AMENDMENT AGREEMENT
Published on February 3, 2010
Exhibit 4.1.7
AMENDMENT
AGREEMENT
THIS
AMENDMENT AGREEMENT (this “Amendment”) is entered into on
February 1, 2010 (the “Effective Date”) by and among
Cryoport, Inc., a Nevada
corporation (the “Company”), on the one hand,
and Enable Growth Partners LP
(“EGP”), Enable Opportunity Partners LP (“EOP”), Pierce Diversified
Strategy Master Fund LLC, Ena (“Pierce” and, together with EGP
and EOP, the “Enable
Funds”), and BridgePointe Master Fund Ltd. (“BridgePointe,” together with
the Enable Funds, each individually referred to as a “Holder” and collectively as
the “Holders” or the “Investors”), on the other
hand. Capitalized terms not defined in this Amendment shall have the
meanings ascribed to such terms in each of the Securities Purchase Agreements
(each as defined in documents referred to in the recitals incorporated by
reference below), in each of the Debentures (each as defined in documents
referred to in the recitals incorporated by reference below) and in the January
2010 Amendment Agreement (as defined below).
WHEREAS, the Company and the
Holders are parties to that certain Amendment to Debentures and Warrants,
Agreement and Waiver, dated as of January 12, 2010 (the “January 2010 Amendment Agreement”),
pursuant to which, among other things, BridgePointe and Enable Funds each agreed
to convert a portion of the outstanding principal amount of their respective
Debentures equal to the Required Conversion Amount (as defined below) in
exchange for the Conversion Shares; and
WHEREAS, in order to
facilitate the Company’s ability to consummate the Approved Public Offering, the
Holders wish to modify the formula used to calculate the number of securities,
and the type of securities, to be received by each of BridgePointe and the
Enable Funds upon their respective conversions of the Required Conversion
Amount; and
WHEREAS, the Company and the
Holders now desire to amend the terms of the January 2010 Amendment Agreement as
provided herein.
NOW THEREFORE, in
consideration of the mutual promises and agreements contained herein, and
intending to be legally bound hereby, the undersigned parties hereby agree as
follows:
1. Incorporation of Preliminary
Statements. The recitals set forth above by this reference hereto are
hereby incorporated into the January 2010 Amendment Agreement.
2. Amendment to Section
4. Section 4 of the January 2010 Amendment Agreement is hereby
deleted in its entirety and replaced with the following new Section
4:
“4. Conversion and Payment of
Debentures. Provided that the Approved Public Offering has
closed by March 1, 2010, concurrently with the closing of the Approved Public
Offering, (i) the Enable Funds, collectively, shall convert $1,357,215 in
principal amount of the then outstanding principal amount of its Debentures (the
“Required Conversion
Amount”) in exchange for a number of shares of common stock (“Conversion Shares”) determined
by dividing the Required Conversion Amount by the Common Stock Offering Price
(as defined below) and (ii) BridgePointe shall convert an amount of the then
outstanding principal amount of its Debentures equal to the Required Conversion
Amount in exchange for a number of shares of common stock determined by dividing
the Required Conversion Amount by the Common Stock Offering Price (such shares
received by BridgePointe also referred to as the “Conversion
Shares”). “Common Stock Offering Price”
means the price obtained by multiplying the offering price for one unit (as
established by the underwriters and set forth on the cover page of the pricing
prospectus for the Approved Public Offering which will be filed with the
Securities and Exchange Commission immediately prior to the commencement of the
Approved Public Offering) by fifteen sixteenths (15/16) (provided, however, that
the Common Stock Offering Price for purposes of converting the Required
Conversion Amount and the exercise price of the Offering Make-Up Warrants (as
defined below) shall not exceed and shall be capped at $1.00 per share on a
pre-Reverse Stock Split adjusted basis). Provided that the Approved Public
Offering has closed by March 1, 2010, within five (5) business days following
the closing of the Approved Public Offering (the “Payment Deadline”) the Company
shall deliver the Conversion Shares to each Holder and shall pay in cash to each
Holder the unconverted portion of the then outstanding principal amount of such
Holder’s Debenture(s) without penalty or premium (such amount for the Enable
Funds and BridgePointe, respectively, the “Payoff
Amount”). For purposes of clarification, the Payoff Amount for
BridgePointe and the Enable Funds, respectively, as of the date hereof are set
forth in the table below:
|
Investor
Name
|
Outstanding
Principal
Amount
as
of 02/01/2010
|
Required
Conversion
Amount
|
"Payoff
Amount"*
(Outstanding
Principal
Amount
as
of 02/01/10 less
Required
Conversion
Amount)
|
|
BridgePointe
Master Fund Ltd.
