Published on December 20, 2007
SICHENZIA
ROSS FRIEDMAN FERENCE LLP
61
BROADWAY, NEW YORK NY 10006
TEL
212 930 9700 FAX 212 930 9725 WEB WWW. SRFF.COM
December
20, 2007
BY
EDGAR AND
FACSIMILE
TRANSMISSION 202-772-9369
Securities
and Exchange Commission
100
F
Street, N.E.
Washington,
D.C. 20549
| Attention: | Brigitte Lippmann, Esq. | |
| Mail Stop 7010 |
|
Re:
|
Cryoport, Inc. (the “Company”) | |
| Registration Statement on Form SB-2 | ||
| File No. 333-147300 (the “Registration Statement”) |
Dear
Ms.
Lippmann:
On
behalf
of the Company, we are hereby enclosing two copies of Amendment No. 2 to the
Company’s registration statement on Form SB-2 (the “Registration Statement”)
that was filed on November 9, 2007.
By
letter
dated December 3, 2007, the staff of the Securities and Exchange Commission
(the
“Staff”) issued comments on the Registration Statement. Following are the
Company’s responses to the Staff’s comments. For ease of reference, each
response is preceded by the Staff’s comment.
General
1. Because
of the nature and size of the transaction being registered, it appears that
the
transaction is not eligible to be made on a shelf basis under Rule 415(a)(1)(i)
and instead appears to represent a primary offering which must be made at a
fixed price. We note your disclosure on page 2 that the number of shares offered
represents 36% of the total shares outstanding, but this percentage is not
based
on the number of shares held by nonaffiliates. If you wish to continue with
the
registration of the shares for the affiliates, please identify these selling
shareholders as underwriters and include a fixed price at which these selling
shareholders will sell the securities or reduce the size of the
offering.
The
Company advises the Staff that, except for a de minimus amount, none of the
Company’s affiliates hold any shares as is evident from the principal
stockholders table on page 38 of the Registration Statement. As a result, 36%
is
the correct percentage. Therefore, the transaction is eligible to be made under
Rule 415 and no revisions are required to be made in response to this
comment.
2. Please
disclose the total dollar value of the securities underlying the convertible
notes that you have registered for resale (using the number of underlying
securities that you have registered for resale and the market price per share
for those securities on the date of the sale of the convertible
notes).
The
Company has made revisions in accordance with the Staff’s comment. See page 1 of
the Registration Statement.
3. Please
provide tabular disclosure regarding payments to the investors and affiliates,
including the dollar amount of each payment (including the value of any payments
to be made in common stock) in connection with the transactions that you have
made or may be required to make to any selling shareholder, any affiliate of
a
selling shareholder, or any person with whom any selling shareholder has a
contractual relationship regarding the transaction (including any interest
payments, liquidated damages, payments made to “finders” or “placement agents,”
and any other payments or potential payments). Please provide footnote
disclosure of the terms of each such payment. Please do not include any
repayment of principal on the convertible notes in this
disclosure.
Further,
please disclose the net proceeds to the issuer from the sale of the convertible
notes and the total possible payments to the selling shareholders and any of
their affiliates in the first year following the sale of convertible
notes.
The
Company has added tabular disclosure in accordance with the Staff’s comment. See
pages 40 and 43 of the Registration Statement.
4. Please
provide tabular disclosure regarding potential profits to the selling
shareholders upon conversion of the notes, including:
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·
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the
total possible profit the selling shareholders could realize as a
result
of the conversion discount for the securities underlying the convertible
notes, presented in a table with the following information disclosed
separately:
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· the
market price per share of the securities underlying the convertible notes
on the
date of the sale of the convertible notes;
· the
conversion price per share of the underlying securities on the date of the
sale
of the convertible notes, calculated as follows:
if
the conversion price per share is set at a fixed price, use the price per share
established in the convertible notes; and
if
the conversion price per share is not set at a fixed price and, instead, is
set
at a floating rate in relationship to the market price of the underlying
security, use the conversion discount rate and the market rate per share on
the
date of the sale of the convertible notes and determine
the conversion price per share as of that date;
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·
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the
total possible shares underlying the convertible notes (assuming
no
interest payments and complete conversion throughout the term of
the
notes);
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·
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the
combined market price of the total number of shares underlying the
convertible notes, calculated by using the market price per share
on the
date of the sale of the convertible notes and the total possible
shares
underlying the convertible
notes;
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·
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the
total possible shares the selling shareholders may receive and the
combined conversion price of the total number of shares underlying
the
convertible notes calculated by using the conversion price on the
date of
the sale of the convertible notes and the total possible number of
shares
the selling shareholder may receive;
and
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·
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the
total possible discount to the market price as of the date of the
sale of
the convertible notes, calculated by subtracting the total conversion
price on the date of the sale of the convertible notes from the combined
market price of the total number of shares underlying the convertible
notes on that date.
|
Since
the conversion price per share is fixed unless and until the market price falls
below a stated price, at which point the conversion price per share drops to
a
lower price, please provide additional tabular disclosure.
