EX-10.34
Published on April 1, 2011
Exhibit 10.34
SELLING AGENCY AGREEMENT
FOR CRYOPORT, INC. COMMON STOCK AND WARRANTS
FOR CRYOPORT, INC. COMMON STOCK AND WARRANTS
This Selling Agency Agreement is entered into by and between CRYOPORT, INC., a Nevada
corporation (the Company), and EMERGENT FINANCIAL GROUP, INC. (the Selling Agent) as of
February 4, 2011.
1. DESCRIPTION OF OFFERING. The Company proposes to issue in a private placement to
accredited investors only (the Investors) units consisting of a share of the Companys common
stock and a warrant to purchase an additional share of such stock (the Securities). The offering
price for the Units will be $0.70 per Unit and the exercise price for the warrant will be $0.77 per
share. The Company contemplates an aggregate of approximately $7,500,000 of the Securities being
offered (the Offering). The Company is subject to certain obligations to provide notice to prior
subscribers for shares of common stock and warrants issued by the Company of this Offering so that
such prior investors (the Rights Holders) may elect to acquire Units upon the same terms as is
contemplated in this Offering. In the event that aggregate subscriptions for the Offering and the
exercise by the Rights Holders results in the tender of aggregate gross combined proceeds to the
Company in excess of $8,000,000, the Company may decline to accept such excess proceeds and the
declination shall be proportionately assigned to the subscriptions in this Offering and the
exercise by the Rights Holders. With respect to the Rights Holders, the declination shall be made
on a prorata basis with respect to the exercise of the rights. With respect to the declination
allocated to subscriptions in the Offering, the Selling Agent shall allocate it among the
subscribers in any manner in which the Selling Agent shall determine.
2. APPOINTMENT OF AGENT. On the basis of the warranties, representations and
agreements of the parties hereto, and the satisfaction of the conditions set forth herein, the
Company hereby appoints the Selling Agent, and the Selling Agent hereby accepts such appointment,
to act as the Companys agent in connection with the offer and sale of the Securities, on a best
efforts basis, which appointment will be for the period set forth in Section 6 below. The Selling
Agent will use its best efforts to solicit the subscription for the Securities from investors who
are accredited investors. Notwithstanding the foregoing, in the event that the Selling Agent has
been unable to secure subscriptions from Investors for a minimum of $2,000,000 by January 31, 2011,
the Company reserves the right, in its sole and absolute discretion, to appoint one or more
additional selling agents in connection with the Offering.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants
to the Selling Agent as follows:
(a) The Company has provided to the Selling Agent a Confidential Offering Term Sheet (the
Term Sheet) with respect to the Offering together with
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subscription documents for subscription of the Securities (such Term Sheet, subscription
documents and the publicly available reports regarding the Company filed with the Securities and
Exchange Commission are referred to herein as the Offering Documents) for an offering under Rule
506 to purchasers that are all accredited investors within the meaning of Regulation D under the
Securities Act of 1933 (the Act). The Company will also prepare and, subject to prior review by
the Selling Agents legal counsel, file a Form D and all other documents required to comply with
applicable exemptions from federal registration and state blue sky qualification with the
Securities and Exchange Commission and blue sky authorities of such states as may be requested by
the Selling Agent. The Offering Documents and Form D will be subject to the Selling Agents
approval.
(b) As of the Commencement Date of the solicitation (as defined in Section 6 below) and until
and as of the date of each Closing (as hereinafter defined), the Offering Documents will (i)
contain all material statements which are required to be made therein in accordance with the Act
and the Rules and Regulations for an offering under Rule 506 to purchasers that are all accredited
investors within the meaning of Regulation D; (ii) in all material respects conform to the
applicable requirements of the Act and of the Rules and Regulations adopted under the Act (the
Rules and Regulations) for an offering under Rule 506 to purchasers that are all accredited
investors within the meaning of Regulation D; and (iii) not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that the representations and warranties in this
paragraph shall not apply to statements or omissions made in reliance upon written information
furnished to the Company by the Selling Agent expressly for use in preparation of the Offering
Documents.
