AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 17, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
CRYO-CELL INTERNATIONAL, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
---------------------
DELAWARE 22-302-3093
- -------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
---------------------
3165 MCMULLEN BOOTH ROAD, BUILDING #5
CLEARWATER, FL 33761
(727) 723-0333
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(Address of Registrant's principal executive offices, including zip code)
---------------------
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)
---------------------
Approximate Date of Proposed Sale to the Public:
As soon as practicable after this Registration Statement becomes effective.
--------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURIITES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
===================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $0.01 Par Value(1) 10,000(1) $5.875(2) $58,750 $16.33
===================================================================================================================
</TABLE>
- -------------------------
1 Includes 10,000 shares of common stock, issuable for counseling and
advisory services to Coleman Sudol.
2 Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457(c) of the Securities Act of 1933, based on the
average of the high and low sales prices of a share of Common Stock of the
Company on the Nasdaq National Market System on November 5, 1999.
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by CRYO-CELL International,
Inc., a Delaware corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated into this registration statement
by reference.
1. The Company's Annual Report on Form 10-KSB for the fiscal year
ended November 30, 1998, filed with the Commission on March 16,
1999.
2. The description of the Company's Common Stock is contained in its
Registration Statement on Form 8A dated February 4, 1994, filed
pursuant to Section 12 of the Securities Exchange Act of 1934.
In addition, all reports and other documents that we subsequently file
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in, and to be
a part of, this registration statement from the date of filing of such documents
(such documents, and the documents enumerated above, being referred to in this
registration statement as "Incorporated Documents").
To the extent information contained in this registration statement or
any Incorporated Document differs from information contained in an earlier-filed
Incorporated Document, rely on the different information in this registration
statement or the later-filed Incorporated Document.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities covered by this Registration Statement is
registered under Section 12(g) of the Securities Exchange Act of 1934, as
amended.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The securities covered by this Registration Statement are issuable to
attorneys at Coleman Sudol for legal counseling and advisory services.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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.
2
<PAGE>
ITEM 8. EXHIBITS.
The exhibits required by Item 601 of Regulation S-K are listed in the
Exhibit Index hereto.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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 (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this registration statement.
Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(l)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Company pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by
reference in this registration statement.
2) That, for the purpose of determining any liability under the
Securities Act, 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 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 Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this 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
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company will, unless in
the opinion of its counsel the 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 Securities
Act and will be governed by the final adjudication of such issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 November 17, 1999.
CRYO-CELL INTERNATIONAL, INC.
By: /s/ DANIEL D. RICHARD
---------------------
Daniel D. Richard
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Daniel D. Richard and each of
them, his true and lawful attorney-in-fact and agent, each with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each such attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement and the foregoing power of attorney have been signed
by the following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
/s/ DANIEL D. RICHARD Chief Executive Officer and November 17, 1999
- --------------------- Chairman of the Board
Daniel D. Richard (Principal Executive Officer)
/s/ GERALD F. MAASS Vice President and General November 17, 1999
- -------------------- Manager, Director
Gerald F. Maass
/s/ JILL M. TAYMANS Chief Financial Officer November 17, 1999
- -------------------
Jill M. Taymans
/s/ ED MODZELEWSKI Director November 17, 1999
- -------------------
Ed Modzelewski
/S /FREDERICK C.S. WILHELM Director November 17, 1999
- --------------------------
Frederick C.S. Wilhelm
</TABLE>
4
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
4.1 Retainer Agreement with Coleman Sudol
5.1 Opinion of Thaddeus Freeman as to the legality of the securities
being registered.
23.1 Consent of Thaddeus Freeman (included in its opinion filed as Exhibit
5).
23.2 Consent of Mirsky, Furst & Associates, P.A..
24 Power of Attorney (included with the signature page to this
registration statement).
5
EXHIBIT 4.1
RETAINER AGREEMENT
This Agreement is by and between Henry D. Coleman and R. Neil Sudol of
Coleman Sudol, LLP, having a business address at 708 Third Avenue, Fourteenth
Floor, New York, New York 10017-4101, (hereinafter "LAWYERS") and CRYO-CELL
International, Inc. (hereinafter "CLIENT"), a corporation organized and existing
under the laws of the State of Delaware and having a business address at 3165
McMullen Booth Road, Bldg. B, Clearwater, Florida 33761,
WHEREAS LAWYERS practice law in the area of intellectual property,
including, but not limited to, patent, trademark, unfair competition, trade
secret, and copyright law.
WHEREAS CLIENT, an international technology company, requires patent
counsel on a continuing basis for purposes of advising company employees as to
intellectual property affairs, including, but not limited to, patent, trademark,
unfair competition, trade secret, and copyright issues.
WHEREAS CLIENT has utilized the professional services of LAWYERS, for
nine years and wishes to continue using those services.
Now, therefore, the parties agree as follows:
1. CLIENT will continue to request advice and other legal services
from LAWYERS, as the need arises in the course of CLIENT'S
business.
2. LAWYERS will provide professional services to CLIENT in response to
requests for such services from CLIENT.
3. LAWYERS will invoice CLIENT for services rendered and out-of-pocket
expenses incurred as services are performed and expenses incurred.
4. On request by LAWYERS, CLIENT will issue stock to LAWYERS
individually in equal amounts to collectively equal or exceed
invoiced amounts outstanding, the number of shares of stock being
sufficient at the then current market prices so that an immediate
sale of the issued stock by LAWYERS will eliminate the accrued debt
owed to LAWYERS by CLIENT.
5. Notwithstanding the foregoing, CLIENT has the option, on any
request made by LAWYERS under Paragraph 4 above, to settle the
invoiced amounts outstanding partially or totally by a cash payment
to LAWYERS.
6. This Agreement may be terminated at any time by either party. Upon
termination, amounts owed by CLIENT to LAWYERS will be settled
pursuant to Paragraph 4 or 5 above.
IN WITNESS WHEREOF, the parties have executed or have caused this
Agreement to be executed, in duplicate, by themselves or their
respective duly authorized representatives.
EXHIBIT 5.1
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.
November 5, 1999
CRYO-CELL International, Inc.
3165 McMullen Booth Road
Building #5
Clearwater, FL 33761
RE: CRYO-CELL International, Inc.; proposed registration statement for
Coleman Sudol agreement
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 10,000 shares of the Corporation's Common Stock (the
"Stock") in relation to the Retainer Agreement (the "Agreement") between the
Corporation and Coleman, Sudol, LLP (the "Attorneys").
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 that the copies and telecopies sent
me conform to their original counterparts. Moreover, I have assumed that the
Agreement has been or will be properly executed by the Corporation and the
Attorneys. 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. Agreement.
5. Unanimous Resolution of the Board of Directors of the
Corporation dated October 28, 1999, which provides for the
Corporation's filing of the Registration Agreement and
issuance of the shares as compensation for services
rendered by the Attorneys.
6. Correspondence from Jill Taymans, CFO CRYO-CELL
International, inc. dated November 4, 1999, which states
that the Corporation is authorized to issue 15,000,000
shares and that there are 8,834,655 shares outstanding.
<PAGE>
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, including all legal and/or
factual statements in the Registration Statement.
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
EXHIBIT 23.2
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: /s/ NOVEMBER 5, 1999 /s/ MIRSKY, FURST & ASSOCIATES, P.A
------------------------ ---------------------------------------
