CCEL 8-K
Cryo Cell International Inc (CCEL)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On March 14, 2022, Cryo-Cell International, Inc. ("Cryo-Cell", or "the Company") entered into a Purchase Agreement ("Agreement") with Scannell Properties #502, LLC ("Seller") to acquire a commercial office building and associated property that is under construction ("the Property") located at 857 S. Briggs Avenue, Durham County, Durham, North Carolina ("Land")
Pursuant to the terms of the Agreement, the Company's obligation to close the acquisition of the Property is subject to customary closing conditions. The Agreement contains customary representation and warranties by the Seller. Although the Company believes that the acquisition is probable, there can be no assurance that the acquisition of the Property will be consummated.
The purchase price for the Property is Eleven Million Two Hundred Thousand Dollars ($11,200,000). Pursuant to the Agreement, on March 16, 2022, the Company transferred an initial earnest deposit of Two Hundred Thousand Dollars ($200,000). The Company intends to fund the purchase price with cash on hand, cash flow from operations and with future additional financing.
Seller is constructing certain improvements upon the Land, including but not limited to an approximately 56,000 square foot building to be utilized by Cryo-Cell. The consummation of the purchase is subject to the Company's completion of due diligence and various closing conditions to be met by the parties. If the Company does not close on the Property, there are provisions under which the Seller may have to refund the deposit or a portion thereof.
The foregoing summary of the Agreement is qualified in its entirety by the Agreement, which is attached hereto as Exhibit 10.1.
Item 8.01 Other Information
On March 16, 2022, the Company issued a press release announcing the Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
The following document is filed with this Current Report on Form 8-K.
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Exhibit No. |
Description |
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10.1 |
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99.1 |
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104 |
Cover Page Interactive data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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Date: |
March 16, 2022 |
By: |
/s/ David Portnoy |
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David Portnoy, Chairman and Co-CEO |
Exhibit 10.1
PURCHASE AGREEMENT
BETWEEN
SCANNELL PROPERTIES #502, llc
AS SELLER
AND
CRYO-CELL INTERNATIONAL, INC.
AS PURCHASER
March 14, 2022
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (“Agreement”) is made and entered into effective as of March 14, 2022 (the “Effective Date”) by and among SCANNELL PROPERTIES #502, llc, an Indiana limited liability company (the “Seller”) and CRYO-CELL INTERNATIONAL, INC., a Delaware corporation (the “Purchaser”).
WITNESSETH:
WHEREAS, Seller is the owner of certain property consisting of approximately 6.9246 acres of land located 857 S. Briggs Avenue, Durham County, Durham, North Carolina, as more specifically described on Exhibit A, attached hereto and incorporated herein by reference (the “Land”);
WHEREAS, Seller is constructing certain improvements upon the Land, including but not limited to an approximately 56,000 square foot building to be utilized by Purchaser as a distribution and warehouse facility (the “Building”) in accordance with plans and specifications set forth on Exhibit B which have been finally approved all relevant jurisdictions, attached hereto and incorporated herein by reference (the “Plans and Specifications”) and otherwise upon terms and conditions set forth in this Agreement (with the development of the Improvements in accordance with (i) the Plans and Specifications; and (ii) this Agreement, being referred to herein as the “Project”); and
WHEREAS, the Purchaser desires to purchase the Property (as defined herein) and the Seller desires to sell the Property, all upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
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The property described in subparagraphs 1.1 through 1.3 hereof is hereinafter sometimes collectively referred to as the “Premises”. The property described in subparagraphs 1.1 through 1.8 hereof is hereinafter sometimes collectively referred to as the “Property”.
Within three (3) business days of full execution of this Agreement, Purchaser shall deliver an initial earnest money deposit of Two Hundred Thousand Dollars ($200,000.00) (the “Initial Deposit”) to First American Title Insurance Company (the “Title Company”) at 30 N. LaSalle Street, Suite 2700, Chicago, Illinois 60602, Attn: Tricia Rogers, VP, to be held in escrow with the Title Company in accordance with this Agreement and deposited in an interest bearing account acceptable to the Purchaser. In addition, if Purchaser exercises its right to extend the Closing Date (as defined in Section 9.1), Purchaser shall deposit an additional sum of Fifty Thousand and No/100 Dollars ($50,000.00) with the Title Company for such Closing Extension (as defined in Section 9.2, below) (with any additional deposit being referred to as an “Additional Deposit”). The Initial Deposit and any Additional Deposit (if applicable) shall be collectively referred to herein as the “Earnest Money Deposit”. Twenty-Five Thousand Dollars ($25,000.00) of the Initial Deposit shall be immediately non-refundable upon the Effective Date, except as otherwise expressly provided in Sections 4, 14, 17.1 and/or 19.4 hereof. The remainder of the Initial Deposit in the amount One Hundred Seventy-Five Thousand Dollars ($175,000.00) (the “Refundable Initial Deposit”) shall remain fully refundable until the Contingency Date (as defined hereinafter), or as otherwise provided in this Agreement. Any Additional Deposit shall be immediately non-refundable once made, except as otherwise expressly provided in Sections 4, 14, 17.1 and/or 19.4 hereof. If the Purchaser fails to exercise its rights to terminate this Agreement as and when contemplated in Section 8, below, then the Refundable Initial Deposit shall become non-refundable, except as otherwise expressly provided in Sections 4, 8.2, 11.1, 13, 14, 17.1 and/or 19.4 hereof. At Closing (as defined hereinafter), the Earnest Money Deposit shall be applied to the Purchase Price. Any interest earned on the Earnest Money Deposit shall, at Purchaser’s option be credited to Purchaser at Closing and applied to the Purchase Price or returned to Purchaser. The Earnest Money Deposit shall be held by the Title Company, in escrow, and disposed of only in accordance with the following provisions:
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The Seller’s representations and warranties contained herein shall survive the Closing and the delivery of the Deed (as defined hereinafter) for a period of twelve (12) months.
