UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
March 5, 2015
CRYOPORT,
INC.
(Exact name of registrant as specified in
its charter)
Nevada |
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001-34632 |
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88-0313393 |
(State of other jurisdiction
of incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
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20382 Barents Sea Circle, Lake Forest, California 92630 |
(Address of Principal Executive Offices) |
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Registrant’s telephone number, including area code: (949) 470-2300 |
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Not Applicable |
(Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2 below):
| ¨ | Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14A-12 under the
Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement. |
In March 2015,
Cryoport, Inc. (the “Registrant”) and/or its wholly owned subsidiary Cryoport Systems, Inc., a California
corporation (“Cryoport Systems”), entered into definitive agreements relating to the exchange or amendment of certain related party notes payable and accrued interest
aggregating $1,298,004, which became due through March 1, 2015, and issued warrants to purchase a certain number of shares of
the Registrant’s Common Stock, as described herein and in Item 3.02 (collectively, the “Warrants”)
to certain of these note holders, who are also accredited investors (the “Investors”).
On March 6, 2015,
the Registrant entered into a material definitive agreement with one of the note holders, effective February 20,
2015, pursuant to a Note Exchange Agreement and Letter of Investment Intent (the “Exchange and
Investment Agreement”), for the exchange of all principal and accrued interest outstanding (the
“Exchange Amount”) under a promissory note issued in 2005 for (i) a new convertible promissory note with
an original principal amount equal to the Exchange Amount (the “Exchange Note”), and (ii) a warrant to
purchase 17,880 shares of the Registrant’s Common Stock at an exercise price of $0.50 per share, exercisable on
February 20, 2015 and expiring on February 19, 2018 (the “Exchange Warrant”).
On March 6, 2015,
the Registrant and Cryoport Systems entered into material definitive agreements with three note holders, effective March
2, 2015, pursuant to Letters of Investment Intent (the “Investment Agreements”) for (i) the amendment
and restatement of promissory notes issued in 2005 to these individuals (the “Amended and Restated
Notes”), (ii) the issuance of warrants for the purchase 448,164, 266,686, and 208,941 shares, respectively, of
the Registrant’s Common Stock at an exercise price of $0.50 per share, exercisable on March 2, 2015 and expiring on
March 1, 2020 (the “March Warrants”), and (iii) warrants to purchase 10,000, 5,000, and 5,000
shares, respectively, of the Registrant’s Common Stock, exercisable on March 2, 2015 and expiring on March 1, 2020,
to reimburse the three note holders for any fees or other expenses incurred in connection with this transaction
(the “March Fee Warrant”).
On March 5,
2015, Cryoport Systems entered into an Amendment to Simple Interest Commercial Promissory Note with one note holder
(the “Note Amendment”) effective March 2, 2015, which amends a note issued in 2005 (the “Original
Note”).
The foregoing summary
of the terms and conditions of the exchange or amendment of certain related party notes payable does not purport to be complete
and is qualified in its entirety by reference to the full text of each of the aforementioned documents, which are filed as Exhibits
4.1, 4.2, 4.3, 10.1, 10.2, 10.3, 10.4 and 10.5, attached hereto.
The information set
forth in Item 2.03 and 3.02 is incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant. |
The information set
forth in Item 1.01 is incorporated herein by reference.
The Exchange Note was
issued in the aggregate principal amount of $35,761. The Exchange Note accrues interest at a rate of 6% per annum. All
principal and interest under the Exchange Note will be due on March 1, 2016. The Exchange Note is convertible in the event the
Registrant conducts a registered public offering of or including the Registrant’s Common Stock that results in at least $5
million of gross cash proceeds (a “Qualified Offering”). In the event of a Qualified Offering, the Registrant
shall have thirty (30) days to notify the Exchange Note holder of the Qualified Offering, and the Exchange Note holder shall have
the option until thirty (30) days after such notice to elect in writing to convert all or a portion of the principal and accrued
interest under the Exchange Note into the equity securities that were issued by the Registrant in such Qualified Offering at a
conversion rate to be determined by dividing the principal and accrued interest the Exchange Note holder wishes to convert by (80%)
of the price per share of the securities issued by the Registrant in the Qualified Offering (the “Qualified Offering Conversion
Mechanics”). The Registrant may prepay the Note at any time without penalty.