|
$3,066,994.71
|
$1,357,215.00
|
$1,709,779.71
|
|
Enable
Funds
|
$2,714,430.00
|
$1,357,215.00
|
$1,357,215.00
|
* subject
to the subtraction of any outstanding principal amount, other than the Required
Conversion Amount, that is converted after February 1, 2010.
The
Conversion Shares shall be free of restrictive legends and trading restrictions
(other than the lock-up contemplated in Section 7 of the January 2010 Amendment
Agreement, as amended) and shall be delivered electronically and otherwise in
accordance with the terms of the Debentures. In the event that the
Company’s transfer agent requires the Conversion Shares to be issued with a
restrictive legend, then, at the time of the Company’s delivery of the
Conversion Shares, the Company’s counsel shall deliver to the
Company’s transfer agent a legal opinion under Rule 144 of the Securities Act of
1933 requesting the removal of such restrictive legend and the Company shall
provide or cause to be provided to the transfer agent any other opinions,
instructions or other items requested by the transfer agent in order for it to
remove any such restrictive legend. Upon each Holder’s receipt of the Conversion
Shares and the Payoff Amount by the Payment Deadline and the satisfaction of all
of the terms and conditions of this Amendment, each Holder acknowledges and
agrees that its Debenture(s) shall be paid in full and the Company shall have no
further obligation thereunder. ”
3. Insertion of Additional
Section. The January 2010 Amendment Agreement is hereby
amended by inserting the following as an additional section to the January 2010
Amendment Agreement, to be numbered as Section 5 thereof, with the existing
Section 5 being renumbered as Section 6, and each succeeding section thereafter
being renumbered and all internal section references updated
accordingly.
“Section
5. Issuance and
Delivery of Offering Make-Up Warrants. The Company shall issue
and deliver to each of BridgePointe and Enable Funds on or before the Payment
Deadline a warrant (the “Offering Make-Up Warrant”) to
purchase a number of shares of common stock equal to the difference between the
number of Reference Shares (as defined below) and the number of Conversion
Shares. The exercise price of the Offering Make-up Warrant shall be
equal to the Common Stock Offering Price, provided that the exercise price of
the Offering Make-Up Warrants shall not exceed and shall be capped at $1.00 per
share on a pre-Reverse Stock Split adjusted basis, and the term of exercise of
the Offering Make-Up Warrant shall be five years from the date of closing of the
Approved Public Offering. The other terms of the Offering Make-Up
Warrants shall be identical to the Warrants (as defined below), as
amended. For purposes hereof, the Reference Shares shall mean
the number of shares determined by dividing the Required Conversion Amount by
$0.45 per share (as adjusted for the Reverse Stock Split). For
purposes of clarification, notwithstanding the completion of the Approved Public
Offering and the issuance of the Offering Make-Up Warrants, each Holder shall
retain and shall not be required to forfeit any of the Warrants of the Company
currently owned by such Holder.”
4. Amendment to Section
7. Section 7 of the January 2010 Amendment Agreement (now
renumbered as Section 8) is hereby deleted in its entirety and replaced with the
following new Section 8:
“Section
8. Adjustment to Warrant
Exercise Price, Deletion of Full-Ratchet Antidilution Protection and Extension
of Term of Warrants. The Termination Date of each Warrant
(other than the Offering Make-Up Warrant) is hereby extended to January 15,
2015. Provided that the Approved Public Offering has closed by March
1, 2010, effective upon the close of the Approved Public Offering, (i) the
Exercise Price (as defined in each of the Warrants) of each of the Warrants (as
“Warrants” is defined in the 2007 Securities Purchase Agreement and the May 2008
Securities Purchase Agreement, respectively, but excluding the Offering Make-Up
Warrants) will be decreased to a price (the “Warrant Reset Price”) equal
to $0.40,
subject to adjustment for the Reverse Stock Split or as otherwise provided
therein, without any change in the number of shares of common stock that then
may be purchased thereunder, (ii) Section 3(b) and the last sentence of Section
3(e) of each Warrant (which relate to dilution protection on subsequent equity
sales afforded to the Holders not otherwise available to all other holders of
the Company’s outstanding common stock and to fundamental transactions,
respectively) shall be deleted in their entirety, and (iii) the Termination Date
of each Warrant (other than the Offering Make-Up Warrant) shall be further
extended to the date which is five (5) years following the date of closing of
the Approved Public Offering.
