Exhibit 11
| Direct Number: (216) 586-7254 | ||||
| May 18, 2011 | cjhewitt@JonesDay.com |
VIA EMAIL
Ki Yong Choi
36 Great Circle Dr.
Mill Valley, California 94941
36 Great Circle Dr.
Mill Valley, California 94941
Dear Mr. Choi:
The Executive Committee of the Board of Directors of Cryo-Cell International, Inc. (the
“Company”) is in receipt of your letter dated May 9, 2011 (the “May 9 Letter”), wherein you purport
to nominate certain individuals for election to the Board of Directors of the Company at the
Company’s 2011 Annual Meeting of Stockholders (the “2011 Annual Meeting”). On behalf of the
Executive Committee, this letter serves as notice that because the nominations included in the May
9 Letter were not made in accordance with Article II, Section 10 of the Company’s Amended and
Restated Bylaws, the nominations will not be considered at the 2011 Annual Meeting.
Article II, Section 10(b) of the Company’s Amended and Restated Bylaws provides that
“[n]ominations of persons for election as directors of the Company may be made only at an
annual meeting of the shareholders (i) by or at the direction of the Board or (ii) by any
shareholder that is a shareholder of record at the time of giving of notice provided for in this
Section 10.” (emphasis added). Similarly, Article II, Section 10(c) of the Company’s Amended and
Restated Bylaws provides that a shareholder’s notice must set forth or include “a representation
that the shareholder giving the notice is a holder of record of stock of the Company ...” (emphasis
added). In the May 9 Letter, you acknowledge that:
| • | you are “the beneficial holder of shares of common stock of the Company held in [your] brokerage account with Charles Schwab & Co...”; and | ||
| • | “Cede & Co., as the nominee of The Depositary Trust Company, is the holder of record of the shares held in [your] brokerage account.” |
By your own admission, and as verified by the Company’s transfer agent, you were not a
shareholder of record at the time you purported to give notice of your nominations pursuant to the
May 9 Letter. As recently confirmed by the Court of Chancery of Delaware, “beneficial holders are
not record holders.” Kurz v. Holbrook, 989 A.2d 140, 174 (Del. Ch. 2010), aff’d in part and rev’d in
part, Crown EMAK Partners, LLC v. Kurz, 992 A.2d 377 (Del. 2010). Because you were not a
shareholder of record (and because you did not represent yourself to be one) at the time you
purported to give notice of your nominations pursuant to the May 9 Letter, the May 9 Letter does
not comply with the advance notice provisions in Article II, Section 10(b) of the