To the extent that Purchaser obtains actual knowledge prior to the expiration of the Contingency Period that Seller’s representations and warranties set forth in this Section were inaccurate, untrue or incorrect in any way as of the Effective Date, (i) Purchaser shall provide Seller written notice thereof within five (5) business days after Purchaser obtains such knowledge; and (ii) such representations and warranties shall be deemed modified for all purposes of this Agreement to reflect the accurate, true or correct state of facts known to Purchaser, and Seller shall have no liability hereunder for such inaccurate, untrue or incorrect representation or warranty.
If, after the expiration of the Contingency Period but prior to the Closing, Purchaser obtains actual knowledge that any of Seller’s representations and warranties set forth in this Section were untrue, inaccurate or incorrect in any material respect as of the Effective Date, Purchaser shall give Seller written notice thereof within fifteen (15) business days of obtaining such knowledge (but, in any event, prior to the Closing). Purchaser, as its sole remedy, shall have the following rights: (i) if any of Seller’s representations or warranties set forth in this Section were untrue, inaccurate or incorrect in any material respect as of the Effective Date, then Purchaser may elect either (A) to waive such misrepresentations and consummate the
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Closing without any reduction of or credit against the Purchase Price and without any liability of Seller hereunder for such inaccurate, untrue or incorrect representation or warranty, or (B) to terminate this Agreement by written notice given to Seller on or before the Closing Date, in which event, (w) the Title Company shall refund the Earnest Money Deposit to Purchaser; (x) Seller shall reimburse Purchaser for its reasonable out of pocket expenses incurred negotiating this Agreement and pursuing the Property in a total aggregate amount to not exceed One Hundred Fifty Thousand Dollars ($150,000) as demonstrated by invoices and other reasonable documentation evidencing costs incurred; and (z) thereafter Seller and Purchaser shall not have any further liabilities hereunder except for obligations which by the express terms of this Agreement survive the termination of this Agreement.
If any of Seller’s representations and warranties set forth in this Section were untrue, inaccurate or incorrect on the Effective Date but were not untrue, inaccurate or incorrect in any material respect, Purchaser shall be deemed to waive such misrepresentation or breach of warranty, and Purchaser shall be required to consummate the Closing without any reduction of or credit against the Purchase Price and without any liability of Seller hereunder for any such inaccurate, untrue or incorrect representation or warranty. The untruth, inaccuracy or incorrectness of Seller’s representations and warranties under this Section shall be deemed “material” for purposes of this Agreement only if Purchaser’s damages resulting from such untruth, inaccuracy or incorrectness are reasonably estimated to exceed Twenty Five Thousand Dollars ($25,000.00) in the aggregate. Seller’s representations and warranties under this Section shall be remade by Seller as of the Closing Date; provided, however, such representations and warranties shall be modified to reflect Purchaser’s actual knowledge with respect to any such representation and warranty. Without limiting the foregoing, Purchaser may not bring any action against Seller for a breach of any representation, warranty, indemnity or covenant of Seller contained in this Agreement or in any agreement delivered by Seller to Purchaser at Closing unless and until the aggregate amount of all liability and losses arising out of any such breach exceeds Twenty-Five Thousand Dollars ($25,000.00), it being Seller's desire to curtail any frivolous lawsuits. In addition, in no event will Seller's liability for all such breaches exceed, in the aggregate, Seven Hundred Fifty Thousand Dollars ($750,000.00).
Except as expressly set forth herein, the Seller makes no warranty or representations whatsoever, express or implied, regarding the condition, or the fitness for any particular purpose or use, of the Property purchased and sold hereunder. Except as expressly contemplated herein or in any closing documents delivered by Seller pursuant to this Agreement, (a) Purchaser acknowledges and agrees it is purchasing the Property “AS IS, WHERE IS AND WITH ALL FAULTS,” and (b) Purchaser for itself and to the extent permitted by law for its successors and assigns hereby waives, releases and discharges Seller from any and all claims, demands, liabilities, damages, obligations, fines, penalties, costs and expenses, including (without limitation) reasonable attorneys’ fees and disbursements (collectively, the “Liabilities”), and covenants not to sue Seller for any Liabilities caused by, arising out of, or related to the condition of the Property. Notwithstanding anything contained herein to the contrary, the provisions of this paragraph shall survive Closing indefinitely.
Upon Closing, Purchaser shall assume the risk that all conditions relative to the Property may not have been revealed by Purchaser’s investigations. The release and waiver of claims set forth below shall be referred to as the “Release.” Purchaser, on its own behalf and on behalf of its members, managers, successors and assigns and their respective members, managers, partners, officers, directors, employees, parents, affiliates and subsidiaries, and their respective successors and assigns (collectively, “Waiver Parties”) releases Seller and its members, managers, officers, directors, employees, attorneys and representatives and their respective successors and assigns (collectively, the “Released Parties”) from and waives any and all liability, claims, demands, damages and costs (including attorneys’ fees and expenses) of any and every kind or character, known or unknown, for, arising out of, or attributable to the condition of the Property, including, any and all actual, threatened or potential claims, claims for contribution under any law relating to Hazardous Materials, suits, proceedings, actions, causes of action, demands, liabilities,
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losses, obligations, orders, requirements or restrictions, liens, penalties, fines, charges, debts, damages, costs, and expenses of every kind and nature, whether now known or unknown, whether foreseeable or unforeseeable, whether under any foreign, federal, state or local law (both statutory and non-statutory), and, whether asserted or demanded by a third party against any of the Waiver Parties or incurred directly or indirectly by any of the Waiver Parties themselves, that any of the Waiver Parties may now or hereafter have against any of the Released Parties (collectively, “Claims”), and that arise in connection with or in any way are related to (i) the physical condition of the Property, the financial condition of the Property, the value of the Property or its suitability for Purchaser’s use, the ownership, management or operation of the Property, or the accuracy or completeness of any information reviewed by Purchaser in connection with its investigations of the Property and which may have been relied upon by Purchaser in deciding to purchase the Property, (ii) any handling of any Hazardous Materials at, beneath, to, from, or about the Property, (iii) any compliance or non-compliance with environmental laws regarding any Hazardous Materials or any handling related thereto at, beneath, to, from, or about the Property, (iv) any acts, omissions, services or other conduct related to any of the foregoing items “(i)” through “(iii),” inclusive, and/or (v) any condition, activity, or other matter respecting the Property that is not addressed by any of the foregoing items “(i)” through “(iv),” inclusive, and that is related to pollution or protection of the environment, natural resources, or public health. Purchaser acknowledges that any condition of the Property which Purchaser discovers or desires to correct or improve prior to or after the Closing Date shall be at Purchaser’s sole expense. Notwithstanding anything contained herein to the contrary, the provisions of this paragraph shall survive Closing indefinitely.
