EX-4.15
Published on April 22, 2011
Exhibit 4.15
WARRANT
THE OFFER AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THOSE
PURCHASABLE UPON EXERCISE OF THE RIGHTS CONTEMPLATED HEREIN HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
CRYOPORT, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance; Certain Definitions. In consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by CryoPort, Inc., a Nevada corporation
(the Company), [INVESTOR] or registered assigns (the Holder) is hereby granted the right to
purchase at any time until 5:00 p.m., New York City time, on February __, 2016,
______________________ (_____) fully paid and nonassessable shares of the Companys Common Stock,
$0.001 par value per share (the Common Stock), at an initial exercise price per share (the
Exercise Price) of $0.77 per share, subject to further adjustment as set forth herein. This
Warrant is being issued pursuant to that certain Securities Purchase Agreement, as amended, and
Registration Rights Agreement, each by and between the Company and the Holder, and each of even
date herewith.
2. Exercise of Warrants.
2.1 Method of Exercise.
| (a) | This Warrant is exercisable in whole or in part at any time and from time to time. Such exercise shall be effectuated by submitting to the Company (either by delivery to the Company or by facsimile transmission as provided in Section 8 hereof) a completed and duly executed Notice of Exercise (substantially in the form attached to this Warrant) as provided in this paragraph. The date such Notice of Exercise is faxed to the Company shall be the Exercise Date, provided that the Holder of this Warrant tenders this Warrant Certificate to the Company within five (5) business days thereafter. The Notice of Exercise shall be executed by the Holder of this Warrant and shall indicate the number of shares then being purchased pursuant to such exercise. Upon surrender of this Warrant Certificate, together with appropriate payment of the Exercise Price for the shares of Common Stock purchased, the Holder shall be entitled to receive a certificate or certificates for the shares of Common Stock so purchased. The Exercise Price shall be paid cash pursuant to Section 2.1(b) below. |
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| (b) | The Exercise Price per share of Common Stock for the shares then being exercised shall be payable in cash or by certified or official bank check. Notwithstanding the foregoing, if, at any time following the date which is six (6) months from the date hereof, the Company does not have an effective registration statement covering the resale of the shares issuable upon exercise of this Warrant at the time a Notice of Exercise is delivered to the Company, the Holder may elect to exercise on cashless basis. Upon such election to effect a cashless exercise, the Holder shall thereby be entitled to receive a number of shares of Common Stock equal to (x) the excess of the Current Market Value (as defined below) over the total cash exercise price of the portion of the Warrant then being exercised, divided by (y) the Market Price of the Common Stock as of the trading day immediately prior to the Exercise Date. For the purposes of this Warrant, the terms (Q) Current Market Value shall be an amount equal to the Market Price of the Common Stock as of the trading day immediately prior to the Exercise Date, multiplied by the number of shares of Common Stock specified in such Notice of Exercise Form, and (R) Market Price of the Common Stock shall be the closing price of the Common Stock as reported by the OTC Bulletin Board, or if listed on a national securities exchange or quoted on an automated quotation service, such national securities exchange or automated quotation service, for the relevant date. If the Common Stock is not then listed on a national stock exchange or quoted on the OTC Bulletin Board or such other quotation system or association, the fair market value of one share of Common Stock as of the date of determination, as determined in good faith by the Board of Directors of the Company and the Holder. If the Common Stock is not then listed on a national securities exchange, the OTC Bulletin Board or such other quotation system or association, the Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder prior to the exercise hereunder as to the fair market value of a share of Common Stock as determined by the Board of Directors of the Company. In the event that the Board of Directors of the Company and the Holder are unable to agree upon the fair market value, the Company and the Holder shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne equally by the Company and the Holder. Such adjustment shall be made successively whenever such a payment date is fixed. | ||
| (c) | The Holder shall be deemed to be the holder of the shares issuable to it in accordance with the provisions of this Section 2.1 on the Exercise Date |
2.2 Limitation on Exercise. Notwithstanding the provisions of this Warrant or the
Securities Purchase Agreement, in no event (except (i) as specifically provided in this Warrant as
an exception to this provision, (ii) while there is outstanding a tender offer for any or all of
the shares of the Companys Common Stock, or (iii) at the Holders option, on at least sixty-five
(65) days advance written notice from the Holder) shall the Holder be entitled to exercise this
Warrant, or shall the Company have the obligation to issue shares upon such exercise of all or any
portion of this Warrant to the extent that, after such exercise the sum of (1) the number of shares
of Common Stock beneficially owned by the Holder and its affiliates (other than shares of
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Common Stock which may be deemed beneficially owned through the ownership of the unexercised
portion of the Warrants or other rights to purchase Common Stock), and (2) the number of shares of
Common Stock issuable upon the exercise of the Warrants with respect to which the determination of
this proviso is being made, would result in beneficial ownership by the Holder and its affiliates
of more than 9.99% of the outstanding shares of Common Stock (after taking into account the shares
to be issued to the Holder upon such exercise). For purposes of the proviso to the immediately
preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended (the 1934 Act), except as otherwise provided in
clause (1) of such sentence. The Holder, by its acceptance of this Warrant, further agrees that if
the Holder transfers or assigns any of the Warrants, such assignment shall be made subject to the
transferees or assignees specific agreement to be bound by the provisions of this Section 2.2 as
if such transferee or assignee were the original Holder hereof.