(c) The Company is duly organized and validly existing as a corporation in good standing under
the laws of the State of Nevada, with full power and authority to own its properties and conduct
its business, as described herein and in the Memorandum.
(d) The Company is duly qualified to do business as a foreign entity and is in good standing
in all states or jurisdictions in which the ownership or lease of its property or the conduct of
its business requires such qualification and the failure to be so qualified would have a materially
adverse effect on the Companys business.
(e) The Company has full legal power, right and authority to enter into this Agreement. This
Agreement has been duly authorized, executed and delivered on behalf of the Company and it is the
valid and binding obligation of the Company, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally,
to the exercise of judicial discretion as to the availability of equitable remedies such as
specific performance and injunction and subject, as to enforcement of the indemnification
provisions, to limitations under applicable securities laws.
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(f) Except as is set forth in the Offering Documents, the Company has all licenses,
certificates, permits and other approvals from governmental authorities necessary for the conduct
of its business as it is currently being carried on and as is described in the Memorandum, except
those which would not have a material adverse effect on the Company if not obtained.
(g) Except as described in the Offering Documents, on the date of each Closing, the Company
will own or possess all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses, inventions, trade
secrets and rights necessary for the conduct of its business as it is currently being carried on
and as is anticipated being carried on, except those which would not have a material adverse effect
on the business of the Company if not obtained, and has not received any notice of conflict with
the asserted rights of others in respect thereof. Except as described in the Offering Documents,
to the best of the Companys knowledge after due inquiry previously performed in the ordinary
course of business, no name which the Company uses and no other aspect of the business of the
Company involves or gives rise to any infringement of, or license or similar fees for, any patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, inventions, trade secrets or other similar rights of others.
(h) Since the respective dates as of which information is given in the Offering Documents and
other than as herein or therein contemplated (i) the Company has not incurred any material
liabilities or obligations, contingent or otherwise, not in the ordinary course of business, (ii)
the Company has not paid or declared any dividend or other distribution with respect to its
outstanding equity interests, (iii) there has not been any change in the capitalization or any
material increase in the long-term debt of the Company, or any issuance of equity interests in the
Company or of options, warrants, or rights to purchase capital stock of the Company, with the
exception of warrants or S-8 shares issued in lieu of cash payments, for services, bonuses or as
part of compensation to board members, advisory board members, key employees, consultants and
employees of consultants, prior equity investors and senior debt holders as principle or interest
payments, (iv) no material loss or damage (whether or not insured) to the property of the Company
has been sustained, (v) no material legal or governmental proceeding, domestic or foreign,
affecting the Company or the transactions contemplated by this Agreement as been instituted or
threatened; and (vi) there has not been any material adverse change in the business, condition
(financial and other) or properties of the Company.
(i) The Company is not in breach, default or violation of, and the consummation of the
transactions contemplated will not result in any breach of, any of the terms or conditions of, or
constitute a default or violation under, (i) the articles of incorporation, bylaws or other
governing organizational of the Company, (ii) any material indenture, agreement or other instrument
to which the Company is now a party,
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or, (iii) except for such breaches, defaults or violations which would not have a material
adverse effect on the Company, any law or any order, rule or regulation applicable to the Company
of any court or of any federal or state regulatory body or administrative agency having
jurisdiction over the Company or its property.
(j) No approval, authorization, consent or order of any governmental or public board or body,
other than in connection with or in compliance with the provisions of the Act and the securities
laws of various jurisdictions, is legally required for the sale of the Securities by the Company.
(k) Except as described in the Offering Documents, there are no pending, threatened or
contemplated actions, suits or proceedings before or by any court or governmental agency, authority
or body, or any arbitrator to which the Company is a party or of which the business or property of
the Company is subject, which are not ordinary, routine and incidental to the business of the
Company or which might result in any material adverse change in the business condition (financial
and other) or properties of the Company.