As used in this Agreement, the term “Hazardous Materials” shall mean, without limitation, any material or substance which is (i) defined as a “hazardous waste,” “extremely hazardous waste,” “restricted hazardous waste”, “hazardous substance,” or “hazardous material” under the laws or regulations of the State of North Carolina, (ii) petroleum, (iii) asbestos, (iv) designated as a hazardous waste pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), (v) defined as hazardous waste pursuant to Section 1004 of the Federal Resource Conservation Recovery Act (42 U.S.C. § 1601 et seq.) (42 U.S.C. § 6903), (vi) defined as a hazardous substance pursuant to Section 101 of the Comprehensive Environmental Response Compensation Liability Act (42 U.S.C. § 9601 et seq.), (vii) anything listed by the State of North Carolina as a chemical known by the State to cause cancer or reproductive toxicity, and (viii) any material the presence of which would require mitigation or remediation pursuant to the guidelines set forth by the State of North Carolina.
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The Purchaser’s representations and warranties contained herein shall survive the Closing and the delivery of the Deed for a period of twelve (12) months.
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If any of the conditions to the Closing set forth in this Section 11.1 are not otherwise timely satisfied or waived by the other party, for a reason other than a default of such party, then (i) the rights and obligations of Purchaser and Seller shall terminate, and the parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive the termination of this Agreement; (ii) the Title Company is hereby instructed to promptly return to Seller and Purchaser all documents deposited by them, respectively, into escrow which are held by the Title Company on the date of said termination; (iii) refund the Refundable Initial Deposit to Purchaser; and (iv) the cancellation charges required to be paid by and to the Title Company shall be split equally between the parties and all other charges shall be borne by the party incurring same.
If any of the conditions to the Closing set forth in this Section 11.2 are not timely satisfied by the Purchaser or waived by the Seller, for a reason other than a default of Purchaser, then (i) the rights and obligations of Purchaser and Seller shall terminate, and the parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive the termination of this Agreement; and (ii) the Title Company is hereby instructed to promptly return to Seller and Purchaser any refundable funds and documents in Title Company’s possession or control and which are held by the Title Company on the date of said termination; and (iii) the cancellation charges required to be paid by and
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to the Title Company shall be split equally between the parties and all other charges shall be borne by the party incurring same.
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If to Seller: |
Scannell Properties #502, LLC 8801 River Crossing Blvd., Suite 300 Indianapolis, Indiana 46240 Attn: David J. Duncan E-Mail: [email protected] [email protected], and [email protected]
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with a copy to: |
Bose McKinney & Evans LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Attn: Tony Setzer E-Mail: [email protected]
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If to Purchaser: |
Cryo-Cell International, Inc. 700 Brooker Creek Blvd., Ste. 1800 Oldsmar, FL 34677 Attn: David Portnoy E-Mail: [email protected]
And copies by email to Tom Moss at [email protected] and [email protected]
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with a copy to: |
Kennon Craver, PLLC 40111 University Dr., Ste. 300 Durham, NC 27707 Attn: Will Anderson E-Mail: [email protected]
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The parties may change their respective addresses and/or telefax/telecopy numbers for the receipt of notice hereunder by giving notice thereof to the other party in accordance herewith.
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[Remainder of Page Left Intentionally Blank]
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SIGNATURE PAGE TO PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first above written.
Seller: |
SCANNELL PROPERTIES #502, LLC
By: /s/ Marc D Pfleging Marc D. Pfleging, Manager
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Purchaser: |
CRYO-CELL INTERNATIONAL, INC.
By: /s/ David Portnoy Printed: David Portnoy Title: Co-CEO
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Schedule of Exhibits:
Exhibit A Legal Description of the Property
Exhibit B Plans and Specifications
Exhibit C Documents Provided by Seller
Exhibit D Form of Deed
Exhibit E Form of Bill of Sale
Exhibit F Form of Assignment of Warranties
Exhibit H Form of Punchlist and Construction Letter
Exhibit I Form of Punchlist and Construction Escrow Agreement
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AGREEMENT OF TITLE COMPANY
The undersigned has executed this Agreement solely to confirm its agreement to hold the Earnest Money Deposit in escrow in accordance with the provisions hereof and comply with the provisions of Section 2.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of _____________________, 2022.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: _________________________________________
Printed: _____________________________________
Title: _______________________________________
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Exhibit A
Legal Description of the Land
Regional Commerce Center 5, 857 S. Briggs Avenue, Durham, NC, Durham, NC
All that certain lot or parcel of land situated in Durham County, North Carolina, and more particularly described as follows:
LOT 5 OF THE FINAL SUBDIVISION, RECOMBINATION AND EASEMENT PLAT OF REGIONAL COMMERCE CENTER LOTS 3, 4 & 5, AS SHOWN ON THAT PLAT RECORDED IN PLAT BOOK 205, PAGES 231 THROUGH 234, DURHAM COUNTY REGISTRY, AS PREPARED BY DAN GREGORY, P.L.S. OF BASS, NIXON & KENNEDY, INC.
