EMPLOYMENT
AGREEMENT
EMPLOYMENT
AGREEMENT made as of the
1st day of August, 2009 between CryoPort, Inc. ("Company"), a
Nevada corporation, with executive offices at 20382 Barents Sea
Circle, Lake Forest, California 92630, and Larry G. Stambaugh
("Executive"), with offices at 645 Front Street, #314, San Diego,
California 92101.
RECITALS
WHEREAS , the Company wishes to retain the Executive as
Chairman of the Board of Directors, President and Chief Executive
Officer of the Company; and
WHEREAS , the Executive wishes to continue in such
positions, all on the terms and conditions set forth in this
Agreement;
NOW,
THEREFORE , in
consideration of the premises, and for other good and valuable
consideration, the Company and the Executive agree as
follows:
AGREEEMENT
1.
Term of Agreement . This Agreement shall commence
on August 1, 2009 and shall continue in effect until
Executive’s employment is terminated by Company or Executive
("Term") as hereinafter provided.
2.
Position and Duties . Except as may otherwise be
agreed upon between the Company and the Executive, the Company
agrees to employ the Executive, and the Executive agrees to serve
the Company, as Chairman of the Board of Directors, President and
Chief Executive Officer. The Executive shall render such
services to the Company as are customary for such positions and
perform all other services incident thereto. The
Executive shall abide by all Company policies and procedures. At
all times, the Executive shall report directly to the Board of
Directors of the Company. The Executive shall devote
substantially all of his working time and efforts to the business
and affairs of the Company, except for time spent for service on
the boards of directors of other corporations, vacations as defined
in 4.2 below and by Company policy and civic and charitable
activities, and shall represent the Company within its
industry.
3.
Place of Performance . In connection with his
employment by the Company, the Executive shall, except as the
Executive may otherwise agree, perform his principal activities
from offices located in Lake Forest and San Diego, California,
subject to travel reasonably required for the Company's
business.
4.
Compensation and Related Matters .
4.1
Base Salary . During the term, the Company shall
pay to the Executive, in equal installments not less often than
twice per month, a base salary of not less than $360,000.00 per
year and such base salary shall be subject to increase from time to
time based upon recommendations from the Compensation Committee to
the Board of Directors. All amounts payable to the
Executive pursuant to this Agreement shall be paid subject to such
reporting and withholding requirements, if any, as may be imposed
by applicable law and applicable Company policy.
4.2
Vacations and Sick Days . The Executive
shall be eligible for twenty-five (25) days paid time off days a
year and administered in accordance with Company vacation and sick
leave policy.
4.3
Incentive Compensation .
a. The
Executive shall be eligible to receive incentive payments pursuant
to a plan to be prepared by the Company's Board of Directors with
the Executive's participation ("Incentive Plan"). The
parties shall endeavor to establish the initial Incentive Plan at
the earliest practicable time. The Incentive Plan shall
provide that, assuming satisfaction of the performance criteria to
be set forth in the Incentive Plan, the Executive shall be eligible
to earn and receive an annual incentive with respect to each of the
Company's fiscal years during the Term in an amount up to 60% of
the Executive's then current annualized base salary hereunder, such
incentive to be payable within five (5) business days following the
completion of an audit of the Company’s financial statements
for the fiscal year to which the incentive relates by its
independent public accountant. The incentive will be
based upon the annualized base salary for the year in which the
incentive applies.
b. In
the event that the Company, during the period commencing effective
as of March 30, 2009 and continuing to the last day of the Term,
raises an aggregate of $5,000,000 pursuant to equity and/or
convertible debt financings, then Executive shall be entitled to
receive a onetime incentive payment in the amount of
$125,000.
4.4
Benefit Plans and Arrangement . The Executive
shall be entitled to participate in and receive benefits under the
Company's employee benefit plans and arrangements in effect during
the Term. The Company shall pay the cost of the
Executive's health insurance coverage in accordance with the
Company's plans and policies during the Term, notwithstanding
anything to the contrary in such plans and policies.
4.5
Perquisites . During the Term, the Executive
shall be entitled to receive fringe benefits ordinarily and
customarily provided by the Company to its senior
officers.
4.6
Expenses . The Company shall reimburse the
Executive for all normal out-of-pocket expenses related to the
Company's business actually paid or incurred by him in the
performance of his services under this Agreement in accordance with
the Company’s business expense reimburse policy.
4.7
Option Grant . In addition to the previously
awarded warrant for 500,000 shares Common Stock issued to Executive
on December 10, 2008, on October 1, 2009, or sooner if permitted by
debt restrictions, Executive will become entitled to receive, and
the Company's Board of Directors will award to Executive, an
incentive stock option to acquire 670,000 shares of Common Stock of
the Company at the greater of the per share fair market value of
such Common Stock or the current price allowable under Convertible
Debenture Agreements (“Debentures”) entered into by the
Company on September 27, 2007 and May 30, 2008, or if the
Debentures are no longer in force and effect, at the per share fair
market value of Common Stock such stock on the date of the
grant. The right to exercise the stock option will vest
as to 33⅓% of the underlying shares of Common Stock upon
grant, with the remaining underlying shares vesting in equal
installments on the first and second anniversary of the grant
date.
5.
Termination . The Executive's employment
hereunder may be terminated under the following circumstances
(without impairing the Executive's rights under benefit plans and
arrangements and the Company's policies and procedures):
5.1
By the Company Without Cause . The Company may terminate the
Executive’s employment without “cause” (as
hereinafter defined) at any time by delivering to Executive written
notice of its election to terminate his employment not less than
sixty (60) days prior to the effective date of such
termination.
5.2
Termination Upon Death or Permanent Disability
. Executive’s employment shall automatically
terminate upon the death or permanent disability of
Executive. For purposes of this Agreement, "permanent
disability" shall mean the inability to perform services hereunder
for a period of six consecutive months.
5.3
Termination by Company for Cause . The Company
shall have the option to terminate Executive’s employment for
“cause” in the event that Executive (a) pleads guilty
to or is convicted of a felony, (b) engages in grossly negligent
conduct or willful misconduct in connection with the execution of
his duties hereunder which materially and adversely affects the
Company after written notice by the Company to the Executive of the
specific acts that form the basis for the termination, and (c)
materially fails to perform his duties hereunder, provided the
nonperformance continues uncorrected for a period of thirty days
after written notice thereof by the Company to the Executive
specifically identifying the manner in which the Company believes
the Executive has not performed his duties. For purposes
of this Section 5.3, no act, or failure to act, on the Executive's
part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that
his act or omission was in the best interests of the
Company.
5.4
Severance and Health Insurance . If the Company
terminates Executive's employment other than for cause pursuant to
Section 5.3 or Executive terminates his employment pursuant to
Section 5.5, then, upon execution of a general release
substantially in the form of the attached Exhibit A ,
Executive, in lieu of all other remedies and as liquidated damages,
shall be entitled to receive a severance payment equal to (i) six
(6) months’ base sala