(l) As of the date hereof, the authorized capitalization of the Company consists of
250,000,000 shares of common stock. As of the date hereof the issued and outstanding
capitalization of the Company consists of 13,682,673 shares of common stock. All outstanding
securities of the Company have been duly authorized, validly issued and fully paid and are
non-assessable and have been issued pursuant to valid exemptions from the registration requirements
of the Act and appropriate state blue sky laws. The capitalization of the Company conforms to the
description thereof contained under the Offering Documents. The Company will immediately notify
the Selling Agent in writing of any changes to the information set forth above.
(m) Except as described in the Offering Documents or as contemplated thereby, there are (i) no
other outstanding warrants, options, convertible securities, rights to subscribe for or purchase
any capital or other securities from the Company, (ii) so far as known to the Company, no voting
trusts or voting agreements among, or irrevocable proxies executed by, shareholders of the Company,
(iii) no existing rights of any person or shareholder to require the Company to register any
securities of the Company or to participate with the Company in any registration by the Company of
its common stock; (iv) so far as known to the Company, no agreement among shareholders of the
Company providing for the purchase or sale of common stock of the Company, and (v) no obligations
(contingent or otherwise) of the Company to purchase, redeem, or otherwise acquire common stock of
the Company or any interest therein or pay any dividend or make any other distribution in respect
thereof.
(n) The Company has good and marketable title, free and clear of all liens, encumbrances and
equities, and of all charges or claims, to all of the real and personal property owned by it,
except as described in the Offering Documents and except
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liens, encumbrances and equities, and charges or claims, which are not material in the
aggregate and do not materially affect the value of such property or interfere with the conduct of
its business. Except as stated in the Offering Documents, the Company has valid and binding leases
to all of the real and personal property described in the Offering Documents as under lease to it
with such exceptions as do not materially interfere with the conduct of its business.
(o) The Company has filed all necessary federal, state, and foreign income and franchise tax
returns and has paid all taxes shown as due thereon, and the Company has received no notice of any
material tax deficiency that has been asserted against the Company.
(p) The Company has all requisite power and authority to issue, sell and deliver the
Securities. The Company has duly taken all required action for the due and proper authorization,
issuance, sale and delivery of such shares. No preemptive rights of shareholders of the Company
exist with respect to the issuance and sale of shares by the Company. No security holder of the
Company possesses any registration rights, except as described in the Offering Documents.
(q) The Company has no subsidiaries, with the exception of CryoPort Systems, Inc., its
operating company, which is wholly owned, and is not affiliated, with any other company or business
entity, except as explicitly stated in the Offering Documents.
(r) The historical financial statements of the Company, together with the related schedules
and notes, set forth in the Offering Documents, fairly present the financial position and the
results of operations of the Company at the respective dates and for the respective periods to
which they apply. All historical financial statements of the Company set forth in the Offering
Documents have been prepared in accordance with generally accepted accounting principles,
consistently applied throughout the periods indicated, except as may be otherwise stated therein
and except as the financial statements for the interim periods are subject to year-end adjustments.
(s) Except as disclosed in the Offering Documents and for the rights of the Selling Agent as
set forth in this Agreement, no person is entitled, directly or indirectly, to compensation from
the Company or the Selling Agent for services as a finder in connection with the transactions
contemplated by this Agreement.
(t) No labor disturbance by the employees of the Company exists or, to the Companys
knowledge, is imminent which could reasonably be expected to have a material adverse effect on the
conduct of the business, operations, financial condition or income of the Company.
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(u) The Company has no defined benefit pension plan or other plan promulgated pursuant to, or
which is intended to comply with the provisions of, the Employee Retirement Income Security Act of
1974, except as disclosed in the Offering Documents.
(v) The Company maintains insurance, which is in full force and effect, of the types and in
the amounts adequate for its business and in line with the insurance maintained by similar
companies and businesses.
