Exhibit
10.15
CONSENT, WAIVER AND
AGREEMENT
This Consent and Waiver Agreement
(“ Agreement ”) is entered into as of the
30th day of July, 2009 (the “ Effective
Date ”), by and among CryoPort, Inc., a Nevada
corporation (the “ Company” ) and the
Company's subsidiary CryoPort Systems, Inc., a California
corporation (“ CSI ”), 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 ” ), on the other hand.
Capitalized terms not defined in this Agreement shall have the
meanings ascribed to such terms in or incorporated by reference in
the February 2009 Amendment Agreement (as defined
below).
RECITALS:
A. The
Company, CSI and the Holders are parties to that certain Amendment
to Debentures and Warrants, Agreement and Waiver entered into on
February 19, 2009, and effective as of January 27, 2009 (the
“ February 2009 Amendment
Agreement ”).
B. All
recitals contained in the February 2009 Amendment Agreement are
hereby incorporated into this Agreement by this
reference.
C. From
March 30, 2009 to the date of this Agreement, the Company has
issued and sold to investors convertible promissory notes with an
approximate aggregate principal balance of $1,156,500 (the
“Existing Bridge Notes ”)
and common stock purchase warrants to purchase an aggregate of
approximately 454,000 shares of the Company’s common stock
(the “ Existing Bridge Warrants
”). The purchase agreement and related transaction
documents accompanying the Existing Bridge Notes and the Existing
Bridge Warrants are collectively referred to herein as the
“Existing Bridge Transaction Documents”
).
D. Unless
the Holders consent to the issuance of the Bridge Notes to the
Bridge Investors, the issuance of the Bridge Notes will be a breach
of the covenant contained in Section 7(a) of the Debentures (the
“ Debt Covenant ”).
E. The
Company also seeks consent to issue Additional Bridge Notes (as
defined below) in the form of the Existing Bridge Notes, as further
described herein.
F. For
purposes hereof, “ 2007 Securities Purchase
Agreement” and “May 2008 Securities
Purchase Agreement” shall have the respective
meanings set forth in the February 2009 Amendment
Agreement.
G. For
purposes hereof, “Bridge Notes” shall
mean the Existing Bridge Notes and any Additional Bridge Notes (as
defined below), “Bridge Warrants” shall
mean the Existing Bridge Warrants and any Additional Bridge
Warrants (as defined below) and “Bridge
Investors” shall mean the past, present or future
purchasers of Bridge Notes.
NOW, THEREFORE, in consideration of the mutual
benefits accruing to the Company, CSI and the Holders, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company, CSI and the Holders
agree as follows:
AGREEMENT:
1. Consent and
Waiver . Upon execution of this Agreement by the
Company, CSI and the Holders, the Holders hereby (i) consent to the
issuance, prior to the date hereof, of Existing Bridge
Notes in the aggregate principal amount of $1,156,500, (ii)
acknowledge and agree that the Company may issue additional debt
( “Additional Bridge Notes” ) and
warrants (the “Additional Bridge
Warrants” ) upon identical terms as the existing
Bridge Notes, Bridge Warrants and Bridge Transaction Documents,
respectively, after the date hereof, provided (a) that neither the
conversion price of the Bridge Notes nor the exercise price of the
Bridge Warrants shall adjust to a price that is less than the
conversion price of the Debentures (as defined in the February 2009
Amendment Agreement), as may be adjusted as provided therein, (b)
that the number of Additional Bridge Warrants issued shall not
exceed 0.4 warrant shares per dollar of principal amount of
Additional Bridge Notes purchased, (c) that the Bridge Notes shall
be unsecured and junior in right of payment to the Debentures, and
(d) that aggregate principal balance of the Bridge Notes, in the
aggregate, does not exceed $1,500,000, and (iii) agree to waive
compliance with the Debt Covenant with respect to the
Company’s issuance of the Bridge Notes, subject to the
Company’s compliance with this Agreement.
2. Repayment of
Bridge Notes . Unless the Holders otherwise
agree in writing, the Company hereby agrees that the principal
balance of the Bridge Notes, together with all accrued interest
thereon (collectively, the “ Bridge Note
Indebtedness ”), shall not be paid to the Bridge
Investors in cash prior to the Maturity Date; provided, however,
that nothing contained in this Agreement, the Debentures, the
Securities Purchase Agreements or the Warrants (collectively, the
“ Transaction Documents ”) shall prohibit
the Company from paying the Bridge Note Indebtedness prior to the
Maturity Date by issuing to the Bridge Investors shares of the
Company’s common stock (as provided in the Bridge
Notes)(“Payment Shares”), provided that, for purposes
of such payment, such Payment Shares are valued at a price which
equals or exceeds the then current conversion price of the
Debentures.
3. Confirmation
Regarding Right to Participate . By executing this
Agreement, each Holder hereby confirms that the Company, pursuant
to Section 4.12 of the Securities Purchase Agreements, provided
notice to such Holder of its right to participate in the offering
of the Bridge Notes and Bridge Warrants, and that such Holder
elected not to participate in such offering.
4. Adjustment to
Warrant Exercise Price and Antidilution Adjustment to Number of
Warrants.
(a) The parties hereby
confirm that 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), as provided for in
each of the Warrants, is hereby decreased to $0.51 (to the extent
that such exercise price was previously above $0.51), subject to
further adjustment pursuant to the terms of the Warrants (such
adjustment, the “ Warrant Adjustment
”).
(b) In connection with the
Warrant Adjustment, the number of shares of the Warrants underlying
the Warrants held by Holders of the May 2008 Convertible
Debentures, are hereby proportionally increased as shown in the
table attached as Schedule “A” hereto, and the
number of Warrants underlying the Warrants held by Holders of the
September 2007 Debentures, respectively, are hereby proportionally
increased by mutual agreement as shown in the table attached as
Schedule “A” hereto, subject to further increase
pursuant to the terms of the Warrants.
5. Effect on
Transaction Documents . Subject to the
amendments and waivers provided herein, all of the terms and
conditions of the Transaction Documents shall continue in full
force and effect after the execution of this Agreement 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 Holders under the Transaction
Documents. Except as expressly set forth herein, this
Agreement 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 Holders, 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 d