The Amended and Restated
Notes were issued in the aggregate principal amount of $448,163.52, $266,686.21, and $208,941.36. The Amended and Restated
Notes accrue interest at a rate of 6% per annum. All principal and interest under the Amended and Restated Notes will be due and
shall be paid on the earlier of (i) March 1, 2016, (ii) the sale of all or substantially all of the assets of the Registrant or
Cryoport Systems, or (ii) the merger, consolidation or other similar reorganization of a Registrant affiliate or Cryoport Systems
with another entity. The Amended and Restated Notes are convertible in the event of a Qualified Offering and subject to the Qualified
Offering Conversion Mechanics. The Registrant may not prepay the Amended and Restated at any time without prior written consent
of the Amended and Restated Note holder.
On March 6, 2015,
Cryoport Systems entered into the Note Amendment effective as of March 2, 2015, acknowledging an outstanding aggregate balance of $338,452.07. The Original Note, as amended by the Note Amendment, accrues interest at a rate of 6% per
annum commencing on March 13, 2015; however, no interest payments will be due if no event of default occurs and if Cryoport
Systems (i) complies with its regular payment obligations, reimburses the payee for attorneys’ fees in connection
with the negotiation of the Note Amendment, up to a maximum amount of $1,000, on the later of (A) March 13, 2015, or (B)
three (3) days after receiving written notice from the payee of the amount of attorneys’ fees incurred by payee,
and (iii) Cryoport Systems immediately pays all unpaid amounts due and payable in full before May 1, 2016, if the payee(s) of
any other promissory note(s) with Cryoport Systems that were issued in 2005 are paid in full before May 1, 2016, other than
(Y) notes that are satisfied upon conversion into common stock, warrants or any other equity of Cryoport Systems, or (Z)
notes that have been paid in full before March 2, 2015. All principal and interest under the Original Note, as amended by
the Note Amendment, will be due and shall be paid on May 1, 2016.
| Item 3.02 | Recent Sale of Unregistered Securities. |
The information set
forth in Item 1.01 and 2.03 is incorporated herein by reference.
The issuance of the
Notes and the Warrants to the Investors was completed in accordance with the exemption provided by Regulation D of the Securities
Act of 1933, as amended (the “Securities Act”), and/or Section 4(2) of the Securities Act, in that such
sale and issuance was made without any public offering to “accredited investors,” as that term is defined under Rule
501 of Regulation D of the Securities Act.
The Registrant did
not pay any discounts or commissions with respect to the issuance of the Notes or the Warrants to the Investors.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits. The
following material is filed as an exhibit to this Current Report on Form 8-K:
Exhibit
| 4.1 | Form of Warrant issued in connection with the Exchange and Investment Agreement. |
| 4.2 | Form of March Warrant issued in connection with the Investment Agreement. |
| 4.3 | Form of March Fee Warrant issued in connection with the Investment Agreement. |
| 10.1 | Form of Note Exchange Agreement and Letter of Investment Intent, effective as of March 2, 2015. |
| 10.2 | Form of Exchange Note issued in connection with the Exchange and Investment Agreement, effective as of February 20, 2015. |
| 10.3 | Form of Letter of Investment Intent, effective as of March 2, 2015. |
| 10.4 | Form of Amended and Restated Note issued in connection with the Exchange and Investment Agreement. |
| 10.5 | Amendment to Simple Interest Commercial Promissory Note, effective as of March 2, 2015. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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CRYOPORT, INC. |
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Date: March 10, 2015 |
By: |
/s/ Robert
Stefanovich |
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Robert Stefanovich |
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Chief Financial Officer |
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EXHIBIT INDEX
Exhibit
| 4.1 | Form of Warrant issued in connection with the Exchange and Investment Agreement. |
| 4.2 | Form of March Warrant issued in connection with the Investment Agreement. |
| 4.3 | Form of March Fee Warrant issued in connection with the Investment Agreement. |
| 10.1 | Form of Note Exchange Agreement and Letter of Investment Intent, effective as of March 2, 2015. |
| 10.2 | Form of Exchange Note issued in connection with the Exchange and Investment Agreement, effective as of February 20, 2015. |
| 10.3 | Form of Letter of Investment Intent, effective as of March 2, 2015. |
| 10.4 | Form of Amended and Restated Note issued in connection with the Exchange and Investment Agreement. |
| 10.5 | Amendment to Simple Interest Commercial Promissory Note, effective as of March 2, 2015. |
Exhibit 4.1
THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED
UNLESS (I) A REGISTRATION STATEMENT REGISTERING SUCH SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE, OR (II) AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND OR QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES
A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED.
