EXHIBIT 4.1
Retainer Agreement
LAW OFFICES OF
XXXXXXX & BEAM
TWO XXXXXXX XXXXX
XXXXX 000
XXXXXX, XXXXXXXXXX 00000
(000) 000-0000
(000) 000-0000
FAX: (000) 000-0000
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx X. Xxxx, Esq.
Xxxxx Xxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Xxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
June 4, 1996
Xx. Xxxxxx Xxxxxxx VIA FACSIMILE
Cryo-Cell International, Inc.
0000 Xxxxx Xxx.
Xxxxxxx, Xxx Xxxx 00000
RE: LEGAL REPRESENTATION
Dear Xx. Xxxxxxx:
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 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 xxxx
you on a monthly basis. You will have 10 days from receipt of this xxxx 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 xxxx. 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 xxxx (the "Purchase Price") (i.e.,. if our xxxx 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 xxxx 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 xxxx 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 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,
XXXXXXX & BEAM
/s/ XXXXXXXX X. XXXXXXX
-----------------------
Xxxxxxxx X. Xxxxxxx
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/ XXXXXX XXXXXXX
------------------
Title: Chief Executive Officer
SSN: 00-000-0000
