INVESMENT BANKER TERMINATION AGREEMENT
Exhibit
10.1
INVESMENT
BANKER TERMINATION AGREEMENT
THIS INVESTMENT BANKER TERMINATION
AGREEMENT (“Agreement”) is made as of this 6th
day of April, 2009 by and among CryoPort, Inc. a Nevada corporation (“CryoPort”), and Xxxxxxx Xxxxx &
Co. Ltd. (“BW”), a
Delaware corporation, SEPA Capital Corp. (“SC”), a New Jersey corporation, and
Xxxxxx Fine (“Ed Fine”).
RECITAL
WHEREAS, CryoPort wishes to
engage a new investment banker; and
WHEREAS, BW, SC and Ed Fine
collectively are CryoPort’s current investment banker under Xxxxxx Xxxxxxx &
Company, Inc. Letter Agreement dated May 4, 2006 (“Letter Agreement”) which was
assigned to National Securities Corporation on June 3, 2008, and again assigned
to BW on January 13, 2009 (a copy of which is attached hereto as Attachment
“A”); and
WHEREAS, the Parties wish to
amicably terminate the current relationship between CryoPort and BW, SC & Ed
Fine; and
WHEREAS, CryoPort wishes to
engage SC as a consultant, and SC is willing to provide such consulting
services; and
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:
AGREEMENT
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1.
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BW
shall be an Advisor with Xxxxxx & Xxxxxxx (“Xxxxxx”) investment
bankers, or such other Bankers that CryoPort may choose or use, on a
transaction with Vision Capital Advisors (“Vision”) and any other parties
that provide capital to CryoPort in any form under an investment banking
agreement on a transaction initiated prior to May 6, 2010, except as
provided below.
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2.
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Xxxxxx
or such other Bankers shall be the lead investment banker on these
transactions.
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3.
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BW
shall receive 1% commission on the transactions referenced in 1
above.
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4.
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CryoPort
shall pay BW, SC or Ed Fine, as designated, a termination fee of
$25,000.00 in either cash or CryoPort registered common stock. If in
CryoPort shares, such shares shall be in an amount sufficient when
liquidated during the three week period following the share payment to
yield at least net cash after payment of all brokerage commissions of
$25,000. That amount in shares shall be $32,000 (64,000 shares) at a
market price of $0.51 per share. Should the liquidation of such shares not
yield $25,000 in cash, CryoPort shall issue sufficient additional
registered shares to yield the $25,000, when sold or make up the short
fall with a cash payment. Within five (5) trading days of the signing of
this Agreement by all parties, CryoPort shall file a Form S-8 Registration
to register the 64,000 shares referenced above. BW shall be
entitled to a 6% late fee and rescission of this Agreement for failure to
file the Form S-8 Registration within the time period specified above
subject to Section 9.3 below.
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5.
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CryoPort
shall engage BW on a consulting basis, to manage CryoPort’s relationship
with its current institutional debt holders Enable Growth Partners LP,
Enable Opportunity Partners LP, Xxxxxx Diversified Strategy Master Fund
LLC, ENA
(collectively “Enable”) and BridgePointe Master Fund Ltd. (a.k.a. “Roswell
Capital Partners LLC”). Said consulting services shall be set forth in a
separate agreement.
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6.
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CryoPort
agrees to pay BW on any future Enable or Roswell transaction, as
contemplated by the tail in section 6(a) & (b) of the Letter
Agreement, with the exception that the cash fee and warrant fee shall be
at 7% instead of the 10% set forth in the Letter Agreement. BW shall be
paid within two (2) business days of receipt of funds, BW shall be
entitled to a one percent (1%) late fee and rescission of this Agreement
for failure to make payment within the time period specified above.
Further, for any capital raise under an investment banking agreement as
set forth in Section 1 above, BW shall have the right to its full
commission as if this Agreement had never been signed, subject to Section
9.3 below.
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7.
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As
further consideration for the termination of the Letter Agreement CryoPort
agrees to re-price issued and unexercised warrants issued to Ed Fine and
his Group (Xxxxxxx X. St. Clair, Xxxx Xxxxxxx, and Stuart
Fine) to a $0.60 exercise price and said warrants shall amended and
restated to have a five year expiration date of issuance of said warrants.
Said warrants will be in the same form as the currently existing warrants
with the exception of the price and expiration date changes. The Amended
and Restated Warrants shall be issued within fifteen (15) days of the date
of this Agreement.
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8.
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At
such time as the payments contemplated in terms 3, 4, 5 and 7 above have
been paid, the Xxxxxx Xxxxxxx & Company, Inc. Letter Agreement dated
May 4, 2006, currently assigned to BW, with the exception of the Enable
and Roswell tail, any and all responsibilities or liabilities thereunder
shall be terminated with no recourse by any of the parties set forth
above. However, the indemnification portion of the existing agreement
shall survive the Termination.
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9.
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General
Provisions:
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9.1. Governing
Law. This
Agreement shall be interpreted under and governed by the laws of the State of
New York.
9.2. Successors
and Assigns. This Agreement will be binding on the parties to the
Agreement and on each of their heirs, executors, administrators, successors, and
assigns.