Warrant to Purchase |
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_____ shares |
Warrant Number ______ |
Warrant to Purchase Common Stock
of
CRYOPORT, INC.
THIS CERTIFIES that ________- or
any subsequent holder hereof (“Holder”) has the right to purchase from Cryoport, Inc., a Nevada corporation, (the “Company”),
_________ fully paid and nonassessable shares of the Company’s common stock, $0.001 par value per share (“Common
Stock”), subject to adjustment as provided herein, at a price equal to the Exercise Price as defined in Section 3 below at
any time during the Exercise Period (as defined below).
Holder agrees with the Company that this
Warrant to Purchase Common Stock of the Company (this “Warrant” or this “Agreement”) is issued and all
rights hereunder shall be held subject to all of the conditions, limitations and provisions set forth herein.
1. Term and Restriction
on Exercise.
The term of this Warrant begins on February
20, 2015 and the rights under this Warrant expire at 5:00 p.m., Pacific Time, on February 19, 2018 (such period of exercise
is referred to herein as the “Term”).
Notwithstanding anything herein to the
contrary, the Company shall not issue to the Holder, and the Holder may not acquire, a number of shares of Common Stock upon exercise
of this Warrant to the extent that, upon such exercise, the number of shares of Common Stock then beneficially owned by the Holder
and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with the Holder’s
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including
shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the
ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar
to the limitation set forth herein) would exceed 9.98% of the total number of shares of Common Stock then issued and outstanding
(the “9.98% Cap”), provided that the 9.98% Cap shall only apply to the extent that the Common Stock is deemed to constitute
an “equity security” pursuant to Rule 13d-1(i) promulgated under the Exchange Act. For purposes hereof, “group”
has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Securities and Exchange Commission
(the “SEC”), and the percentage held by the Holder shall be determined in a manner consistent with the provisions of
Section 13(d) of the Exchange Act. Upon the written request of the Holder, the Company shall, within two (2) Trading Days,
confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
“Trading Day” means a day on
which any stock exchange on which the Common Stock is listed is open for the transaction of business.
“Affiliate” means any person
or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act of 1933, as amended (the
“Securities Act”). With respect to a Holder of Warrants, any investment fund or managed account that is managed on
a discretionary basis by the same investment manager as such Holder will be deemed to be an Affiliate of such Holder.
2. Exercise.
(a) Manner of Exercise.
During the Term (the “Exercise Period”), this Warrant may be Exercised as to all or any lesser number of whole shares
of Common Stock covered hereby (the “Warrant Shares” or the “Shares”) upon surrender of this Warrant, with
the Exercise Form attached hereto as Exhibit A (the “Exercise Form”) duly completed and executed, together
with the full Exercise Price for each share of Common Stock as to which this Warrant is Exercised, at the office of the Company,
Cryoport, Inc., 20382 Barents Sea Circle, Lake Forest, California 92630; Fax: (949) 470-2306, with an electronic copy (for informational
purposes only, and not constituting delivery hereunder) to: stockadministrator@cryoport.com, or at such other office or agency
as the Company may designate in writing, by overnight mail, with an advance copy of the Exercise Form sent to the Company by facsimile
(such surrender and payment of the Exercise Price hereinafter called the “Exercise” of this Warrant).
(b) Date of Exercise.
The “Date of Exercise” of the Warrant shall be defined as the later of (A) the date that the Exercise Form attached
hereto as Exhibit A, completed and executed, is sent by facsimile or email to the Company, provided that the original Warrant
and Exercise Form are received by the Company, each as soon as practicable thereafter (or, the date the original Exercise Form
is received by the Company, if Holder has not sent advance notice by facsimile) and (B) the date that the Exercise Price is received
by the Company.
(c) Delivery of Common
Stock Upon Exercise. Within three (3) business days after any Date of Exercise, the Company shall issue and deliver (or cause
its transfer agent to issue and deliver) in accordance with the terms hereof to or upon the order of the Holder that number of
shares of Common Stock (“Exercise Shares”) for the portion of this Warrant exercised as shall be determined in accordance
herewith. Upon the Exercise of this Warrant or any part hereof, the Company shall, at its own cost and expense, take all necessary
action, including obtaining and delivering an opinion of counsel, to assure that the transfer agent shall issue stock certificates
in the name of Holder (or its nominee) or such other persons as designated by Holder and in such denominations to be specified
at Exercise representing the number of shares of Common Stock issuable upon such Exercise.
(d) Delivery Failure.
