AMENDMENT TO DEBENTURES,
AGREEMENT AND WAIVER
THIS AMENDMENT TO DEBENTURES, AGREEMENT AND
WAIVER (this “ Agreement ”) is entered into on
August 29, 2008, by and among CryoPort, Inc., a Nevada corporation
(the “ Company ”), and each purchaser identified
on the signature pages hereto (each, including its successors and
assigns, a “ Purchaser ” and collectively
the “ Purchasers ” ).
Capitalized terms not defined in this Agreement
shall have the meanings ascribed to such terms in each of the
Purchase Agreements (each as defined below) or in each of the
Debentures (each as defined below). For purposes
hereof,
“Enable Funds”
shall mean Enable Growth Partners LP
( “EGP” ), Enable Opportunity Partners LP (
“EOP” ) and Pierce Diversified Strategy Master
Fund LLC, Ena ( “Pierce” ).
“September 2007
Purchasers” shall
mean BridgePointe Master Fund Ltd., a Cayman Islands Exempted
Company and the Enable Funds.
RECITALS
WHEREAS, pursuant to a Securities Purchase
Agreement dated September 27, 2007 (the “September 2007
Purchase Agreement ”) by and among the Company and each
of the September 2007 Purchasers, the Company issued to each of the
September 2007 Purchasers an aggregate principal amount equal to
$4,419,397 of the Company’s Original Issue Discount 8% Senior
Secured Convertible Debenture Due February 27, 2010 (the
“September 2007 Debentures ”), and (b)
common stock purchase warrants to purchase an aggregate of
14,431,361 shares of Common Stock, with an exercise price of $0.60
per share;
WHEREAS, the September 2007 Debentures were
amended by the Amendment to Original Issue Discount 8% Senior
Secured Convertible Debentures (the “First September 2007
Amendment” ) dated on or about February 14, 2008 to,
among other things, amend the Maturity Date of the September 2007
Debentures to March 27, 2010.
WHEREAS, pursuant to Section 6(b) of the
September 2007 Debentures, on each Monthly Redemption Date,
beginning on August 1, 2008, the Company is required to redeem the
Monthly Redemption Amount (the “September 2007 Monthly
Redemptions ”);
WHEREAS, pursuant to Section 2 of the September
2007 Debentures, the Company is required to make quarterly interest
payments on each January 1, April 1, July 1 and October
1;
WHEREAS, the Purchasers and the Company agree
that in exchange for the Purchasers’ deferral of certain
interest and principal payments on the September 2007 Debenture,
the Company will increase the principal amount of the September
2007 Debentures.
WHEREAS, it is the intention of the Company and
the Purchasers that the Rule 144 holding period for the September
2007 Debentures, as amended hereby, will tack to, and run from, the
Original Issue Date of the September 2007 Debentures and the Rule
144 holding period for the as allowed under Interpretation 209.14
issued on April 2, 2008 for Rule 144 (d)(3)(ii); and
WHEREAS, the Company and the Purchasers now
desire that the terms of the Debentures and the Warrants be
modified and have entered into this Agreement to document their
agreement regarding such modifications.
AGREEMENT
NOW, THEREFORE, the parties to this Agreement,
for adequate and sufficient consideration, the receipt of which is
hereby acknowledged, do hereby agree as follows:
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Incorporation of Preliminary
Statements . The Recitals
set forth above by this reference hereto are hereby incorporated
into this Agreement.
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Waiver of
Interest Payments . Each September 2007
Purchaser, severally and not jointly with the other September 2007
Purchasers, hereby waives the Company’s obligation to pay the
interest payments which would otherwise be due on October 1, 2008
and January 1, 2009 with respect to the September 2007 Debenture
(collectively, the “September 2007 Waived Interest
Payments” ).
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Amendment to
Monthly Redemption Date of the September 2007
Debentures. The definition of “Monthly Redemption
Date” in Section 1 of the September 2007 Debenture is hereby
deleted and replaced in its entirety with the following:
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“Monthly
Redemption Date” means the 1 st of
each month, commencing immediately upon December 31, 2008, and
terminating upon the full redemption of this Debenture.
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Increase to
Outstanding Principal Amount of Debentures . The outstanding principal amount of
each September 2007 Debenture is hereby increased to an amount
equal to 115% of the sum of (i) the outstanding principal amount of
such September 2007 Debenture immediately prior hereto, plus (ii)
an amount equal to the additional amount of interest that would
have accrued on the September 2007 Debenture from July 1, 2008
through December 31, 2008 (the “New September 2007
Principal Amount” ).
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For the
avoidance of doubt, the New September 2007 Principal Amount for
each New September 2007 Debenture along with the new Monthly
Redemption Amounts for each such debenture are set forth on
Schedule 5 attached hereto. The amounts set forth on
Schedule 5 shall govern absent manifest error.
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Amendment to
Monthly Redemption Amount of the September 2007
Debentures . The definition of “Monthly
Redemption Amount” in Section 1 the September 2007 Debenture
is hereby amended to mean the New September 2007 Principal Amount
(as defined above), divided by sixteen (16) ,
plus accrued but unpaid interest, liquidated damages and any other
amounts then owing to the Holder in respect of this
Debenture. The new Monthly Redemption Amount for each of
the Purchasers, respectively, is set forth on Schedule 5 attached
hereto.
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Tolling of
Interest Accrual . In consideration of the terms
hereof, no interest shall accrue on the September 2007 Debentures
after July 1, 2008 until January 1, 2008, at which time interest
shall commence to accrue on the Amended September 2007 Debentures
in accordance with their terms.
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Exempt
Issuance. Each Purchaser,
severally and not jointly with the other Purchasers, hereby agrees
that the issuance by the Company of the New Securities shall
constitute an “Exempt Issuance” pursuant to the
Purchase Agreement.
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Waiver . To the extent any of the above described
actions or issuances would constitute an Event of Default under the
Debentures, each Purchaser hereby waives any such Events of Default
relating solely to the actions or issuances set forth in this
Agreement and each Purchaser hereby withdraws any notice or demand
to the contrary.
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Representations and Warranties of the
Company . The
Company hereby makes to the Purchasers the following
representations and warranties:
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Authorization; Enforcement
. The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement
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 the Company and no further action is required
by the Company, its board of directors or its stockholders in
connection therewith. This Agreement 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.
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Issuance of
the Securities . The Securities are duly authorized
and duly and validly issued, fully paid and nonassessable, free and
clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction
Documents. The shares underlying the Securities, when
issued in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, free and clear of all
Liens imposed by the Company other than restrictions on transfer
provided for in the Transaction Documents. The Company
has reserved from its d
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