentence, this opinion (I) is addressed
solely to you, (ii) may not be relied upon by any other party, (iii)
covers only matters of Florida and federal law and nothing in this
opinion shall be deemed to imply any opinion related to the laws of any
other jurisdiction, (iv) may not be quoted or reproduced or delivered
by you to any other person, and (v) may not be relied upon for any
other purpose whatsoever. Nothing stated in this letter shall be deemed
to relate to or constitute an opinion concerning matters not
specifically set forth above. No other opinion, express or implied, is
being rendered.
By giving you this opinion and consent, I do not admit that I
am an expert with respect to any part of the Registration Statement or
Prospectus within the meaning of the terms "expert" as used in Section
11 of the Securities and Exchange Commission as promulgated under same.
The information set forth above is as of the date of this
letter. I disclaim any undertaking to advise you of changes, which may
be brought to my attention after the effective date of the Registration
Statement.
/s/ THADDEUS FREEMAN
---------------------
Thaddeus Freeman
S10
<PAGE>
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, 1998.
Dated: October 28, 1999 /s/ MIRSKY, FURST & ASSOCIATES, PA
---------------- -----------------------------------------
MIRSKY, FURST & ASSOCIATES, P.A.