(w) The Company has not sold any securities in violation of the Act or any state securities
laws and the Company has not engaged in any general advertising or solicitation (as such term is
interpreted under the Act) in connection with the Offering.
(x) Subject to the Selling Agents compliance with applicable securities laws, the offer,
sale, issuance and delivery of the Securities are or will be in compliance with the requirements
for the use of Rule 506 of Regulation D promulgated under the Act for an offering to purchasers
that are all accredited investors within the meaning of Regulation D and exempt from the
registration and prospectus delivery requirements of the Act.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and agrees as follows:
(a) The Company will promptly deliver to the Selling Agent and its counsel copies of the
Offering Documents and each amendment or supplement thereto. The Selling Agent is authorized on
behalf of the Company to use and distribute copies of the Offering Documents in connection with the
solicitation of the Subscriptions in the Offering as, and to the extent, permitted by federal and
applicable state securities laws.
(b) The Company will promptly notify the Selling Agent, by telephone and in writing of (i) the
issuance of any stop order suspending the sale of the Securities, or of the institution or notice
of intended institution of any action or proceeding for that purpose, and (ii) any other
communication directed to the Company by any public authority relating to the possible suspension
of the qualification of the offer and sale of the Securities in any state.
(c) Until the Termination Date, if any event relating to or affecting the Company, or of which
the Company shall be advised in writing by the Selling Agent, shall occur as a result of which it
is necessary, in the opinion of counsel for the Company or the Selling Agent, to supplement or
amend the Offering Documents in order to make the Offering Documents not misleading in light of the
circumstances existing at the time it is delivered to a potential purchaser of the Securities, the
company will forthwith prepare an amended or supplemented Offering Documents (in form satisfactory
to counsel for the Selling Agent) so that the amended or supplemented Offering Documents
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will not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances existing at
the time the Offering Documents are so amended or supplemented, not misleading.
(d) The Company shall pay, or cause to be paid, all expenses incident to the performance of
its obligations under this Agreement, including, but not limited to, all expenses incident to the
delivery of the Securities, the fees and expenses of counsel and accountants for the Company, the
cost of filing the Form D and amendments thereto, and the cost of all blue sky compliance and
filings.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING AGENT. The Selling Agent
hereby represents and warrants to the Company as follows:
(a) The Selling Agent is a member in good standing of the Financial Industry Regulatory
Authority (FINRA) and will maintain such good standing status during the term of this Agreement.
No proceedings are pending or, to the best of the Selling Agents knowledge, threatened that, in
any way, may revoke or limit the Selling Agents authority to commence the Offering, including, but
not limited to, any proceedings or actions by FINRA, the Securities and Exchange Commission, the
Minnesota Department of Commerce or any other applicable state blue sky authorities.
(b) The Selling Agent is a licensed broker-dealer in good standing under the Securities
Exchange Act of 1934 and the rules and regulations promulgated thereunder, and the laws and
regulations of Minnesota and such other states where the Securities may be offered or sold by the
Selling Agent and the Company will not be disqualified from relying on Rule 505 of Regulation D by
reason of the application of Rule 505(b)(2)(iii) to the Offering due to any act or omission of the
Selling Agent or any of its directors, officers or employees. The representatives employed by or
contracting with the Selling Agent are duly licensed by FINRA, and are duly licensed in each of the
states in which offers, offers for sale, or sales of the Securities will be made.
(c) The Selling Agent will not solicit subscriptions by any form of general solicitation or
general advertising within the meaning of Rule 502(c) or Regulation D and will not solicit
subscriptions, other than on the basis of the Offering Documents. The Selling Agent acknowledges
that its solicitation efforts are to be directed to holders the Selling Agent believes are
accredited investors, as defined in Rule 501 of Regulation D.
