WAIVER
WAIVER
THIS
WAIVER AGREEMENT (this “Agreement”),
dated
as
of June 6, 2008 is entered into by and among Cryoport, Inc., a Nevada
corporation (the “Company”),
and
the persons identified as “Holders” on the signature pages hereto (the
“Holders”).
Capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Existing Purchase Agreement (as defined herein)
WHEREAS,
pursuant
to a Securities
Purchase Agreement, dated September 27, 2007 (the “Existing
Purchase Agreement”),
among
the Company and the Holders and the other investors signatory thereto, the
Holders and the other investors signatory thereto purchased from the Company
an
aggregate of $4,707,705 in principal amount of Original Issue Discount, 8%
Senior Secured Convertible Debentures, Due February 2010 (the “Existing
Debentures”).
WHEREAS,
pursuant to a Securities Purchase Agreement of even date herewith in the form
attached as Exhibit
A
hereto
(the “New
Purchase Agreement”)
among
the Company and the purchasers identified on the signature pages thereto
(collectively, the “New
Investors”),
the
New Investors will be purchasing $1,250,000 in aggregate principal amount of
Convertible Debentures due December 2010 (the “New
Debentures)
and
warrants exercisable into 2,976,190 shares of Common Stock ((the “New
Warrants”,
and
the offer and sale of such debentures and warrants pursuant to the New Purchase
Agreement are hereafter referred to as the “New
Financing”).
NOW
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each Holder hereby agrees as follows:
1. Subject
to the terms and conditions hereunder, each Holder hereby waives the following:
(i) the restrictions set forth in Section 4.13(b) of the Existing Purchase
Agreement solely with respect to the right of the Company to make Monthly
Redemption (as defined in the New Debentures) payments in shares of Common
Stock, provided, that no such payments are made before January 1, 2009, and,
provided further, such payments are made pursuant to the terms of the New
Debentures as in effect on the date hereof; (ii) the restrictions set forth
in
Sections 7(a), 7(b) and 7(h) of the Existing Debentures and Sections 4(b)(i),
4(b)(ii) and 4(b)(vii) of the Subsidiary Guarantee solely with respect to the
issuance of the New Debentures and the granting of a security interest to the
New Investors pursuant to the Security Agreement (as defined in the New Purchase
Agreement); and (iii) the restriction in Section 6(b) of the Registration Rights
Agreement on filing other registration statements before all Registrable
Securities (as defined in the Registration Rights Agreement) are registered,
solely in respect of the filing of a registration statement pursuant to the
registration rights agreement among the Company and the New Investors entered
into in connection with the New Financing.
2. The
foregoing waivers shall not be effective unless and until (i) all Holders shall
have agreed to the terms and conditions hereunder and (ii) all of the New
Investors have delivered the Holders a Subordination Agreement, in the form
of
Exhibit
B
attached
hereto. In addition, the waivers set forth herein shall be null and void in
the
event the New Financing is not consummated on or before June 6,
2008.
3. The
Company hereby makes to the Holders the following representations and
warranties:
i. 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.
ii. No
Conflicts.
The
execution, delivery and performance of this Agreement 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 or any
Subsidiary’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 any Subsidiary, 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 a Company or Subsidiary debt or otherwise)
or other material understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary 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 or a Subsidiary is
subject (including federal and state securities laws and regulations), or by
which any property or asset of the Company or a Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as could not have
or
reasonably be expected to result in a Material Adverse Effect.
iii. Equal
Consideration.
Except
as set forth in this Agreement, 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.
4. Except
as
expressly set forth above, all of the terms and conditions of the Transaction
Documents (as defined in the Existing Purchase Agreement) shall continue in
full
force and effect after the execution of this Waiver and shall not be in any
way
changed, modified or superseded by the terms set forth herein. Within 1 Trading
Day of the date hereof, the Company shall issue a Current Report on Form 8-K,
attaching this agreement, and disclosing the material terms of the transactions
contemplated by the New Financing.