3. Reservation of Shares. The Company hereby agrees that at all times during the term of
this Warrant there shall be reserved for issuance upon exercise of this Warrant such number of
shares of its Common Stock as shall be required for issuance upon exercise of this Warrant (the
Warrant Shares). The Company agrees that all Warrant Shares issued upon due exercise
of the Warrant shall be, at the time of delivery of the certificates for such Warrant Shares, duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock of the Company.
4. Mutilation or Loss of Warrant. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft
or destruction) receipt of reasonably satisfactory indemnification, and (in the case of mutilation)
upon surrender and cancellation of this Warrant, the Company will execute and deliver a duplicate
Warrant and any such lost, stolen, destroyed or mutilated Warrant shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be entitled to any rights
of a stockholder in the Company, either at law or equity, and the rights of the Holder are limited
to those expressed in this Warrant and are not enforceable against the Company except to the extent
set forth herein.
6. Protection Against Dilution and Other Adjustments.
6.1 Adjustment Mechanism. If an adjustment of the Exercise Price is required pursuant
to this Section 6, the Holder shall be entitled to purchase such number of additional shares of
Common Stock as will cause (i) the total number of shares of Common Stock Holder is entitled to
purchase pursuant to this Warrant, multiplied by (ii) the adjusted Exercise Price per share, to
equal (iii) the dollar amount of the total number of shares of Common Stock Holder is entitled to
purchase before adjustment multiplied by the total Exercise Price immediately before adjustment.
6.2 Dividends; Distributions. If the Company shall, at any time or from time to time
while this Warrant is outstanding, pay a dividend or make a distribution on its Common Stock in
shares of Common Stock, subdivide its outstanding shares of Common Stock into a greater
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number of shares or combine its outstanding shares of Common Stock into a smaller number of shares
or issue by reclassification of its outstanding shares of Common Stock any shares of its capital
stock (including any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then (i) the Exercise Price in effect immediately prior
to the date on which such change shall become effective shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such change and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after giving effect to such change and (ii) the
number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying
the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to the
date on which such change shall become effective by a fraction, the numerator of which is shall be
the Exercise Price in effect immediately prior to the date on which such change shall become
effective and the denominator of which shall be the Exercise Price in effect immediately after
giving effect to such change, calculated in accordance with clause (i) above. Such adjustments
shall be made successively whenever any event listed above shall occur.
6.3. Reorganization; Reclassification; Merger; Consolidation. If any capital
reorganization, reclassification of the capital stock of the Company, consolidation or merger of
the Company with another corporation in which the Company is not the survivor, or sale, transfer or
other disposition of all or substantially all of the Companys assets to another corporation shall
be effected, then, as a condition of such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition, lawful and adequate provision shall be made whereby each
Holder shall thereafter have the right to purchase and receive upon the basis and upon the terms
and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of the Warrant, such shares of stock, securities or assets as would have been
issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the
number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such
reorganization, reclassification, consolidation, merger, sale, transfer or other disposition not
taken place, and in any such case appropriate provision shall be made with respect to the rights
and interests of each Holder to the end that the provisions hereof (including, without limitation,
provision for adjustment of the Exercise Price) shall thereafter be applicable, as nearly
equivalent as may be practicable in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof. The Company shall not effect any such
consolidation, merger, sale, transfer or other disposition unless prior to or simultaneously with
the consummation thereof the successor corporation (if other than the Company) resulting from such
consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other
appropriate corporation or entity shall assume the obligation to deliver to the Holder, at the last
address of the Holder appearing on the books of the Company, such shares of stock, securities or
assets as, in accordance with the foregoing provisions, the Holder may be entitled to purchase, and
the other obligations under this Warrant. The provisions of this Section 6.3 shall similarly apply
to successive reorganizations, reclassifications, consolidations, mergers, sales, transfers or
other dispositions.
6.4 Distributions to Holders of Common Stock. In case the Company shall fix a payment
date for the making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the Company is
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the continuing corporation) of evidences of indebtedness or assets (other than cash dividends or
cash distributions payable out of consolidated earnings or earned surplus or dividends or
distributions referred to in Section 6.2, or subscription rights or warrants), the Exercise Price
to be in effect after such payment date shall be determined by multiplying the Exercise Price in
effect immediately prior to such payment date by a fraction, the numerator of which shall be the
total number of shares of Common Stock outstanding multiplied by the Current Market Value per share
of Common Stock immediately prior to such payment date, less the fair market value (as determined
by the Companys Board of Directors in good faith) of said assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, and the denominator of which shall be the
total number of shares of Common Stock outstanding multiplied by such Current Market Value per
share of Common Stock immediately prior to such payment date.