(d) The Selling Agent agrees to provide to each person or investor solicited by the Selling
Agent a copy of the Term Sheet. Each person or investor solicited by the Selling Agent is aware of
the general range of compensation that Selling Agent receives in offerings similar to this
Offering. In connection with the Offering, the
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Selling Agent will not use any solicitation material other than the Offering Documents and
will not represent to any person or investor any material facts relating to the Offering, the
Company or the business of the Company, including its future prospects, unless such facts are
contained in the Offering Documents or have been provided to the Selling Agent in writing by the
Company specifically for such purpose.
(e) The Selling Agent has full power, right and authority to enter into this Agreement, this
Agreement has been duly authorized, executed and delivered by the Selling Agent and it is the valid
and binding obligation of the Selling Agent, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally,
to the exercise of judicial discretion as to the availability of equitable remedies such as
specific performance and injunction, and subject, as to enforcement of the indemnification
provisions, to limitations under applicable securities laws.
6. SOLICITATION PERIOD. Subject to applicable law, the Selling Agent shall commence
the solicitation of prospective investors as soon as is reasonably practicable following the date
on which the Term Sheet is approved for release to potential investors by both parties to this
Agreement (the Commencement Date) and, unless otherwise terminated hereunder, shall continue to
solicit such exercise until the February 14, 2011.
7. DELIVERY, PAYMENT AND CLOSING.
(a) The Selling Agent shall require the subscribers in the Offering to complete the
subscription documentation supplied for that purpose by the Company.
(b) All proceeds form the sale of the Securities shall be deposited with an escrow agent
pursuant to the terms of a proceeds escrow agreement among such escrow agent, the Company and the
Selling Agent pending delivery to the Company upon acceptance of the subscription by the Company in
one or more closings or return to the subscriber if the subscription is not accepted.
(c) The Company shall promptly deliver stock certificates and Warrants to the subscribers
solicited by Selling Agent promptly following each closing and provide to Selling Agent copies of
such certificates and Warrants and the transmittal to the subscriber.
8. SOLICITATION COMPENSATION.
(a) The Selling Agent shall receive from the Company ten percent (10%) of the gross proceeds
received from the acceptance of subscriptions solicited by Selling Agent as a compensation for
acting as selling agent. The Company also agrees to pay the Selling Agent a corporate finance fee
payable in cash upon at the end of the
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Offering equal to three percent (3%) of the gross proceeds received by the Company from
Investors solicited by the Selling Agent. Such compensation is to be due and payable by CryoPort
to the Selling Agent in immediately available funds upon the acceptance of the subscription.
(b) Promptly following the completion of the Offering, the Selling Agent (or its designees)
shall receive a warrant to purchase a number of shares of the Company equal to ten percent (10%) of
the aggregate number of shares sold or purchasable upon exercise of the Warrant included in the
Securities with respect to subscriptions solicited by the Selling Agent in the Offering. Such
warrant shall have a term of expiring five years following issuance, provide an exercise price per
share equal to the exercise price of the Warrant included in the Securities and include a cashless
exercise provision. The Company acknowledges that the Selling Agent will in the future transfer
the warrant granted to it pursuant to the terms hereof to its various brokers that participated in
the Offering. The Company hereby agrees, to the extent permitted by applicable law, to permit the
transfer of such warrant to such brokers by the Selling Agent and to work with the Selling Agent in
facilitating such transfer.
(c) The Company shall also reimburse the Selling Agent for the costs incurred by the Selling
Agent for legal fees and expenses related to the Offering, including the preparation of this
Agreement. Such reimbursement shall not exceed the sum of $5,000 and shall be made promptly after
submission by the Selling Agent to the Company of evidence of the expense.
(d) The Company and the Selling Agent do not contemplate that the Selling Agent will engage in
any solicitation of the Rights Holders. Accordingly, absent an express modification of this
Agreement, the Selling Agent will not receive any compensation with respect to the acquisition of
shares or warrants by such Rights Holders pursuant to their exercise of their rights.