2
5. This
Waiver may be executed in two or more counterparts and by facsimile signature
or
otherwise, and each of such counterparts shall be deemed an original and all
of
such counterparts together shall constitute one and the same
agreement.
6. The
Company has elected to provide all Holders with the same terms and form of
waiver for the convenience of the Company and not because it was required or
requested to do so by the Holders. The obligations of each Holder under this
consent and waiver, and any Transaction Document are several and not joint
with
the obligations of any other Holder, and no Holder shall be responsible in
any
way for the performance or non-performance of the obligations of any other
Holder under this waiver or any Transaction Document. Nothing contained herein
or in any Transaction Document, and no action taken by any Holder pursuant
thereto, shall be deemed to constitute the Holders as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Holders are in any way acting in concert or as a group
with
respect to such obligations or the transactions contemplated by this waiver
or
the Transaction Documents. Each Holder shall be entitled to independently
protect and enforce its rights, including without limitation, the rights arising
out of this consent and waiver or out of the other Transaction Documents, and
it
shall not be necessary for any other Holder to be joined as an additional party
in any proceeding for such purpose. Each Holder has been represented by its
own
separate legal counsel in their review and negotiation of this consent and
waiver and the Transaction Documents.
3
IN
WITNESS WHEREOF, this Waiver Agreement is executed as of the date first set
forth above.
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By:
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/s/
Xxxxx Xxxxx
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XXXXX
XXXXX
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Title:
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CEO
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[signature
page(s) of Holders to follow]
4
COUNTERPART
SIGNATURE PAGE
OF
HOLDER
TO
AMONG
CRYOPORT, INC. AND
THE
HOLDERS THEREUNDER
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Name
of Holder:
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BridgePointe Master Fund Ltd. |
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By:
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/s/ Xxxx Xxxxxx |
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Name:
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Xxxx
Xxxxxx
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Title:
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Director |
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Name
of Holder:
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Xxxxxx
Diversified Strategy Master Fund LLC, Ena
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By:
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/s/ Xxxx Xxxxxxx |
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Name:
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Xxxx
Xxxxxxx
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Title:
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Principal and Co-Founder |
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Name
of Holder:
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Enable Opportunity Partners LP |
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By:
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/s/ Xxxx Xxxxxxx |
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Name:
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Xxxx
Xxxxxxx
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Title:
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Principal and Co-Founder |
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Name
of Holder:
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Enable Growth Partners LP |
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By:
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/s/ Xxxx Xxxxxxx |
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Name:
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Xxxx
Xxxxxxx
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Title:
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Principal and Co-Founder |
5
EXHIBIT
B
Subordination
Agreement
June
6,
2008
To:
the
Senior Lenders (as defined below):
The
undersigned lenders (each a “Creditor”,
and
collectively referred to as “Creditors”)
are
creditors of Cryoport, Inc., a Nevada corporation and/or its direct and indirect
subsidiaries (each, a “Borrower”
and
collectively referred to herein as “Borrowers”)
and
desire that Enable Growth Partners LP, Enable Opportunity Partners LP, and
Xxxxxx Diversified Strategy Master Fund LLC, ena (each, a “Senior
Lender”
and
collectively, the “Senior
Lenders”)
continue to extend such financial accommodations to the Borrowers as Borrowers
may request and as the Senior Lenders may deem proper and to grant a waiver
to
permit the Borrowers to enter into that certain Securities Purchase Agreement
dated on or about June 6, 2008. Defined terms not otherwise defined herein
shall
have the meanings set forth in that Waiver Agreement dated on or about June
6,
2008 among the Borrower and the Senior Lenders (the “Waiver
Agreement”).
For
the purpose of inducing Senior Lenders to grant the above-described waiver,
and
continue or renew such financial accommodations, and in consideration thereof,
Creditors agree as follows:
For
the
purpose of inducing Senior Lenders to grant, continue or renew such financial
accommodations, and in consideration thereof, Creditors agree as
follows:
1.