Exhibit B
Plans and Specifications
Project Specifications:
REGIONAL COMMERCE CENTER – BUILDING 5
Site Development and Shell Description
Project Summary
Expansion to 20 positions available via knock out panels.
Two (2) 12’ x 14’ drive-in doors
Drawing Log:
Exhibit C
Documents Provided by Seller
Exh. D - 1
27354765.2
Exhibit D
Form of Deed
Excise Tax: |
Recording Time, Book and Page |
Tax Lot No.: Parcel Identifier No.
Verified by County on the day of , 2022
by
This instrument was prepared by
Mail after recording to: Grantee
NORTH CAROLINA
SPECIAL WARRANTY DEED
THIS DEED made this ____day of ______________ 2022, by and between
GRANTOR
Scannell Properties #___, LLC, an Indiana limited liability company 8801 River Crossing Blvd., Suite 300 Indianapolis, IN 46240
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GRANTEE
[_____________________] |
Exhibit C - 2
27354765.2
The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.
WITNESSETH, that the Grantor, for a valuable consideration paid by Grantee, the receipt of which is hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto Grantee in fee simple, all that certain lot or parcel of land situated in ______ County, North Carolina, and more particularly described as follows:
See Exhibit A attached hereto and incorporated herein.
The property hereinabove described was originally acquired by Grantor by instruments recorded in the ______ County Registry as follows: Deed Book _________, Page _________ as Instrument No. _________.
The property herein conveyed does not include the primary residence of Grantor.
A map showing the above described property is recorded in the ______ County Registry as follows: Plat Book _________, Page _________.
TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all buildings, improvements, fixtures, easements, tenements, hereditaments, and privileges and appurtenances of every kind or nature thereto belonging to the Grantee in fee simple.
And Grantor covenants with the Grantee, that Grantor has done nothing to impair such title as Grantor received, and Grantor will warrant and defend the title solely against the lawful claims of all persons claiming by, under or through Grantor, other than the matters specifically listed on Exhibit B attached hereto.
[Signature Page to Follow]
Exhibit C - 1
27354765.2
IN WITNESS WHEREOF, the Grantor has duly executed the foregoing as of the day and year first above written.
GRANTOR:
SCANNELL PROPERTIES #____, LLC,
an Indiana limited liability company
By: DO NOT SIGN – EXHIBIT ONLY
Printed: ___________________________
Title: _____________________________
STATE OF ___________ )
) SS:
COUNTY OF __________ )
Before me, a Notary Public, in and for said County and State, personally appeared ___________________________________, known by me to be the ______________________ of ___________________________, who acknowledged execution of the foregoing instrument for and on behalf of said _________________________________.
WITNESS my hand and notarial seal this _____ day of _____________, 20___.
____________________________, Notary Public
Printed Name: _____________________________
My Commission Expires: ___________________
My County of Residence: ___________________
My Commission Number: ___________________
EXHIBIT “A” TO DEED
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT “B” TO DEED
PERMITTED EXCEPTIONS
Exhibit C - 2
27354765.2
Exhibit E
Form of Bill of Sale
BILL OF SALE
THIS BILL OF SALE is made and entered into as of the ____ day of ___________, _____, by and between SCANNELL PROPERTIES #502, LLC, an Indiana limited liability company (the “Seller”) and CRYO-CELL INTERNATIONAL, INC., a Delaware corporation (the “Purchaser”).
WHEREAS, Seller and Purchaser are parties to that certain Purchase Agreement dated _________________ __, 2022, (the “Agreement”) for the sale of the Property (as defined in the Agreement); and
WHEREAS, pursuant to the Agreement, Seller has also agreed to sell, transfer, grant and convey to Purchaser all tangible personal property of every kind and nature owned by Seller which is specifically located in or upon the Property, and, in the conjunctive, used in connection with the operation and/or maintenance of the Property (all of the aforesaid property to be conveyed by Seller being hereinafter collectively referred to as the “Personal Property”); and
WHEREAS, Purchaser desires to accept the sale, transfer, grant and conveyance of Seller’s interest in the Personal Property.
NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto stipulate, covenant and agree as follows:
1. Seller does hereby sell, transfer, grant, convey, and deliver unto Purchaser, all of Seller’s right, title and interest in and to the Personal Property.
2. Seller represents, covenants and warrants to Purchaser, and its successors and assigns, that Seller is the owner of the Personal Property, has full right and title thereto and authority to sell the same, and has sold, transferred, granted, conveyed, and delivered the Personal Property free and clear of all liens, encumbrances, mortgages and security interests.
3. All of the Personal Property is transferred from Seller to Purchaser “as is.” Seller makes no implied warranty of merchantability and no warranty, either express or implied, concerning the Personal Property, except for the representations and warranties expressly set forth in this Bill of Sale.
4. Purchaser does hereby accept the foregoing sale, transfer, grant and conveyance.
5. If any provision or provisions of this Bill of Sale shall be unlawful, then such provision or provisions shall be null and void, but the remainder of the Bill of Sale shall remain in full force and effect and binding on Seller and Purchaser. This Bill of Sale constitutes the entire understanding and agreement between the parties and may not be amended, supplemented, or modified except by a writing executed by both of the parties. This Bill of Sale shall be binding upon, and shall benefit, the parties and their heirs, personal representatives, successors and assigns. This Bill of Sale and all related documents shall be governed by the laws of the State of North Carolina. In the event of any enforcement of the terms of this Bill of Sale by either party hereto, the prevailing party in such litigation shall be entitled to its reasonable attorneys’ fees in connection with such enforcement action.