9. INDEMNIFICATION.
(a) The Company (to the extent that it is not limited by judgment of a proper court of law
under the Act) shall indemnify and hold harmless the Selling Agent, and each person who controls
(as such term is defined by Rule 405 under the Act) the Selling Agent within the meaning of the
Act, against any losses, claims, damages or liabilities, joint and several, to which the Selling
Agent or such controlling persons may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact contained in the
Offering Documents, or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) any inaccuracy in, or breach of,
the representations and warranties of the Company contained herein or
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any failure of the Company to perform its obligations hereunder or under law; and the Company
will reimburse the Selling Agent and each such controlling person for any legal or other expenses
reasonably incurred by such Selling Agent or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action, as incurred;
provided, however, that the Company will not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by the Selling Agent specifically fur use in the
preparation of the Offering Documents or any additions or supplements thereto. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
The foregoing indemnity agreement is subject to the condition that, insofar as it relates to
any untrue statement, alleged untrue statement, omission or alleged omission made in any form of
the Offering Documents but eliminated or remedied by amendment or supplement to the Offering
Documents, such indemnity agreement shall not inure to the benefit of the Selling Agent or each
such controlling person with respect to any loss, liability, claim or damage asserted by any person
who purchased the Securities which are the subject thereof, if the Offering Documents was so
amended or supplemented prior to such acceptance of the subscription.
(b) The Selling Agent (to the extent that it is not limited by judgment of a proper court of
law under the Act), will indemnify and hold harmless the Company, each person who controls (as such
term is defined under Rule 405 under the Act) the Company within the meaning of the Act, each of
its directors, and each of its officers, against any losses, claims, damages or liabilities, joint
and several, to which the Company, any such controlling person, director or officer may become
subject under the act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Documents, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission is made in the Offering Documents, in reliance upon and in conformity with written
information furnished to the Company by the Selling Agent specifically for use in the preparation
thereof; and the Selling Agent will reimburse the company, any such controlling person, director or
office for any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, as incurred. This indemnity
agreement will be in addition to any liability which the Selling Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in
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respect thereof is to be made against any indemnifying party under the Section, notify each
indemnifying party in writing of the commencement thereof. The indemnification provided for in
this Section 9 shall not be available to any party who fails to so notify each indemnifying party
to the extent that the indemnifying party to whom notification was not given was unaware of the
action to which the notification would have related and was prejudiced by the failure to notify;
provided, however, that the omission to so notify each indemnifying party will not relieve any
indemnifying party from any liability which it may have to any indemnified party otherwise than
under this section. In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled
to participate in, and, to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel chosen by the indemnifying party
and reasonably satisfactory to the indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, and selection of
counsel satisfactory to the indemnified party, the indemnifying party shall not be liable to such
indemnified party under this section/ for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation.
(d) As an interim measure during the pendency of any claim, action, investigation, inquiry or
other proceeding as to which indemnification hereunder is sought, the Company will reimburse the
Selling Agent on a monthly basis for all reasonable legal fees or other expenses incurred in
connection with investigating or defending any such claim, action, investigation, inquiry or other
proceeding, notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Companys obligation to reimburse the Selling Agent for such expenses and the
possibility that such payments might later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is ultimately held to have
been improper, the Selling Agent shall promptly return it to the party or parties that made such
payment, together with interest, compounded daily, determined on the basis of the base rate (or
other commercial lending rate for borrowers of the highest credit standing) announced from time to
time by Wells Fargo Bank (Prime Rate). Any such interim reimbursement payments which are not
made to the Selling Agent within 30 days of a request for reimbursement shall bear interest at the
Prime Rate from the date of such request.
