FIRST AMENDMENT TO AMENDED AND RESTATED AMENDMENT AGREEMENTS
Exhibit
4.1.9
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED AMENDMENT AGREEMENTS (this “Amendment”) is entered into on
February 23, 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”), ▇▇▇▇▇▇ Diversified
Strategy Master Fund LLC, Ena (“▇▇▇▇▇▇” 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) and in each of the Debentures (each as defined in documents
referred to in the recitals incorporated by reference below).
WHEREAS, the Company and the
Holders are parties to that certain Amended and Restated Amendment Agreements
entered into on February 19, 2010 (the “Amended and Restated Amendment
Agreements”);
WHEREAS, all recitals
contained in the Amended and Restated Amendment Agreements are hereby
incorporated into this Amendment by this reference;
WHEREAS, the Company and the
Holders now desire to amend the Amended and Restated Amendment Agreements 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 Amended and Restated Amendment
Agreements.
2. Amendment to Section
8. Section 8 of the Amended and Restated Amendment Agreements
is hereby deleted in its entirety and replaced with the following new Section
8:
“8. Conversion of
Debentures. Subject to the Unwind Provisions (as defined
below), concurrently with the effectiveness of Company’s Registration Statement
on Form S-1 (File No. 333-162350), relating to the Approved Public Offering,
provided that an amendment to the Form S-1 has been filed reflecting an offering
amount of at least $6,000,000 in gross proceeds (the “Form S-1 Effectiveness”) (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 Unit Offering Price (as
defined below) (also referred to as the “Required Conversion
Price”) 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 Unit Offering Price (such
shares received by BridgePointe also referred to as the “Conversion Shares”)(such
conversions of the Enable Funds and BridgePointe are collectively referred to
herein as the “Mandatory
Conversions”). For purposes hereof, “Unit Offering Price” means the
offering price for one unit 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 following the commencement
of the Approved Public Offering in accordance with Rule 424(b) of the Securities
Act of 1933, as amended. Within five (5) business days following the
Form S-1 Effectiveness (the “Share Delivery Deadline”) the
Company shall deliver the Conversion Shares to each Holder. The
Conversion Shares shall be free of restrictive legends and trading restrictions
(other than the lock-up contemplated in Section 13 below) 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.
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Notwithstanding
anything to the contrary herein, in the event that the Approved Public Offering
does not close on or before March 15, 2010, (i) the Mandatory Conversions shall
immediately be considered null and void ab initio, the Enable Funds and
BridgePointe shall each return the Conversion Shares to the Company, the
outstanding principal balance of the Debentures of the Enable Funds and
BridgePointe, respectively, shall be reinstated to the amount that they were
immediately prior to the Mandatory Conversion (less the Future Interest Amount
added pursuant to Section 4 above), and the conversion terms, including but not
limited to the Conversion Price, of the Debentures and the defined terms amended
pursuant to Sections 5 through 7, shall revert back to the conversion
terms and defined terms, including but not limited to the Conversion Price, that
would have been in effect had the January 2010 Amendment Agreement, the February
1 Amendment to Amendment Agreement and this Amendment never existed, (ii) the
Warrant Modifications (as defined in Section 10 of this Amendment) shall
immediately be considered null and void ab initio, and the terms of the Warrants
of the Enable Funds and BridgePointe, respectively, shall be reinstated to the
terms that were in effect immediately prior to the Warrant Modifications (except
that the extension of the term of the Warrants to January 1, 2015 shall remain
in effect notwithstanding that the Approved Public Offering did not close),
(iii) the Remaining Debenture Reset shall immediately be considered null and
void ab initio (iv) the Debenture Modifications (as defined in Section 11 of
this Amendment) shall immediately be considered null and void ab initio, and the
terms of the Debentures of the Enable Funds and BridgePointe, respectively,
shall be reinstated to the terms that in effect immediately prior to the this
Amendment, (v) the covenants terminated pursuant to Section 12 below shall be
reinstated, and (vi) the lock-up agreements executed pursuant to Section 13
below shall be considered null and void ab initio ((i) – (vi) immediately above
are collectively referred to herein as the “Unwind
Provisions”).”
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3. Effect on Transaction
Documents. Subject to the amendment
to the Amended and Restated Amendment Agreements provided for herein, all of the
terms and conditions of the Transaction Documents (including all prior
amendments thereto) 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 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.
4. 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.
5. 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.
6. 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.
7. 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.
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8. 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.
9. 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.
10. 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.
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(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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
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IN WITNESS WHEREOF, the
parties have duly executed this Amendment as of the date first written
above.
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
[signature page of Holders
follows]
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Holders’
Signature Page
BRIDGEPOINTE MASTER FUND
LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Director
ENABLE GROWTH PARTNERS
LP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
ENABLE OPPORTUNITY PARTNERS
LP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
▇▇▇▇▇▇ DIVERSIFIED STRATEGY MASTER
FUND LLC, ENA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
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