Exhibit C - 3
27354765.2
6. This Bill of Sale may be executed in two or more identical counterparts which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed these presents as of the date and year first above written.
SELLER: |
SCANNELL PROPERTIES #502, LLC
By: DO NOT SIGN – EXHIBIT ONLY Printed: ___________________________ Title: _____________________________
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PURCHASER: |
CRYO-CELL INTERNATIONAL, INC.
By: DO NOT SIGN – EXHIBIT ONLY Printed: ___________________________ Title: _____________________________
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Exhibit C - 4
27354765.2
Exhibit F
Form of Assignment of Warranties
ASSIGNMENT OF WARRANTIES
THIS ASSIGNMENT OF WARRANTIES is made and entered into as of the ____ day of ________________, 2022, by SCANNELL PROPERTIES #502, LLC, an Indiana limited liability company (“Assignor”) for the benefit of CRYO-CELL INTERNATIONAL, INC., a Delaware corporation (the “Assignee”).
RECITALS
A. Assignor, as Seller, and Assignee, as Purchaser, have entered into that certain Purchase Agreement dated _________________ __, 2022, as amended (the “Agreement”) for the sale of the real property legally described on Exhibit A attached hereto and incorporated herein by this reference (the “Land”) and the building (the “Building”) and other improvements located on the Land (with the Building and such other improvements being collectively referred to as the “Improvements”), and with the Land and the Improvements being collectively referred to as the “Property”), as more particularly described in the Agreement.
B. Pursuant to the Agreement, Assignor has agreed to assign to Assignee upon the closing of the sale of the Property to Assignee, all of the interest of Assignor in and to any assignable claims, guarantees, warranties and other undertakings in effect as of the date hereof covering the quality or performance of the construction or the quality of materials used in the construction of the improvements upon the Property including but not limited to the heating, ventilation, air-conditioning systems, roof systems, and all the other building systems, equipment and fixtures (collectively, “Warranties”).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. The Assignor does hereby assign to Assignee all of its interest in the Warranties, with a reservation of rights in favor of Assignor with respect to each and all of such Warranties to the extent, and only to the extent, that any claims are made by Assignee or any other party against Assignor in respect of any matter covered by any such Warranties, so that Assignor will have the ability to pursue claims on and with respect to any such Warranties in pari passu with Assignee. The foregoing reservation of rights will not, however, be deemed or construed as creating any basis for any claim against Assignor that has been waived or otherwise relinquished by Assignee under and/or pursuant to the Agreement.
2. All of the Warranties are being assigned “as is.” Assignor makes no warranty, either express or implied, concerning the Warranties.
3. All notices and other communication between the parties hereto shall be in writing and shall be sent by certified or registered mail, return receipt requested, by personal delivery against receipt; by overnight courier or by facsimile at the addresses and fax numbers identified in the Agreement. Notice shall be deemed to have been validly served, given or delivered immediately when delivered against receipt or by facsimile, or upon receipt or refusal to accept delivery after deposit in the mail, postage prepaid, or with an overnight courier.
Exhibit C - 5
27354765.2
4. This Assignment shall be governed by North Carolina law without regard to its conflicts of law rules. If any term or provision of this Assignment shall be unlawful, then such term or provision shall be null and void, but the remainder of this Assignment shall remain in full force and effect and be binding on both Assignor and Assignee. This Assignment constitutes the entire understanding and agreement between the parties with respect to the subject matter contained herein and may not be amended, supplemented, or modified except by a writing executed by both of the parties hereto. This Assignment shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. In the event of any enforcement of the terms of this Assignment by either party hereto, the prevailing party in such litigation shall be entitled to its reasonable attorneys’ fees in connection with such enforcement action.
IN WITNESS WHEREOF, the parties have executed this Assignment of the date first above written.
Assignor
SCANNELL PROPERTIES #502, LLC
By: DO NOT SIGN – EXHIBIT ONLY
Printed: ___________________________
Title: _____________________________
Exhibit C - 6
27354765.2
Exhibit G
Form of Punchlist and Construction Side Letter
Date
____________________
____________________
____________________
Re: Purchase Agreement dated _________________ __, 2022 (the “Purchase Agreement”) for approximately 6.9246 acres of land located 857 S. Briggs Avenue, Durham County, Durham, North Carolina (the “Property”) by and between Scannell Properties #502, LLC (“Seller”) and CRYO-CELL INTERNATIONAL, INC., a Delaware corporation (“Purchaser”).
Ladies and Gentlemen:
In connection with the closing on the sale of the Property under the Purchase Agreement, Purchaser and Seller have identified certain on-going obligations and expectations that Purchaser has for Seller as more particularly set forth on Schedule 1, attached hereto and incorporated herein (the “Punchlist”). Following the closing on the sale of the Property, Seller will continue to retain responsibility for the completion of any and all items identified on the Punchlist.
Sincerely,
Scannell Properties #502, LLC
By: DO NOT SIGN – EXHIBIT ONLY
Printed: _________________________
Title: ___________________________
Exhibit C - 7
27354765.2
Schedule 1 to Punchlist and Construction Side Letter
Punchlist
Exhibit C - 8
27354765.2
Exhibit H
Form of Punchlist and Construction Escrow Agreement
PUNCHLIST AND CONSTRUCTION ESCROW AGREEMENT
This Punchlist and Construction Escrow Agreement (the “Agreement”) is entered into as of the ____ day of _______________, 2022, by and among SCANNELL PROPERTIES #502, LLC, an Indiana limited liability company (“Seller”), CRYO-CELL INTERNATIONAL, INC., a Delaware corporation (“Purchaser”), and FIRST AMERICAN TITLE INSURANCE COMPANY, a title/escrow company (the “Escrow Agent”).