(e) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in Sections 9(a) or 9(b) is for any reason held, by a court of
competent jurisdiction, to be unenforceable as to any party entitled to indemnity, the Company and
the Selling Agent, or any controlling person of the foregoing, shall contribute to the aggregate
losses, claims, damages and liabilities (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding
or any claims asserted) to
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which the Company and the Selling Agent, or any controlling person of the foregoing, may be
subject (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Selling Agent on the other form the offering contemplated hereby
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and of the Selling Agent on the
other in connection with the statements or omissions which resulted in such loss, claim, damage,
liability or expense, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Selling Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total sales commissions received by the Selling
Agent. The relative fault of the Company, on the one hand, and of the Selling Agent on the other
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Selling Agent and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation or guilty of misstating or misrepresenting a
material fact or failing to state a material fact shall be entitled to contribution, as to any
liability arising from such fraudulent misrepresentation or omission, from any person who was not
guilty of such fraudulent or other misrepresentation or omission.
10. TERMINATION. The Selling Agent shall have the right to terminate its obligations
under this Agreement by giving the Company notice as hereinafter specified at any time on or prior
to the termination of the Offering if the Company shall have failed, refused or been unable to
perform any agreement on its part to be performed, if there shall have been a breach of any
warranty or representation of the Company contained herein, or because any other conditions of the
Selling Agents obligations set forth herein are not fulfilled. The Company shall have the right
to terminate this Agreement by giving the Selling Agent notice as hereinafter specified at any time
on or prior to termination of the Offering if the Selling Agent shall have failed, refused or been
unable to perform any agreement on its part to be performed, if there shall have been a breach of
any warranty or representation of the Selling Agent contained herein, or because any other
conditions of the Companys obligations set forth herein are not fulfilled. Except as provided in
Section 11, any such termination shall be without liability of any party to any other party.
11. REPRESENTATIONS AND AGREEMENTS TO SURVIVE. The respective covenants, agreements,
representations and warranties of the Company and the Selling Agent hereunder, as set forth in, or
made pursuant to this Agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any such party or any of its directors or officers or any
controlling person, and shall survive
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delivery of and payment for the Securities. The obligation to pay the compensation and
expense reimbursement provided for in Section 8, the expense payment provisions contained in
Section 4(d), the indemnification and contribution agreements contained in Section 9 and this
Section 11 shall also survive any termination of this Agreement.
12. NOTICES. Except as otherwise expressly provided in this Agreement or duly noticed
hereunder, all notices and other communications hereunder shall be in writing and, if given to the
Selling Agent, shall be mailed, delivered or faxed and confirmed to Emergent Financial Group, Inc.,
Attention: Carlene Cooke and to the Company at the addresses set forth on the signature page
hereof.
13. MISCELLANEOUS. This Agreement shall inure to the benefit of and be binding upon
the successors of the Selling Agent and of the Company. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person or corporation, other than the
parties hereto and their successors, and the controlling persons and directors and officers
referred to in Section 9, any legal or equitable right, remedy or claim under or in respect to this
Agreement or any provision hereof. The term successors shall not include any purchaser of the
Securities merely by reason of such purchase. No subrogee of a benefited party shall be entitled
to any benefits hereunder. This Agreement embodies the entire agreement and understanding of the
parties hereto in respect of the matters contemplated by this Agreement and supersedes all prior
and contemporaneous agreements and understandings between the parties with respect to the matters
contemplated by this Agreement. This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota, without regard to such states choice of laws provisions.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| CRYOPORT, INC. | ||||||
| By: |
|
|||||
| Name: | Larry G. Stambaugh | |||||
| Title: | Chief Executive Officer | |||||
| Address: | 20382 Barents Sea Circle | |||
| Lake Forest, CA 92630 | ||||
| With copy to: Mark Ziebell | ||||
| Snell & Wilmer L.L.P. | ||||
| 600 Anton Boulevard | ||||
| Suite 1400 | ||||
| Costa Mesa, CA 92626 | ||||
| EMERGENT FINANCIAL GROUP, INC. | ||||||
| By: |
|
|||||
| Name: | Peter Voldness | |||||
| Title: | Chief Executive Officer | |||||
| Address: | 3600 American Boulevard West | |||
| Suite 670 | ||||
| Bloomington, MN 55431 |
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