In addition to any other remedies that may be available to the Holder, in the event that the Company fails for any reason to effect
delivery of the Exercise Shares by the end of the Delivery Period (a “Delivery Failure”), the Holder will be entitled
to revoke all or part of the relevant Exercise Form by delivery of a notice to such effect to the Company via facsimile or email
not later than three (3) Trading Days after the end of the Delivery Period, whereupon the Company and the Holder shall each be
restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described
herein shall be payable through the date notice of revocation or rescission is given to the Company.
(e) Restrictive Legend.
The Holder understands that the Exercise Shares will be issued pursuant to a claimed exemption from registration under the Securities
Act and thus the certificate for the Exercise Shares will bear a restrictive legend in substantially the following form (and a
stop-transfer order will be placed against transfer of the certificates for such securities):
“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT INCLUDING,
WITHOUT LIMITATION, PURSUANT TO RULES 144 OR 144A UNDER SAID ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL
OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4(1) AND A HALF” SALE.”
(f) Cancellation of
Warrant. This Warrant shall be canceled upon the full Exercise of this Warrant and if this Warrant is not Exercised in full,
Holder shall be entitled to receive a new Warrant (containing terms identical to this Warrant) representing any unexercised portion
of this Warrant in addition to such Common Stock.
(g) Holder of Record.
Each person in whose name any Warrant for shares of Common Stock is issued shall, for all purposes, be deemed to be the Holder
of record of such shares on the Date of Exercise of this Warrant, irrespective of the date of delivery of the Common Stock purchased
upon the Exercise of this Warrant.
3. Payment of Warrant
Exercise Price.
(a) Exercise Price.
The Exercise Price (“Exercise Price”) shall initially equal $0.50 per share, subject to adjustment pursuant
to the terms hereof, including but not limited to Section 5 below. Payment of the Exercise Price may be made in cash, bank
or cashier’s check or wire transfer.
(b) Dispute Resolution.
In the case of a dispute as to the determination of the closing price of the Company’s Common Stock or the arithmetic calculation
of the Exercise Price, Market Price or any Major Transaction Warrant Early Termination Price, the Company shall submit the disputed
determinations or arithmetic calculations via facsimile within two (2) business days of receipt, or deemed receipt, of the Exercise
Notice or Major Transaction Early Termination Notice, or other event giving rise to such dispute, as the case may be, to the Holder.
If the Holder and the Company are unable to agree upon such determination or calculation within two (2) business days of such disputed
determination or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) business days submit
via facsimile (i) the disputed determination of the closing price or the Volume Weighted Average Price of the Company’s
Common Stock to an independent, reputable investment bank selected by the Company and approved by the Holder, which approval shall
not be unreasonably withheld or (ii) the disputed arithmetic calculation of the Exercise Price, Market Price or any Major
Transaction Warrant Early Termination Price to the Company’s independent, outside accountant. The Company shall cause the
investment bank or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and
the Holder of the results no later than five (5) business days from the time such investment bank or accountant, as the case may
be, receives the disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation,
as the case may be, shall be binding upon all parties absent demonstrable error.
4. Transfer Rights.
Subject to the provisions of Section 8 of this Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly completed and endorsed. This Warrant shall be canceled
upon such surrender and, as soon as practicable thereafter, the person to whom such transfer is made shall be entitled to receive
a new Warrant or Warrants as to the portion of this Warrant transferred, and Holder shall be entitled to receive a new Warrant
as to the portion hereof retained.
5. Adjustments Upon
Certain Events.
(a) Participation.
The Holder, as the holder of this Warrant, shall be entitled to receive such dividends paid and distributions of any kind made
to the holders of Common Stock of the Company to the same extent as if the Holder had Exercised this Warrant into Common Stock
(without regard to any limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of
shares are authorized and reserved to effect any such exercise and issuance) and had held such shares of Common Stock on the record
date for such dividends and distributions. Payments under the preceding sentence shall be made concurrently with the dividend or
distribution to the holders of Common Stock.
(b) Recapitalization
or Reclassification. If the Company shall at any time effect a stock split, payment of stock dividend, recapitalization, reclassification
or other similar transaction of such character that the shares of Common Stock shall be changed into or become exchangeable for
a larger or smaller number of shares, then upon the effective date thereof, the number of shares of Common Stock which Holder shall
be entitled to purchase upon Exercise of this Warrant shall be increased or decreased, as the case may be, in direct proportion
to the increase or decrease in the number of shares of Common Stock by reason of such stock split, payment of stock dividend, recapitalization,
reclassification or similar transaction, and the Exercise Price shall be, in the case of an increase in the number of shares, proportionally
decreased and, in the case of decrease in the number of shares, proportionally increased. The Company shall give Holder the same
notice it provides to holders of Common Stock of any transaction described in this Section 5(b).