RECITALS:
WHEREAS, Seller and Purchaser entered into that certain Purchase Agreement with an Effective Date of _________________ __, 2022, as amended (collectively, the “Purchase Agreement”); and
WHEREAS, the Purchase Agreement contemplates the sale by Seller to Purchaser of the Property (as more particularly defined in the Purchase Agreement); and
WHEREAS, under and consistent with the terms of the Purchase Agreement, it is the intent of the Purchaser and Seller that Seller remain responsible, at Seller’s sole cost and expense, for the Completion of the Punchlist Items (as defined in the Purchase Agreement); and
WHEREAS, the Purchase Agreement contemplates that a portion of the Purchase Price (as defined in the Purchase Agreement) in an amount equal to the Punchlist and Construction Escrow Amount (as defined in the Purchase Agreement) will be placed into escrow to ensure that funds are available for the completion of the Punchlist Items; and
WHEREAS, the Seller and Purchaser have each agreed to consummate the transaction contemplated by the Purchase Agreement and Seller and Purchaser have agreed that the Punchlist and Construction Escrow Amount is and will be One Hundred Twenty-Five Percent (125%) of the estimated amount necessary for Seller to achieve completion of the Punchlist Items (the “Funds”). The parties have agreed to deliver the Funds to Escrow Agent to secure the obligation of Seller to achieve completion of the Punchlist Items, and the parties have agreed that such Funds will be held by the Escrow Agent in accordance with the terms and conditions of this Agreement; and
WHEREAS, the Escrow Agent has agreed to serve as Escrow Agent, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Incorporation of Recitals. The above and foregoing Recitals, including all defined terms set forth therein, are incorporated into this Agreement. Any initially capitalized terms which are used, but not otherwise expressly defined in this Agreement will have the meanings specified in the Purchase Agreement.
2. Deposit of the Funds. Concurrently with Closing, Purchaser and Seller agree that a portion of the Purchase Price in an amount equal to the Punchlist and Construction Escrow Amount will be deposited with the Escrow Agent and that the Funds so deposited are to be held and disbursed to Seller and/or
Purchaser, as applicable, by the Escrow Agent strictly in accordance with the terms and provisions of this Agreement.
3. Interest Bearing Account. The Funds will be held in escrow in an interest bearing account by the Escrow Agent until the Funds are disbursed to Seller and/or Purchaser, as applicable, under the terms of this Agreement. The Seller will furnish the Escrow Agent with an appropriately completed W-9 form for this purpose, and will provide written investment instructions for the Escrow Agent to invest the Funds. Any interest or other income earned on the Funds will be deposited and may be commingled with the Funds, and will become a part of the Funds for all purposes hereunder.
4. Interim Disbursement of Funds. Prior to completion of the Punchlist Items the Seller shall be entitled to submit an application for payment (herein an “Interim Disbursement Request”) to Purchaser and Escrow Agent. Any such Interim Disbursement Request shall include all of the lien waivers and other supporting documentation that Seller’s general contractor (the “Contractor”) is otherwise required to provide to the Seller under the Construction Contract with Seller for the Punchlist Items and a certification from Seller that the work identified in the Interim Disbursement Request has been completed in compliance with the requirements of the Purchase Agreement. Upon receipt of any such Interim Disbursement Request and its supporting documentation, Purchaser shall have ten (10) business days to deliver a written objection to Escrow Agent and Seller concerning the Interim Disbursement Request (an “IDR Objection Notice”). If Purchaser does not deliver an IDR Objection Notice to Escrow Agent and Seller within such ten (10) business day period, the Interim Disbursement Request shall be deemed approved by Purchaser, and Escrow Agent shall deliver a portion of the Funds, in the amount specified for payment under the Interim Disbursement Request (the “Interim Funding Amount”) to the Seller. Any such IDR Objection Notice will include a statement of the Purchaser as to the specific basis for its objection(s) to the Interim Disbursement Request. Upon receipt thereof, the Seller will be entitled to address and/or correct the underlying items identified by the Purchaser as its basis for issuing the IDR Objection Notice and the Seller will be entitled to resubmit a new Interim Disbursement Request to the Escrow Agent and Purchaser, as contemplated above. Escrow Agent will have no obligation to review any IDR Objection Notice that may be issued by the Purchaser to ascertain if the Purchaser does or does not have a right to object to the disbursement of the Interim Funding Amount. The Escrow Agent’s sole obligation with respect to any Interim Disbursement Request is to disburse the Interim Funding Amount to the Seller unless the Escrow Agent receives a timely IDR Objection Notice from the Purchaser within the ten (10) business day period provided herein. If the Escrow Agent does receive a timely IDR Objection Notice from the Purchaser, then the Escrow Agent will retain all of the Funds on deposit until Escrow Agent either (i) receives a new Interim Disbursement Request from the Seller, in which case the process contemplated above will be reinitiated; or (ii) receives direction and authorization in writing from both Seller and Purchaser regarding delivery or disposition of the Interim Funding Amount or any other portion of the Funds. In the event Seller and Purchaser are not able to agree upon direction and authorization to Escrow Agent for the delivery or disposition of the Funds, Escrow Agent may at its option (a) continue to hold the Funds until it obtains a court order directing delivery of the Funds, or (b) tender the Funds into court in connection with a judicial proceeding initiated by Escrow Agent to determine the rights and obligations of the parties with respect to the Funds.
5. Disbursements upon Completion. Upon completion of the Punchlist Items, Seller shall submit a written certification (the “Completion Certificate”) addressed to the Purchaser and Escrow Agent, certifying that the Seller has completed the Punchlist Items. Upon receipt of the Completion Certificate, the Escrow Agent shall disburse the balance of the Funds to the Seller.