The
Company has added tabular disclosure in accordance with the Staff’s comment. See
page 43 of the Registration Statement.
5. Please
provide tabular disclosure, similar to the comment immediately above, regarding
potential profits to the selling shareholders to be received as a result of
any
conversion discounts for securities underlying any other warrants, options,
notes, or other securities of the issuer that are held by the selling
shareholders or any affiliates of the selling
shareholders.
The
Company has added tabular disclosure in accordance with the Staff’s comment. See
page 43 of the Registration Statement.
6. Please
provide tabular disclosure comparing issuer proceeds to potential investor
profit, including each of the following items:
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·
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the
gross proceeds paid or payable to the issuer in the convertible notes
transaction;
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·
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all
payments that have been made or that may be required to be made by
the
issuer that are disclosed in response to Comment
3;
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·
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the
resulting net proceeds to the issuer;
and
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·
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the
combined total possible profit to be realized as a result of any
conversion discounts regarding the securities underlying the convertible
notes and any other warrants, options, notes, or other securities
of the
issuer that are held by the selling shareholders or any affiliates
of the
selling shareholders that is disclosed in response to Comment 4 and
Comment 5.
|
Further,
please provide disclosure —
as
a percentage —
of
the total amount of all possible payments as disclosed in response to Comment
3
and the total possible discount to the market price of the shares underlying
the
convertible notes as disclosed in response to Comment 4 divided by the net
proceeds to the issuer from the sale of the convertible notes, as well as the
amount of that resulting percentage averaged over the term of the convertible
notes.
The
Company has added tabular disclosure in accordance with the Staff’s comment. See
page 45 of the Registration Statement.
7. Please
provide tabular disclosure of all prior securities transactions between the
issuer (or any of its predecessors) and the selling shareholders, any affiliates
of the selling shareholders, or any person with whom any selling shareholder
has
a contractual relationship regarding the transaction (or any predecessors of
those persons), with the table including the following information disclosed
separately for each transaction:
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·
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the
date of the transaction;
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·
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the
number of shares of the class of securities subject to the transaction
that were outstanding prior to the
transaction;
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·
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the
number of shares of the class of securities subject to the transaction
that were outstanding prior to the transaction and held by persons
other
than the selling shareholders, affiliates of the company, or affiliates
of
the selling shareholders;
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·
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the
number of shares of the class of securities subject to the transaction
that were issued or issuable in connection with the
transaction;
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·
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the
percentage of total issued and outstanding securities that were issued
or
issuable in the transaction (assuming full issuance), with the percentage
calculated by taking the number of shares issued and outstanding
prior to
the applicable transaction and held by persons other than the selling
shareholders, affiliates of the company, or affiliates of the selling
shareholders, and dividing that number by the number of shares issued
or
issuable in connection with the applicable
transaction;
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·
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the
market price per share of the class of securities subject to the
transaction immediately prior to the transaction (reverse split adjusted,
if necessary); and
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·
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the
current market price per share of the class of securities subject
to the
transaction (reverse split adjusted, if
necessary).
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The
Company advises the Staff that there were no prior securities transactions
between the selling shareholders and the Company. Therefore, no revisions are
required to be made in response to this comment.
8. Please
provide tabular disclosure comparing the number of shares being registered
to
the number of outstanding shares as follows:
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·
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the
number of shares outstanding prior to the convertible notes transaction
that are held by persons other than the selling shareholders, affiliates
of the company, and affiliates of the selling
shareholders;
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·
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the
number of shares registered for resale by the selling shareholders
or
affiliates of the selling shareholders in prior registration
statements;
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·
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the
number of shares registered for resale by the selling shareholders
or
affiliates of the selling shareholders that continue to be held by
the
selling shareholders or affiliates of the selling
shareholders;
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·
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the
number of shares that have been sold in registered resale transactions
by
the selling shareholders or affiliates of the selling shareholders;
and
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·
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the
number of shares registered for resale on behalf of the selling
shareholders or affiliates of the selling shareholders in the current
transaction.
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In
this analysis, the calculation of the number of outstanding shares should not
include any securities underlying any outstanding convertible securities,
options, or warrants.
The
Company has added tabular disclosure in accordance with the Staff’s comment. See
page 46 of the Registration Statement.