Claims
of
Creditors against any Borrower, now or hereafter existing, which arise under
the
New Transaction Documents (as defined below)(the “Subordinated Claims”) are, and
shall be at all times, subject and subordinate to any and all Senior Claims
(as
defined below) which any Senior Lender may have against any Borrower (including
any claim by the Senior Lenders for interest accruing after any assignment
for
the benefit of creditors by any Borrower or the institution by or against any
Borrower of any proceedings under the Bankruptcy Code, or any claim by the
Senior Lenders for any such interest which would have accrued in the absence
of
such assignment or the institution of such proceedings). For purposes hereof,
“New Transaction Documents” shall mean the Transaction Documents, as defined in
the New Purchase Agreement. For
clarity and avoidance of doubt, a Creditor’s Existing Debenture will continue to
rank pari passu with the Existing Debentures of the Senior
Lenders.
2.
Each
Creditor agrees not to commence or threaten to commence any action or
proceeding, xxx upon, or to collect, or to receive payment of the principal
or
interest of any Subordinated Claim or Subordinated Claims now or hereafter
existing which such Creditor may hold against any Borrower, and not to sell,
assign, transfer, pledge, hypothecate, or encumber such claim or claims except
subject expressly to this Agreement, and not to enforce or apply any security
now or hereafter existing therefor, nor to file or join in any petition to
commence any proceeding under the Bankruptcy Code, nor to take any lien or
security on any of Borrower's property, real or personal, until 91 days
following the date all claims of the Senior Lenders against any Borrower arising
under the Transaction Documents (as defined in the Existing Purchase Agreement)
(the “Senior
Claims”)
have
been indefeasibly satisfied in full. Notwithstanding the foregoing, prior to
such date, each Creditor shall be permitted to convert its Debenture to Common
Stock in accordance with the terms thereof as in effect on the date
hereof.
6
3.
In
case
of any assignment for the benefit of creditors by any Borrower or in case any
proceedings under the Bankruptcy Code are instituted by or against any Borrower,
or in case of the appointment of any receiver for any Borrower's business or
assets, or in case of any dissolution or winding up of the affairs of any
Borrower: (a) Each Borrower and any assignee, trustee in Bankruptcy, receiver,
debtor in possession or other person or persons in charge are hereby directed
to
pay to Senior Lenders the full amount of Senior Lenders claims against any
Borrower (including interest to the date of payment) before making any payment
of principal or interest to Creditors, and insofar as may be necessary for
that
purpose, each Creditor hereby assigns and transfers to the Senior Lenders all
security or the proceeds thereof, and all rights to any payments, dividends
or
other distributions, and (b) each Creditor hereby irrevocably constitutes and
appoints each Senior Lender its true and lawful attorney to act in its name
and
stead: (i) to file the appropriate claim or claims on behalf of such Creditor
if
such Creditor does not do so prior to 30 days before the expiration of the
time
to file claims in such proceeding and if any Senior Lender elects at its sole
discretion to file such claim or claims and (ii) to accept or reject any plan
of
reorganization or arrangement on behalf of Creditors, and to otherwise vote
Creditors’ claim in respect of any indebtedness now or hereafter owing from any
Borrower to Creditors in any manner the Senior Lenders deem appropriate for
their respective own benefit and protection.
4.
Each
Senior Lender is hereby authorized by Creditors to: (a) renew, compromise,
extend, accelerate or otherwise change the time of payment, or any other terms,
of any existing or future claim of such Senior Lender against any Borrower,
(b)
increase or decrease the rate of interest payable thereon or any part thereof,
(c) exchange, enforce, waive or release any security therefor, (d) apply such
security and direct the order or manner of sale thereof in such manner as such
Senior Lender may at its discretion determine, (e) release any Borrower or
any
guarantor of any indebtedness of a Borrower from liability, and (f) make
optional future advances to any Borrower, all without notice to Creditors and
without affecting the subordination provided by this Agreement.
5.
