EXHIBIT 10.19
AGREEMENT WITH DUBLIND PARTNERS, INC.
February 12, 1999
Xx. Xxx Xxxxxxx
Cryo-Cell International, Inc.
0000 XxXxxxxx Xxxxx Xxxx, Xxxxxxxx 0
Xxxxxxxxxx, XX 00000
Dear Xxx:
This will confirm the understanding and agreement among Dublind Securities
Inc. ("DSI"), Dublind Partners Inc. ("DP") and Cryo-Cell International, Inc.
(Cryo-Cell) as follows:
1. Cryo-Cell hereby engages DSI on an exclusive basis to render
financial advisory services concerning the placement of securities
in an amount up to $7,000,000 (the Financing").The minimum dollar
amount in a placement will be $3,500,000.
2. Subject to the provisions of paragraphs 3 through 8, which shall
survive any termination of this Agreement, the terms of DSI's
engagement hereunder shall extend from the date hereof until July 1,
1999. However, if a minimum of $3,500,000 in financing is closed by
DSI, then Cryo-Cell agrees to extend DSI's exclusive financing agent
engagement period for a period of 24 months from the date of the
transaction close.
3. As compensation for DSI's services hereunder, Cryo-Cell will pay DSI
the following:
With respect to arranging the Financing, six percent (6%) of the
Gross amount actually paid on the purchase of equity securities upon
payment of such amount (including any amount committed by DSI or any
of its affiliates), such fee to be paid upon the initial funding
thereof.
Additionally, if at least $3.5 million is raised, Cryo-Cell agrees
to issue Dublind Investments LLC additional warrants to purchase up
to 6.5% of the common stock of Cryo-Cell, on a fully diluted basis,
at a price equal to the valuation of the company done in conjunction
with the financing with an expiration date of five years from the
date of the closing of this financing..
4. Cryo-Cell agrees to reimburse DP for its expenses related to the
closing of any financing, including all fees and expenses of any
counsel, accountants, appraisers or other experts retained from time
to time by DP. Expenses related to the closing will be billed
separately and paid at the time of the closing of a financing. DP
will not incur expenses of more than $10,000.00 in closing expenses
without the written approval of Cryo-Cell.
5. Subject to Xxxxxxxxx 0, Xxxx-Xxxx shall:
(a) Indemnify DSI and hold it harmless against any losses, claims,
damages or liabilities to which DSI may become subject (A)
arising in any manner out of or in connection with (i) actions
taken or omitted to be taken (including any information
furnished or any untrue statements made or statements omitted
to be made) by Cryo-Cell or (ii) actions taken or omitted to be
taken by DSI in conformity with either (x) instructions of
Cryo-Cell or (y) actions taken or omitted to be taken by
Cryo-Cell or (B) otherwise arising in any manner out of or in
connection with DSI's rendering of services hereunder unless
(in the case of indemnification pursuant to this clause (B)) it
is finally judicially determined that such losses, claims,
damages or liabilities arose out of the gross negligence or bad
faith of DSI; and,
(b) Reimburse DSI for any legal or other expenses incurred by it in
connection with investigating, preparing to defend or defending
any lawsuits, claims or other proceedings arising in any manner
out of or in connection with DSI's rendering of services
hereunder.
Cryo-Cell agrees that the indemnification and reimbursement
commitments set forth in this paragraph shall apply whether or not
DSI is a formal party to any such lawsuits, claims or other
proceedings, that DSI is entitled to retain separate counsel of its
choice in connection with any of the matters to which such
commitments relate and that such commitments shall extend upon the
terms set forth in this paragraph to any controlling person,
director, officer, employee or agent of DSI.
6. Subject to Xxxxxxxxx 0, Xxxx-Xxxx and DSI agree that if any
indemnification or reimbursement sought pursuant to the preceding
paragraph 5 is finally judicially determined to be unavailable
(except with respect to indemnification pursuant to subparagraph 5
(a) above for the reasons specified in subparagraph 5 (a) above)
then (whether or not DSI is the person entitled to indemnification
or reimbursement), Cryo-Cell and DSI shall contribute to the losses,
claims, liabilities, damages and expenses for which such
indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to
Cryo-Cell, on the one hand, and DSI, on the other, in connection
with the transactions contemplated herein, subject to the limitation
that in any event DSI's aggregate contribution to any such losses,
claims, liabilities, damages and expenses shall not exceed the
amount of fees actually received by DSI hereunder. It is hereby
agreed that the relative benefits to Cryo-Cell, on the one hand, and
DSI, on the other hand, with respect to any transaction or proposed
transaction contemplated herein shall be deemed to be in the same
proportion as (i) the total value paid or received or contemplated
to be paid or received by Cryo-Cell or its security holders in the
transactions or from the services contemplated herein bears to (ii)
the fee actually paid to DSI with respect to such transaction.