6. Time for Completion. The Seller will have one hundred twenty (120) days to complete the Punchlist Items and submit a Completion Certificate under this Agreement or such longer period as approved by Seller for completion thereof. If the Seller fails to complete the Punchlist Items and timely deliver the Completion Certificate as contemplated herein, then Purchaser shall have the right, but no
obligation, to complete the remaining Punchlist Items and receive payment of the cost thereof from the Funds remaining on deposit under this Agreement. In such a case, if Seller had, theretofore, promptly commenced and has, thereafter, been diligently pursuing completion of the Punchlist Items, then Purchaser will endeavor to afford Seller such additional time as may be reasonably required to complete the Punchlist Items; provided, however that Purchaser shall have no obligation to provide any additional time beyond August 17, 2022. In any event, before initiating any such self-help efforts to complete the Punchlist Items, Purchaser shall give Seller written notice of its intent to complete such work. Any such remaining Funds, plus any earnings thereon, minus the portion of the Funds used by Purchaser, shall then be paid to Seller.
7. Notices. The parties agree that all notices and other communications which may be or are required to be given hereunder shall be in writing and shall be deemed to have been properly given and received on the date: (i) delivered by facsimile transmission or by electronic mail (e.g. email), with acknowledgement, (ii) delivered in person, (iii) deposited in the United States mail, registered or certified, return receipt requested, postage prepaid, or (iv) deposited prepaid with a nationally recognized overnight courier, to the following respective addresses:
If to Seller: |
Scannell Properties #502, LLC 8801 River Crossing Blvd., Suite 300 Indianapolis, Indiana 46240 Attn: David Duncan, Counsel E-mail: [email protected], [email protected], and [email protected]
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with a copy to: |
Bose McKinney & Evans LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Attn: Tony Setzer E-Mail: [email protected]
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If to Purchaser: |
Cryo-Cell International, Inc. 700 Brooker Creek Blvd., Ste. 1800 Oldsmar, FL 34677 Attn: David Portnoy E-Mail: [email protected]
And copies by email to Tom Moss at [email protected] and [email protected]
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with a copy to: |
Kennon Craver, PLLC 40111 University Dr., Ste. 300 Durham, NC 27707 Attn: Will Anderson E-Mail: [email protected]
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If to Escrow Agent: |
_________________________________ _________________________________ _________________________________ _________________________________
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Seller, Purchaser and Escrow Agent may change the address(es) to which they wish notices to be sent by delivering at least ten (10) days’ prior written notice of the change of address to the other parties in accordance with the terms of this Section 7.
8. Satisfaction of Obligations. In all events, upon the Escrow Agent’s final delivery of the Funds in accordance with the terms and conditions of this Agreement, the obligations of the parties under this Agreement shall be deemed fully satisfied and completed.
9. Dispute Resolution. As contemplated in Section 4 and Section 5, above, in the event of a dispute or conflicting demands for the Funds or any portion thereof, the Escrow Agent may at its option continue to hold the Funds until obtaining: (a) a court order directing its payment; or (b) it may tender the Funds into the court in connection with any appropriate proceeding to determine the rights and obligations of the parties hereunder. In connection with any such action, Escrow Agent may deduct from the proceeds held herein the cost of making such deposit into the court, including reasonable attorneys’ fees. Notwithstanding, the parties further agree that the Escrow Agent may, at its option, require the receipt,
release and authorization in writing of all parties before paying money or delivering or redelivering documents or property to any party or to third parties.
10. Indemnification of Escrow Agent. The parties jointly and severally agree to indemnify, defend, and hold harmless the Escrow Agent against any and all losses, liabilities, costs (including legal fees), and other expenses in any way incurred by the Escrow Agent in connection with or as a result of any disagreement between the Purchaser and Seller under this Agreement, unless caused by the gross negligence, bad faith, or willful misconduct of the Escrow Agent.
11. Selection of Financial Institution. The parties have agreed that the Escrow Agent will select a bank or other financial institution as the institution in which the Funds are to be held and invested, and the parties release the Escrow Agent from any liability for its security.
12. Consideration. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with the Escrow Agent’s services in connection with administering the Closing under the Purchase Agreement for which it will be paid certain fees and premiums; consequently, the Escrow Agent shall not be entitled to receive a separate fee for acting as the Escrow Agent under this Agreement.
13. Attorneys’ Fees. In the event any suit is brought to enforce or interpret any term of this Agreement, the prevailing party shall be entitled to recover from the other party all attorneys’ fees and costs incurred in connection therewith.
14. Authority. The parties hereto represent and warrant to each other that they have the respective authority to sign this Agreement and that (a) the person signing on behalf of the Purchaser is duly authorized to bind the Purchaser, (b) the person signing on behalf of the Seller is duly authorized to bind the Seller, and (c) the person signing on behalf of the Escrow Agent is duly authorized to bind the Escrow Agent, to the terms and conditions of this Agreement.
15. Counterparts. This Agreement, and any amendments hereto, may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. The parties agree that signatures transmitted by electronic scan and email (including by way of DocuSign or other similar electronic signature exchange software or service) shall have the legal effect of original signatures. At the request of either party, the parties shall promptly exchange executed original counterparts of this Agreement or any amendment hereto.
The parties hereto have executed this Punchlist and Construction Escrow Agreement as of the date and year first written above.
[EXECUTION ON FOLLOWING PAGE]
SIGNATURE PAGE TO
PUNCHLIST AND CONSTRUCTION ESCROW AGREEMENT
Seller: |
SCANNELL PROPERTIES #502, LLC
By: DO NOT SIGN – EXHIBIT ONLY Printed: ___________________________ Title: _____________________________
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Purchaser: |
CRYO-CELL INTERNATIONAL, INC.