On
request of any Senior Lender, a Creditor shall deliver to the Senior Lenders
the
original of any preferred stock, debenture, promissory note or other evidence
of
any existing or future indebtedness of any Borrower to such Creditor (other
than
a Creditor’s Existing Debenture), and xxxx same with a conspicuous legend which
reads substantially as follows:
“THIS
DEBENTURE IS SUBORDINATED TO THE “SENIOR CLAIMS” AS DEFINED IN THAT CERTAIN
SUBORDINATION AGREEMENT DATED JUNE __, 2008 WITH THE SENIOR LENDERS (THE
“SUBORDINATION AGREEMENT”), AND MAY BE ENFORCED ONLY IN ACCORDANCE WITH THE
SUBORDINATION AGREEMENT”
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6.
In
the
event that any payment or any cash or noncash distribution is made to any
Creditor in violation of the terms of this Agreement, such Creditor shall
receive same in trust for the benefit of the Senior Lenders, and shall forthwith
remit it to the Senior Lenders in the form in which it was received, together
with such endorsements or documents as may be necessary to effectively negotiate
or transfer same to the Senior Lenders.
7.
Until
all
claims of Senior Lenders against the Borrowers, now or hereafter existing,
shall
be paid in full, no gift or loan shall be made by any Borrower to any
Creditor.
8.
For
violation of this Agreement, each Creditor shall be liable for all loss and
damage sustained by reason of such breach, and upon any such violation each
Senior Lender may, at its option, accelerate the maturity of any of its existing
or future claims against any Borrower.
9.
This
Agreement shall be binding upon the heirs, successors and assigns of Creditors,
the Borrowers and the Senior Lenders. The Company and each Creditor agree to
immediately execute a subordination agreement in the form of this Agreement,
upon the formation or acquisition of any direct or indirect subsidiaries
following the date hereof. This Agreement and any existing or future claim
of a
Senior Lender against a Borrower may be assigned by such Senior Lender, in
whole
or in part, without notice to Creditors or such Borrower.
10. Any
and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Existing Purchase
Agreement.
11. All
questions concerning the construction, validity, enforcement and interpretation
of this agreement shall be determined in accordance with the provisions of
the
Existing Purchase Agreement.
12. This
agreement may be executed in 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.
13. This
agreement constitutes the entire agreement among the parties with respect to
the
matters covered hereby and thereby and supersedes all previous written, oral
or
implied understandings among them with respect to such matters.
14. The
invalidity of any portion hereof shall not affect the validity, force or effect
of the remaining portions hereof. If it is ever held that any restriction
hereunder is too broad to permit enforcement of such restriction to its fullest
extent, such restriction shall be enforced to the maximum extent permitted
by
law.
8
15. Each
of
the parties hereto acknowledges that this agreement has been prepared jointly
by
the parties hereto, and shall not be strictly construed against either
party.
IN
WITNESS WHEREOF, the parties hereto have caused this Subordination Agreement
to
be duly executed by their respective authorized signatories as of the date
first
indicated above.
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BridgePointe
Master Fund Ltd.
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Name
of Creditor
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By:
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/s/
Xxxx X. Xxxxxx
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Name and Title:
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Xxxx
X. Xxxxxx, Director
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Address for Notice:
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0000
Xxxxxxxxx Xxxxxxx
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Name,
Date
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and
Amount of Subordinated Debenture:
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$1,250,000.00
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6/9/08
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9
Acceptance
of Subordination Agreement by Borrower
The
undersigned being the Borrowers named in the foregoing Subordination Agreement,
hereby accepts and consents thereto and agrees to be bound by all the provisions
thereof and to recognize all priorities and other rights granted thereby to
the
Senior Lenders, their respective successors and assigns, and to perform in
accordance therewith.
Dated:
June
9, 2008
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By:
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/s/ Xxxxx Xxxxx | ||||||
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Name:
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XXXXX
XXXXX
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Title:
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CEO
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CRYOPORT
SYSTEMS, INC.
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By:
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/s/ Xxxxx Xxxxx | ||||||
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Name:
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XXXXX XXXXX | ||||||
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Title:
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CEO | ||||||
10