5. Effect on Transaction
Documents. Subject to the amendment
to the January 2010 Amendment Agreement provided herein, all of the terms and
conditions of the Transaction Documents shall continue in full force and effect
after the execution of this Amendment and shall not be in any way changed,
modified or superseded by the terms set forth herein, including but not limited
to, any other obligations the Company may have to the Investors under the
Transaction Documents, provided however that
references to Securities, Debentures, Warrants and Underlying Shares in the
Transaction Documents shall include such securities, as amended hereby and
issued hereunder, and the shares underlying such Securities,
respectively. Except as expressly set forth herein, this
Amendment shall not be deemed to be a waiver, amendment or modification of any
provisions of the Transaction Documents or of any right, power or remedy of the
Investors, or constitute a waiver of any provision of the Transaction Documents
(except to the extent herein set forth), or any other document, instrument
and/or agreement executed or delivered in connection therewith, in each case
whether arising before or after the date hereof or as a result of performance
hereunder or thereunder. The Investors reserve all rights, remedies,
powers, or privileges available under the Transaction Documents, at law or
otherwise. This Amendment shall not constitute a novation or
satisfaction and accord of the Transaction Documents or any other document,
instrument and/or agreement executed or delivered in connection therewith,
including, without limitation, the Security Agreement.
6. Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be delivered as set forth in the applicable Transaction
Document.
7. Successors and
Assigns. This Amendment shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties and shall inure to
the benefit of the Investors. The Company may not assign (except by merger) its
rights or obligations hereunder without the prior written consent of the
Investors. The Investors may assign their respective rights hereunder
in the manner and to the Persons as permitted under the applicable Transaction
Document.
8. Execution and
Counterparts. This Amendment may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
9. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Amendment shall be determined in
accordance with the provisions of the Transaction Documents.
10.
Severability. If any
term, provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
11. Headings. The
headings in this Amendment are for convenience only, do not constitute a part of
this Amendment and shall not be deemed to limit or affect any of the provisions
hereof.
12.
Representations and
Warranties; Corporate Authority. The Company hereby makes the
representations and warranties set forth below to the Holders that as of the
date of its execution of this Amendment:
(a) The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Amendment and otherwise to
carry out its obligations hereunder and thereunder. The execution and
delivery of this Amendment by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Company and no further action is required by such
Company, its board of directors or its stockholders in connection
therewith. This Amendment has been duly executed by the Company and,
when delivered in accordance with the terms hereof will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) The
execution, delivery and performance of this Amendment by the Company and the
consummation by the Company of the transactions contemplated hereby do not and
will not: (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result
in the creation of any lien upon any of the properties or assets of the Company,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement, credit facility, debt or other material instrument (evidencing
Company debt or otherwise) or other material understanding to which the Company
is a party or by which any property or asset of the Company is bound or
affected, or (iii) conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or
asset of the Company is bound or affected.
(c) No
consideration has been offered or paid to any person to amend or consent to a
waiver, modification, forbearance or otherwise of any provision of any of the
Transaction Documents.
(d) All of
the Company’s warranties and representations contained in this Amendment shall
survive the execution, delivery and acceptance of this Amendment by the parties
hereto.
13. Amendments and
Waivers. No provision of this Amendment may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Holders or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Amendment shall be deemed to be a continuing waiver in the future or a waiver of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such
right.
14. Joint
Preparation. Each of the parties hereto acknowledges that this
Amendment has been prepared jointly by the parties hereto, and shall not be
strictly construed against either party.