7. Any advice to be provided by DSI under this Agreement shall not be
disclosed to third parties without DSI's prior approval.
8. Cryo-Cell agrees that upon completion of the financing DSI has the
right to place advertisements in financial and other newspapers and
journals at its own expense describing its services to Cryo-Cell
subject to Cryo-Cell's review and approval which shall not be
unreasonably withheld
9. We understand, and you agree, that there are no brokers,
representatives or other persons who have an interest in
compensation due to DSI from the services and transactions
contemplated herein.
10. Cryo-Cell agrees to provide DSI all financial and other information
requested by DSI, and provide reasonable access to appropriate
Cryo-Cell personnel for the purposes of DSI's assignment hereunder.
DSI shall be entitled to rely upon and assume, without independent
verification, the accuracy and completeness of all information that
is available from public sources and of all information that has
been furnished to it by Cryo-Cell, and shall have no obligation to
verify the accuracy or completeness of any such information.
11. This Agreement may not be amended or modified except in writing.
12. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
13. Cryo-Cell agrees not to enter into a similar agency agreement during
the term of this agreement. 14. If the foregoing correctly sets
forth the understanding and agreement among DSI, DP and Cryo-Cell,
please so indicate in the space provided for that purpose below and
please return, together with a check for $5,000.00 for the first
phase of the engagement covering the preparation of a business plan
and offering memo, an executed counterpart of this letter to DSI,
whereupon this letter shall constitute a binding agreement. By
signing this agreement Cryo-Cell hereby acknowledges that this
agreement has been duly authorized by its Board and does not
conflict with any other agreement that it is now party or subject
to.
Sincerely, Agreed & Accepted:
/s/ XXXXXXX X. XXXXXXX /s/ XXX XXXXXXX
---------------------- -------------------------------------
Xxxxxxx X. Xxxxxxx Xxx Xxxxxxx - Chief Executive Officer
President Dated: FEBRUARY 19, 1999
CRYO-CELL INTERNATIONAL, INC.
TERM SHEET
SUMMARY OF PRINCIPAL TERMS
Issuer: CRYO-CELL International, Inc.
Security: $7,000,000 of preferred stock with
warrants
Maturity: The preferred shares will mature on
April 1, 2006
Dividend: Quarterly, in cash or kind, at the
option of the Company, until April
1, 2001 and thereafter in cash only,
at the rate of 7.5% per annum,
payable in arrears.
Callability: The preferred shares will be
callable at issue price plus accrued
dividends, if any, on 30 days notice
at the option of the Company, at any
time.
Ranking: The preferred shares will rank
senior to all obligations of the
Company with a carve-out for a
mutually agreeable working capital
facility when and if needed.
Covenants: The preferred shares will have
financial covenants that are
standard and typical for this type
of financing, including but not
limited, to restrictions on the
issuance of additional indebtedness,
minimum net capital requirements,
and a negative pledge on any asset
sales unless approved.
Warrants: The preferred shares will have
detachable warrants for the purchase
of $7,000,000 of the Company's
common stock at the rate of common
shares to warrants based upon the 20
day average closing price of the
Company's common shares prior to the
close of this transaction. Dublind
will agree to market the warrants at
a 10% conversion premium to the
common share price, but the Company
acknowledges and agrees to accept a
transaction based upon a 0% premium
to the common shares price if
dictated by the marketplace.
Additionally, Dublind agrees not to
bind CRYO-CELL to any transaction
that would require the Company to
accept a conversion rate below $2.00
should the common share price trade
down below that level.
Warrant Conversion: The warrants will be
convertible into $7,000,000 of the
Company's common stock at the
conversion price at any time at the
option of the holder. The warrants
will be callable at any time at the
option of the Company, should the
closing price of the Company's
common shares be higher than $7.50
per share for 20 consecutive trading
days.
Other Rights: Quarterly financial reports
One representative to the Company's
Board of Directors
Legal and Due Diligence: Costs to be paid by the Company
The above mentioned terms and conditions constitute CRYO-CELL International,
Inc.'s marketing instructions to Dublind Securities and CRYO-CELL's commitment
to issue the described securities upon the submission by Dublind Securities of
such an acceptable term sheet from an investor(s). By your signature below you
acknowledge that CRYO-CELL's Board of Directors has authorized this transaction
and that this marketing mandate does not conflict with any other capital raising
activities.
/s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx - CEO
Dated: 2/22/99