(c) Rights Upon Major
Transaction.
(i) Major Transaction. In the event
that a Major Transaction (as defined below) occurs, then (1) in the case of a Cash-Out Major Transaction and in the case of a Mixed
Major Transaction to the extent of the percentage of the cash consideration in the Mixed Major Transaction (determined in accordance
with the definition of a Mixed Major Transaction below), the Holder, at its option, may require the Company to redeem the Holder’s
outstanding Warrants in accordance with Section 5(c)(iii) below, and (2) in the case of a transaction with a Publicly Traded
Successor Entity covered by the provisions of Section 5(c)(i)(A) below in which the Company is not the surviving entity (a “Successor
Redemption Transaction”) and in the case of a Mixed Major Transaction that is a Successor Redemption Transaction, to the
extent of the percentage of the consideration represented by securities of a Publicly Traded Successor Entity, the Holder may require
this Warrant to be treated as a Successor Redemption in accordance with Section 5(c)(iii) below. In the event the Holder shall
not have exercised any of its rights under clauses (1) or (2) above within the applicable time periods set forth herein, then the
Major Transaction shall be treated as an Assumption (as defined below) in accordance with Section 5(c)(ii) below unless the Holder
waives its rights under this Section 5(c) with respect to such Major Transaction. Each of the following events shall constitute
a “Major Transaction”:
(A) a consolidation,
merger, exchange of shares, recapitalization, reorganization, business combination or other similar event, (1) following which
the holders of Common Stock immediately preceding such consolidation, merger, exchange, recapitalization, reorganization, combination
or event either (a) no longer hold a majority of the shares of Common Stock or (b) no longer have the ability to elect
a majority of the board of directors of the Company or (2) as a result of which shares of Common Stock shall be changed into
(or the shares of Common Stock become entitled to receive) the same or a different number of shares of the same or another class
or classes of stock or securities of another entity (collectively, a “Change of Control Transaction”);
(B) the sale or transfer,
in one transaction or in a series of related transactions, of significant assets of the Company which, without limitation, shall
include, but not be limited to, a sale or transfer, in one transaction or in a series of related transactions, of more than 50%
of the Company’s assets as reflected on its then latest publicly filed balance sheet (including proprietary rights), provided,
however, that except for a sale of all or substantially all of the Company’s assets, a collaborative arrangement, licensing
agreement, joint venture or partnership or similar business arrangement providing for the development or commercial exploitation
or, or right to develop or commercially exploit, the technology, intellectual property or products of the Company (including arrangements
that involve the assignment or licensing of any existing or newly developed intellectual property under such arrangements) whereby
income or profits are to be shared (including by lump sum royalty or running royalty) with any other entity shall not constitute
a Major Transaction;
(C) a purchase, tender
or exchange offer made to the holders of outstanding shares of Common Stock, such that following such purchase, tender or exchange
offer a Change of Control Transaction shall have occurred;
(D) the liquidation,
bankruptcy, insolvency, dissolution or winding-up (or the occurrence of any analogous proceeding) affecting the Company; or
(E) the shares of Common
Stock cease to be listed, traded or publicly quoted on the OTCBB, and are not promptly re-listed or requoted on either the New
York Stock Exchange, the NYSE Alternext U.S., the NASDAQ Global Select Market, the NASDAQ Capital Market or listed in the over
the counter market by the Financial Industry Regulatory Authority, Inc. or in the “pink sheets” by the Pink OTC Market,
Inc.
(ii) Assumption.