9. Please
provide the following information regarding the company’s intention and ability
to make note payments and the presence or absence of short selling by the
selling shareholders:
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·
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whether
the issuer has the intention, and a reasonable basis to believe that
it
will have the financial ability, to make all payments on the overlying
securities; and
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·
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whether
—
based
on information obtained from the selling shareholders
—
any
of the selling shareholders have an existing short position in the
company’s common stock and, if any of the selling shareholders have any
existing short position in the company’s stock, the following additional
information:
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· the
date on which each such selling shareholder entered into that short position;
and
·
the
relationship of the date on which each such selling shareholder entered into
that short position to the date of the announcement of the convertible note
transaction and the filing of the registration statement (e.g.,
before
or after the announcement of the convertible note transaction, before the
filing
or after the filing of the registration statement,
etc.).
The
Company has made revisions in accordance with the Staff’s comment. Specifically,
the Company has made disclosure with respect to its intention to repay its
obligations under the notes on page 15 of the Registration Statement. Disclosure
respecting short positions is made on page 41 of the Registration
Statement.
10. Please
provide the following information about any relationships between the company
and the selling shareholders:
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·
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a
materially complete description of the relationships and arrangements
that
have existed in the past three years or are to be performed in the
future
between the issuer (or any of its predecessors) and the selling
shareholders, any affiliates of the selling shareholders, or any
person
with whom any selling shareholder has a contractual relationship
regarding
the transaction (or any predecessors of those persons)
—
the
information provided should include, in reasonable detail, a complete
description of the rights and obligations of the parties in connection
with the sale of the convertible notes;
and
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·
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copies
of all agreements between the issuer (or any of its predecessors)
and the
selling shareholders, any affiliates of the selling shareholders,
or any
person with whom any selling shareholder has a contractual relationship
regarding the transaction (or any predecessors of those persons)
in
connection with the sale of the convertible
notes.
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If
it is your view that such a description of the relationships and arrangements
between and among those parties already is presented in the prospectus and
that
all agreements between and/or among those parties are included as exhibits
to
the registration statement, please provide us with confirmation of your view
in
this regard.
The
Company advises the Staff that there are no relationships between the investors
and the Company beyond the ones described in the Registration
Statement.
Prospectus
Summary, page 1
General,
page 1
11. Please
disclose in this section that you have received a going concern opinion from
your auditors.
The
Company has made revisions in accordance with the Staff’s comment. See page 1 of
the Registration Statement.
Recent
Financing, page 1
12. Please
describe the terms of the warrants which you issued to Joseph Stevens &
Company, Inc. and its affiliates. Also explain how you calculated the amount
of
shares you are registering that are issuable upon conversion of the
debentures.
The
Company has added disclosure to give additional details regarding the warrants
issued to Joseph Stevens. In addition, the Company has added disclosure
explaining the basis for the number of shares included for registration. See
page 41 of the Registration Statement.
Selling
Stockholders, page 38
13. With
respect to GunnAllen Financial, please disclose the natural person or persons
who exercise the sole or shared voting and/or dispositive powers with respect
to
the shares to be offered by that stockholder.
The
Company has made revisions in accordance with the Staff’s comment. See page 40
of the Registration Statement.
14. Please
tell us whether any of selling stockholders, other than the persons affiliated
with Joseph Stevens & Company, Inc., are broker-dealers or affiliates of a
broker-dealer. If a selling stockholder is a broker-dealer, the prospectus
should state that the seller is an underwriter. If a selling stockholder is
an
affiliate of a broker-dealer, provide the following representations in the
prospectus: (1) the seller purchased in the ordinary course of business, and
(2)
at the time of the purchase of the securities to be resold, the seller had
no
agreements or understandings, directly or indirectly, with any person to
distribute the securities. If you cannot provide these representations, state
that the seller is an underwriter.
The
Company advises the Staff that other than Joseph Stevens and GunnAllen, none
of
the selling stockholders is a registered broker dealer. GunnAllen received
its
compensation for introducing the Company to Joseph Stevens and is not involved
in any sales efforts related to this offering. Therefore, the Company does
not
believe that that entity is required to be disclosed as an underwriter. The
Company has made additional disclosures relating to these issues on page 40
of
the Registration Statement.
Exhibit
5.1 —Legal Opinion
15. In
the penultimate paragraph, please delete the language “under the laws of the
State of Delaware,” since it implies that the shares will only be fully paid and
non-assessable in Delaware. If counsel qualifies its opinion as to jurisdiction,
counsel must opine on the legality of the securities under the laws of Nevada,
where the company is incorporated.
A
revised
legal opinion has been included as Exhibit 5.1.
Please
contact the undersigned at 212-981-6766 with any questions or comments you
may
have with respect to the foregoing.
Very
truly yours,
Louis A. Brilleman