15. Amendments Not Effective
Until All Parties Agree. In addition to any other conditions
provided for herein, the amendments herein shall not be effective unless and
until the Company and all of the Holders shall have agreed to the terms and
conditions hereunder.
16. Disclosure and Filing of 8-K. Except with
respect to the material terms and conditions of the transactions contemplated by
this Amendment, the Company confirms that neither it nor any other Person acting
on its behalf has provided any of the Investors or their agents or counsel with
any information that it believes constitutes or might constitute material,
nonpublic information. On or before the second (2nd) Trading Day immediately following the date hereof, the
Company shall file a Current Report on Form 8-K, reasonably acceptable to each
Investor disclosing the material terms of the transaction contemplated hereby,
which shall include this Amendment as an attachment thereto.
17. INDEPENDENT NATURE OF
INVESTORS’ OBLIGATIONS AND RIGHTS. THE COMPANY HAS ELECTED TO
PROVIDE ALL INVESTORS WITH THE SAME TERMS AND FORM OF THIS AMENDMENT FOR THE
CONVENIENCE OF THE COMPANY AND NOT BECAUSE IT WAS REQUIRED OR REQUESTED TO DO SO
BY THE INVESTORS. THE OBLIGATIONS OF EACH INVESTOR UNDER THIS
AMENDMENT, AND ANY TRANSACTION DOCUMENT ARE SEVERAL AND NOT JOINT WITH THE
OBLIGATIONS OF ANY OTHER INVESTOR, AND NO INVESTOR SHALL BE RESPONSIBLE IN ANY
WAY FOR THE PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS OF ANY OTHER
INVESTOR UNDER THIS AMENDMENT OR ANY TRANSACTION DOCUMENT. NOTHING CONTAINED
HEREIN OR IN ANY TRANSACTION DOCUMENT, AND NO ACTION TAKEN BY ANY INVESTOR
PURSUANT THERETO, SHALL BE DEEMED TO CONSTITUTE THE INVESTORS AS A PARTNERSHIP,
AN ASSOCIATION, A JOINT VENTURE OR ANY OTHER KIND OF ENTITY, OR CREATE A
PRESUMPTION THAT THE INVESTORS ARE IN ANY WAY ACTING IN CONCERT OR AS A GROUP
WITH RESPECT TO SUCH OBLIGATIONS OR THE TRANSACTIONS CONTEMPLATED BY THIS
AMENDMENT OR THE TRANSACTION DOCUMENTS. EACH INVESTOR SHALL BE
ENTITLED TO INDEPENDENTLY PROTECT AND ENFORCE ITS RIGHTS, INCLUDING WITHOUT
LIMITATION, THE RIGHTS ARISING OUT OF THIS AMENDMENT OR OUT OF THE OTHER
TRANSACTION DOCUMENTS, AND IT SHALL NOT BE NECESSARY FOR ANY OTHER INVESTOR TO
BE JOINED AS AN ADDITIONAL PARTY IN ANY PROCEEDING FOR SUCH PURPOSE. EACH
INVESTOR HAS BEEN REPRESENTED BY ITS OWN SEPARATE LEGAL COUNSEL IN THEIR REVIEW
AND NEGOTIATION OF THIS AMENDMENT AND THE TRANSACTION DOCUMENTS.
IN WITNESS WHEREOF, the
parties have duly executed this Amendment as of the date first written
above.
CRYOPORT,
INC.
By: /s/ Larry
G. Stambaugh
Name:
Larry G. Stambaugh
Title:
Chief Executive Officer
[signature page of Holders
follows]
Holders’
Signature Page
BRIDGEPOINTE MASTER FUND
LTD.
By: /s/ Eric S. Swartz
Name:
Eric S. Swartz
Title:
Director
ENABLE GROWTH PARTNERS
LP
By: /s/ Mitch Levine
Name:
Mitch Levine
Title:
CEO
ENABLE OPPORTUNITY PARTNERS
LP
By: /s/ Mitch Levine
Name:
Mitch Levine
Title:
CEO
PIERCE DIVERSIFIED STRATEGY MASTER
FUND LLC, ENA
By: /s/ Mitch Levine
Name:
Mitch Levine
Title:
CEO