FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit 4.8
FIRST AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT (“Amendment”) is made as of August __,
2010 by and between CryoPort, Inc., a Nevada corporation (the “Company”) and
_____________________________ (the “Investor”) and amends that certain Securities Purchase
Agreement between the Company and the Investor (the “Purchase Agreement”).
Recitals
A. The Company and the Investor are executing and delivering this Amendment in reliance upon
the exemption from securities registration afforded by the provisions of Regulation D (“Regulation
D”), as promulgated by the U.S. Securities and Exchange Commission under the Securities Act of
1933, as amended; and
B. The Company and the Investor previously entered into the Purchase Agreement; and
C. The Company and the Investor desire to amend the Purchase Agreement pursuant to the terms
and conditions of this Amendment.
In consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Except as otherwise provided in this Amendment, capitalized terms
used but not otherwise defined herein have the meanings set forth in the Agreement.
2. Warrant Exercise Prices. The definition of Unit Warrant is hereby amended and
restated to mean “a warrant to purchase one share of Common Stock (subject to adjustment) at an
exercise price of $0.77 per whole share (subject to adjustment) in the form attached to the
Agreement as Exhibit A.” The terms of the Additional Warrant (including, without
limitation, exercise price) are identical to the terms of the Unit Warrant.
3. Removal of Adjustment to Shares Purchased Pursuant to Section 2.1 of the Agreement and
Addition of Participation Right. Section 2.3 of the Agreement is hereby amended by deleting
the provisions thereof and substituting therefor the following:
“2.3 Participation Right.
(a) For a period of 24 months following the Closing Date, the Investor
shall have the right to participate in any subsequent equity financing (a
“Subsequent Financing”), on the same terms, conditions and price (whether fixed
or determined by formula) provided for in the Subsequent Financing; provided,
however, that nothing shall preclude the Company from also selling
the same securities to other investors not a party to the transaction
contemplated by this Agreement as well as part of the Subsequent Financing.
(b) At least 5 business days prior to the closing of the Subsequent
Financing, the Company shall deliver to the Investor a written notice of its
intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice
shall ask the Investor if it wants to review the details of such financing (such
additional notice, a “Subsequent Financing Notice”). Upon the request of the
Investor, for a Subsequent Financing Notice, the Company shall promptly, but no
later than 1 business day after such request, deliver a Subsequent Financing
Notice to the Investor. The Subsequent Financing Notice shall describe in
reasonable detail the proposed terms of such Subsequent Financing, the amount of
proceeds intended to be raised thereunder and the Person or Persons through or
with whom such Subsequent Financing is proposed to be effected and shall include
a term sheet or similar document relating thereto as an attachment.
(c) If the Investor desires to participate in such Subsequent Financing the
Investor must provide written notice to the Company by not later than 5:30 p.m.
(New York City time) on the 5th business day after all investors have received
the Pre-Notice that the Investor is willing to participate in the Subsequent
Financing, the amount of the Investor’s participation, and that the Investor has
such funds ready, willing, and available for investment on the terms set forth
in the Subsequent Financing Notice. If the Company receives no notice from the
Investor as of such 5th business day, the investor shall be deemed to have
notified the Company that it does not elect to participate.
(d) Following 5:30 p.m. (New York City time) on the 5th business day after
all of investors have received the Pre-Notice, the Company shall have the right
to close the Subsequent Financing upon terms no more favorable than as set forth
in Subsequent Financing Notice.
(e) The foregoing right to participate shall not apply to subsequent
closings with respect to the offering contemplated by this Agreement effected
prior to the filing of the Registration Statement, issuances of equity or equity
linked securities under equity incentive plans, issuances of warrants to
consultants or other service providers in exchange for bona fide services or in
connection with any merger, acquisition or strategic transaction.”
4. Amendments. Section 9.6 of the Agreement is hereby amended by deleting the
provisions thereof and substituting therefor the following:
“9.6 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and each investor who has purchased
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Securities in the offering contemplated hereby. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any Securities
purchased under this Agreement at the time outstanding, each future holder of all
such Securities, and the Company.”
5. Miscellaneous.
5.1 Confirmation. Except as amended hereby, the Agreement remains in full force and
effect in accordance with its existing terms.
5.2 Effectiveness. This Amendment shall not be effective until the Company shall
have received a duly executed counterpart from each investor who has previously delivered a duly
executed counterpart to the Purchase Agreement.
5.3 Counterparts; Faxes. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. This Amendment may also be executed via facsimile, which shall be deemed an
original.
5.4 Titles and Subtitles. The titles and subtitles used in this Amendment are used
for convenience only and are not to be considered in construing or interpreting this Amendment.
5.5 Amendments and Waivers. Any term of this Amendment may be amended and the
observance of any term of this Amendment may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company
and each investor who has purchased Securities in the offering contemplated hereby. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each holder of any
Securities purchased under the Agreement, as amended by this Amendment, at the time outstanding,
each future holder of all such Securities, and the Company.
5.6 Severability. Any provision of this Amendment that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
5.7 Entire Agreement. This Amendment, together with the Agreement, including the
Exhibits and the Disclosure Schedules thereto, and the other Transaction Documents constitute the
entire agreement between the parties hereof with respect to the subject matter hereof and thereof
and supersede all prior agreements and understandings, both oral and written, between the parties
with respect to the subject matter hereof and thereof.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Amendment as of the date first above written.
| The Company: | CryoPort, Inc. |
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| By: | ||||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
Signature Page to First Amendment to
Securities Purchase Agreement
Securities Purchase Agreement