By: DO NOT SIGN – EXHIBIT ONLY Printed: ___________________________ Title: _____________________________
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Escrow Agent: |
FIRST AMERICAN TITLE INSURANCE COMPANY
By: DO NOT SIGN – EXHIBIT ONLY Printed: ___________________________ Title: _____________________________
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Exhibit I
Form of General Contractor’s Warranty
Exhibit 99.1
For Immediate Release Contact:
Irene Smith
813-749-2102
CORD BLOOD BANKING LEADER CRYO-CELL ANNOUNCES EXTRAVAULT BIOREPOSITORY SERVICE
OLDSMAR, FL – March 16, 2022 – Cryo-Cell International, Inc. (The Nasdaq Stock Market Symbol: CCEL) (the “Company”), the world’s first private cord blood bank to separate and store stem cells in 1992, announces it has entered into a purchase contract, with the closing subject to customary conditions, for a newly constructed, 56,000 sq ft facility located in the Regional Commerce Center within the Research Triangle, NC. We anticipate this facility will expand Cryo-Cell’s cryopreservation and cold storage business by introducing a new service, ExtraVault (www.extravault.com). With over 30 years of experience in handling biological specimens for both research and clinical use, Cryo-Cell intends to leverage this expertise and offer these biorepository services to biopharmaceutical companies and healthcare institutions.
The new facility is being constructed to offer state-of-the-art biologics, reagents, vaccine samples and/or entire freezer storage at cost effective prices. A robust inventory management system is planned to be implemented that will allow customers to view their own inventory through a customer portal and place distribution orders online. The staff at ExtraVault have decades of experience storing and distributing cold chain samples nationally and internationally. As a result, it is anticipated ExtraVault will provide expertise, experience, customer electronic access and cost sensitive solutions to our partners in the biopharma and healthcare industries.
About Cryo-Cell International, Inc.
Founded in 1989, Cryo-Cell International, Inc. is the world’s first private cord blood bank. More than 500,000 parents from 87 countries have entrusted Cryo-Cell International with their baby’s cord blood and cord tissue stem cells. In addition to its private bank, Cryo-Cell International has a public banking program in partnership with Duke University. Cryo-Cell’s public bank has provided cord blood for more than 600 transplantations and operates cord blood donation sites across the U.S in prominent hospitals such as Cedars–Sinai Hospital in Los Angeles and Baptist Hospital in Miami. Cryo-Cell’s facility is FDA registered, cGMP-/cGTP-compliant and licensed in all states requiring licensure. Besides being AABB accredited as a cord blood facility, Cryo-Cell was also the first U.S. (for private use only) cord blood bank to receive FACT accreditation for adhering to the most stringent cord blood quality standards set by any internationally recognized, independent accrediting organization. Cryo-Cell has the exclusive rights to PrepaCyte-CB, the industry’s most advanced cord blood processing technology.
Cryo-Cell’s mission is to provide the premier cord blood and cord tissue cryopreservation services, to develop, manufacture and administer cellular therapies to significantly improve the lives of patients worldwide and to offer the highest quality and most cost effective biostorage solutions available. In February 2021, Cryo-Cell entered into a license agreement with Duke University that the Company believes has allowed Cryo-Cell to begin its transformation into an autonomous, vertically integrated cellular therapy company. In March 2022, Cryo-Cell launched ExtraVault to offer its expertise in biostorage and distribution to biopharmaceutical companies and healthcare institutions.
For more information, please visit www.extravault.com.
Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In some cases, you can identify forward-looking statements by terminology such as “will,” “may,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “forecasts,” “potential” or “continue” or the negative of these terms or other comparable terminology. Generally, the words “anticipate,” “believe,” “continue,” “expect,” “intend,” “estimate,” “project,” “plan” and similar expressions identify forward-looking statements. In particular, statements about our expectations, beliefs, plans, objectives, assumptions or future events or performance contain forward-looking statements.
We have based these forward-looking statements on our current expectations, assumptions, estimates and projections. These forward-looking statements involve risks and uncertainties and reflect only our current views, expectations and assumptions with respect to future events and our future performance. If risks or uncertainties materialize or assumptions prove incorrect, actual results or events could differ materially from those expressed or implied by such forward-looking statements. Risks that could cause actual results to differ from those expressed or implied by the forward-looking statements we make include, among others, risks related to: the impact of the COVID-19 pandemic on our sales, operations and supply chain, the success of the Company’s global expansion initiatives and product diversification, including its addition of the ExtraVault services, the Company’s actual future ownership stake in future therapies emerging from its collaborative research partnerships, the success related to its IP portfolio, the Company’s future competitive position in stem cell innovation, future success of its core business and the competitive impact of public cord blood banking on the Company’s business, the success of the Company’s initiative to expand its core business units to include biopharmaceutical manufacturing and operating clinics, the uncertainty of profitability from its biopharmaceutical manufacturing and operating clinics, the Company’s ability to minimize future costs to the Company related to R&D initiatives and collaborations and the success of such initiatives and collaborations and the success and enforceability of the Company’s umbilical cord blood and cord tissue license agreements, together with the associated intellectual property and their ability to provide the Company with royalty fees.
.
This list of risks and uncertainties, however, is only a summary of some of the most important factors and is not intended to be exhaustive. Given these risks and uncertainties, you are cautioned not to place undue reliance on such forward-looking statements. These risks and uncertainties may cause our actual future results to be materially different than those expressed in our forward-looking statements. These forward-looking statements are made only as of the date hereof. Except as otherwise required by applicable law, we do not undertake and expressly disclaim any obligation to update any such statements or to publicly announce the results of any revisions to any such statements to reflect future events or developments. All
subsequent written and oral forward-looking statements attributable to us, or to persons acting on our behalf, are expressly qualified in their entirety by these cautionary statements.