7. Transfer to Comply with the Securities Act; Registration Rights.
7.1 Transfer. This Warrant has not been registered under the Securities Act of 1933,
as amended, (the Act) and has been issued to the Holder for investment and not with a view to the
distribution of either the Warrant or the Warrant Shares. Except for transfers to officers,
employees and affiliates of the Holder, neither this Warrant nor any of the Warrant Shares or any
other security issued or issuable upon exercise of this Warrant may be sold, transferred, pledged
or hypothecated in the absence of an effective registration statement under the Act relating to
such security or an opinion of counsel satisfactory to the Company that registration is not
required under the Act. Each certificate for the Warrant, the Warrant Shares and any other
security issued or issuable upon exercise of this Warrant shall contain a legend on the face
thereof, in form and substance satisfactory to counsel for the Company, setting forth the
restrictions on transfer contained in this Section.
7.2 Registration Rights. The Holder and any assignee or transferee of the Holder
shall have registration rights as specified in the Registration Rights Agreement.
8 Notices. Any notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telegraphed, sent by facsimile transmission or sent by
certified, registered or express mail, postage pre-paid. Any such notice shall be deemed given
when so delivered personally, telegraphed, telexed or sent by facsimile transmission, or, if
mailed, four days after the date of deposit in the United States mails, as follows:
If to the Company, to:
CryoPort, Inc.
20382 Barents Sea Circle
Lake Forest, California 92630
Attention: Larry G. Stambaugh
Telephone No.: (949) 470-2300
Telecopier No.: (949) 470-2306
20382 Barents Sea Circle
Lake Forest, California 92630
Attention: Larry G. Stambaugh
Telephone No.: (949) 470-2300
Telecopier No.: (949) 470-2306
with a copy to (which copy shall not be deemed notice):
Mark R. Ziebell
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Snell & Wilmer L.L.P.
600 Anton Boulevard
Suite 1400
Costa Mesa, California 92626
Telephone No.: (714) 427-7000
Telecopier No.: (714) 724-7799
600 Anton Boulevard
Suite 1400
Costa Mesa, California 92626
Telephone No.: (714) 427-7000
Telecopier No.: (714) 724-7799
If to the Holder, to:
Such address set forth beside such Holders name on the signature pages to the
Securities Purchase Agreement or such other address as the Holder shall have provided
the Company notice of as the Holders address for notice purposes.
Any party may give notice in accordance with this Section to designate to another address or person
for receipt of notices hereunder.
9. Supplements and Amendments; Whole Agreement. This Warrant may be amended or
supplemented only by an instrument in writing signed by the parties hereto. This Warrant contains
the full understanding of the parties with respect to the subject matter hereof and thereof and
there are no representations, warranties, agreements or understandings other than expressly
contained herein and therein.
10. Governing Law. This Warrant shall be governed by, and construed in accordance with,
the internal laws of the State of New York without regard to the choice of law principles thereof.
Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the
State of New York located in New York County and the United States District Court for the Southern
District of New York for the purpose of any suit, action, proceeding or judgment relating to or
arising out of this Warrant and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party hereto anywhere in
the world by the same methods as are specified for the giving of notices under this Warrant. Each
of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party hereto irrevocably
waives any objection to the laying of venue of any such suit, action or proceeding brought in such
courts and irrevocably waives any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
11. Jury Trial Waiver. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A
TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS WARRANT AND REPRESENTS THAT COUNSEL HAS BEEN
CONSULTED SPECIFICALLY AS TO THIS WAIVER.
12. Counterparts. This Warrant may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
13. Descriptive Headings. Descriptive headings of the several Sections of this
Warrant are inserted for convenience only and shall not control or affect the meaning or
construction of any
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of the provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of _______________, 2011.
| CRYOPORT, INC. | ||||||
| By: | ||||||
| Name: Larry G. Stambaugh | ||||||
| Title: Chief Executive Officer | ||||||
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CRYOPORT, INC.
Exercise Form
Exercise Form
(To be executed by the Holder to purchase
Common Stock pursuant to the Warrant)
Common Stock pursuant to the Warrant)
The undersigned holder of the attached Warrant hereby irrevocably elects to exercise purchase
rights represented by such Warrant for, and to purchase, ___________ shares of Common Stock of
CryoPort, Inc., a Nevada corporation.
The undersigned herewith tenders payment of the Exercise Price for those shares in the amount of
$___________.
The undersigned requests that (1) a certificate for the shares be issued in the name of the
undersigned and (2) if such number of shares is not all of the shares purchasable under this
Warrant, that a new Warrant of like tenor for the balance of the remaining shares purchasable under
this Warrant be issued.
Date: |
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