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9.3. Right to
Cure Breach. CryoPort shall have the right to cure any breach
of Sections 4 or 6 above within fifteen (15) days of the date of breach before
the penalties or rescission set forth in those sections are
effective.
9.3. Effect
and Waiver. The
failure of either party to insist on strict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall not be
deemed a waiver of that term covenant, or condition, nor shall any waiver or
relinquishment of any right or power at any one time be deemed a waiver of
relinquishment of that right or power for all or any other times.
9.4. Entire
Agreement. This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto and contains all the terms, covenants, conditions and
agreements between the parties with respect to that representation in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which is not embodied herein,
and that on other agreement, statement, or promise not contained in this
Agreement shall be valid or binding on either party.
9.5. Modifications. Any modifications of this
Agreement will be effective only if it is in writing and signed by the party to
be charged.
9.6. Partial
Invalidity. If
any provision in this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect without being impaired or invalidated in any
way.
9.7. Notices. Service of all notices under
this agreement shall be sufficient if given personally or three (3) business
days after deposit in the U.S. Mail, postage prepaid to the party involved at
its respective address set forth above, or at such address as such party may
provide in writing from time to time.
9.8. Arbitration: The
parties shall resolve any disputes arising hereunder before a panel of three
arbitrators selected to pursuant to and run in accordance with the rules of the
American Arbitration Association. The arbitration shall be held in
New York County, New York. Each party shall bear their own attorney’s fees and
costs of such arbitration. The successful party in the arbitration
proceedings shall be entitled to seek an award of reasonable attorney’s fees
from the Arbitrators.
9.9. No Rights
in Third Parties.
Nothing herein expressed or implied is intended to or shall be construed to
confer upon or give to any person, firm or other entity, other than the parties
hereof and their respective successors and assigns or personal representatives,
any rights or remedies under or by reason of this Agreement.
[SIGNATURES
ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the parties
hereto have executed this Agreement the day and year first set forth
above.
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By
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/s/
Xxxxx
Xxxxxxxxx
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April
13, 2009
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Name:
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Xxxxx
Xxxxxxxxx
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Date
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Title:
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Chief
Executive Officer
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XXXXXXX XXXXX & CO.
LTD.
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By:
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/s/
Xxx
Xxxx
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April
13, 2009
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Name:
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Xxx
Xxxx
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Date
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Title:
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President, Xxxxxxx Xxxxx & Co., Ltd. | |
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SEPA
CAPITAL CORP.
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By:
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/s/
Xxxxxx
Fine
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April
13, 2009
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Name:
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Xxxxxx
Fine
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Date
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Title:
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Vice
President
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XXXXXX
FINE
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By:
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/s/
Xxxxxx
Fine
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April
13, 2009
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Date
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ATTACHMENT
“A”
(National
Securities Corporation Assignment Letter,
Dated
January 13, 2009)
ASSIGNMENT
FOR ALL GOOD AND VALUABLE
CONSIDERATION, the receipt of which is hereby acknowledged, National
Securities Corporation, a Washington corporation (hereinafter called “Assignor”)
does hereby assign, transfer, sell and convey to Xxxxxxx Xxxxx & Co., Ltd.
Located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, (hereinafter
called the “Assignee”), all of its right, title and interest in and to that
certain letter agreement (including all exhibits thereto), dated May 4, 2006, by
and between Cryoport, Inc. (the “Company”) and Assignor, a copy of which
agreement is attached hereto as Exhibit A (the “Agreement”), and all rights to
enforce any violation of said agreement in the name of the undersigned and all
rights created by said agreement. The undersigned represents and
warrants to the Assignee that the Assignor has not previously transferred,
assigned or otherwise encumbered the rights assigned thereunder and the
undersigned has the right to make this assignment without further approval and
that the Agreement has not been amended subsequent to May 4, 2006.
The undersigned represents that he has
authority to execute this assignment for and on behalf of the
Assignor. The Assignor hereby irrevocably points the Assignee its
attorney-in-fact with full power of substitution and with complete authority to
do anything necessary to enforce the terms of the Agreement assigned and to xxx
for, prosecute and collect payment of money due to the Assignor on account of
the Agreement assigned.
By its execution below, the Company
hereby (i) consents to the assignment by the Assignor of all of its right, title
and interest under the Agreement to Assignee and (ii) agrees that the Company
shall have no claims, causes of action, or other rights against Assignee in
connection with matters relating to the Agreement with respect to actions or in
actions occurring prior to the date hereof.
IN WITNESS WHEREOF, the
undersigned has signed and acknowledged this agreement on the 13th day of
January, 2009.
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NATIONAL
SECURITIES CORPORATION
By: /s/ Xxxxx
Xxxxxxxx
Xxxxx
Xxxxxxxx
Managing
Director, Head of Investment Banking
XXXXXXX
XXXXX & CO. LTD.
By: /s/ Xxxxxx
Xxxx dated
4/9/09
Xxxxxx
Xxxx
CEO,
Xxxxxxx Xxxxx & Co. Ltd.
By: /s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
CEO
and President
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