The Company shall not enter into or be party to a Major Transaction that is to be treated as an Assumption pursuant to Section
5(c)(i), unless (1) any Person purchasing the Company’s assets or Common Stock, or any successor entity resulting from such
Major Transaction (in each case, a “Successor Entity”), assumes in writing all of the obligations of the Company under
this Warrant, and (2) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder
prior to such Major Transaction, including agreements to deliver to each holder of Warrants in exchange for such Warrants a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Warrants, including,
without limitation, an instrument representing the appropriate number of shares of the Successor Entity, having similar exercise
rights as the Warrants (including but not limited to a similar Exercise Price and similar Exercise Price adjustment provisions
based on the price per share or conversion ratio to be received by the holders of Common Stock in the Major Transaction), satisfactory
to the Holder. Upon the occurrence of any Major Transaction, any Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Major Transaction, the provisions of this Warrant referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation
of the Major Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise
or redemption of this Warrant at any time after the consummation of the Major Transaction, in lieu of the shares of Common Stock
(or other securities, cash, assets or other property) issuable upon the exercise of the Warrants prior to such Major Transaction,
such shares of common stock (or their equivalent) of the Successor Entity, as adjusted in accordance with the provisions of this
Warrant. The provisions of this Section shall apply similarly and equally to successive Major Transactions and shall be applied
without regard to any limitations on the exercise of this Warrant other than any applicable beneficial ownership limitations. Any
assumption of Company obligations under this paragraph shall be referred to herein as an “Assumption.”
(iii) Notice; Major
Transaction Early Termination Right. At least thirty (30) days prior to the consummation of any Major Transaction, but, in
any event, on the first to occur of (x) the date of the public announcement of such Major Transaction if such announcement
is made before 4:00 p.m., New York City time, or (y) the day following the public announcement of such Major Transaction if
such announcement is made on and after 4:00 p.m., New York City time, the Company shall deliver written notice thereof via facsimile
and overnight courier to the Holder (a “Major Transaction Notice”). At any time during the period beginning after the
Holder’s receipt of a Major Transaction Notice and ending five (5) Trading Days prior to the consummation of such Major Transaction
(the “Early Termination Period”), the Holder may require the Company to redeem (an “Early Termination Upon Major
Transaction”) all or any portion of this Warrant (without taking into consideration the 9.98% Cap) by delivering written
notice thereof (“Major Transaction Early Termination Notice”) to the Company, which Major Transaction Early Termination
Notice shall indicate the portion of the principal amount (the “Early Termination Principal Amount”) of the Warrant
that the Holder is electing to have redeemed. The portion of this Warrant subject to early termination pursuant to this Section 5(c)(iii)
(the “Redeemable Shares”), shall be redeemed by the Company at a price (the “Major Transaction Warrant Early
Termination Price”) payable in cash equal to the Black Scholes Value of the Redeemable Shares determined by use of the Black
Scholes Option Pricing Model using the criteria set forth in Schedule 1 hereto (the “Black Scholes Value”).
At any time during the
Early Termination Period, the Holder may require the Company to treat all or any portion of this Warrant eligible to be treated
as a Successor Redemption (without taking into consideration the 9.98% Cap) as a Successor Redemption by delivering written notice
thereof (a “Successor Redemption Notice”) to the Company, which Successor Redemption Notice shall indicate the portion
of the principal amount of the Warrant that the Holder is electing to have treated as a Successor Redemption. The portion of this
Warrant subject to Successor redemption pursuant to this Section 5(c)(iii) (the “Successor Redemption Shares”), shall
be converted upon consummation of such Major Transaction into the number of securities of the Successor Entity (the “Successor
Redemption Shares”) that would be issuable under the terms of such Major Transaction in respect of a number of shares of
Common Stock equal to the Black Scholes Share Amount.
(iv) Escrow; Payment
of Major Transaction Warrant Early Termination Price. Following the receipt of a Major Transaction Early Termination Notice
from the Holder, the Company shall not effect a Major Transaction that is being treated as an early termination unless (a) the
definitive documentation governing such Major Transaction provides that it shall be a condition precedent to the consummation of
such Major Transaction that the Holder be issued or paid, as the case may be, an amount in shares of Common Stock or cash, as applicable,
equal to the Major Transaction Warrant Early Termination Price and/or applicable Exercise Shares or (b) it shall first place
into an escrow account with an independent escrow agent, at least three (3) business days prior to the closing date of the
Major Transaction (the “Major Transaction Escrow Deadline”), an amount in shares of Common Stock (or irrevocable instructions
to the Transfer Agent to issue such shares) or cash, as applicable, equal to the Major Transaction Warrant Early Termination Price
and/or applicable Exercise Shares. Concurrently upon closing of such Major Transaction, the Company shall pay or shall instruct
the escrow agent to pay the Major Transaction Warrant Early Termination Price and/or to deliver the applicable Exercise Shares
to the Holder. For purposes of determining the amount required to be placed in escrow pursuant to the provisions of this subsection
(iv) and without affecting the amount of the actual Major Transaction Warrant Early Termination Price and/or applicable Exercise
Shares, the calculation of the price referred to in clause (1) of the first column of Schedule 1 hereto with respect
to Stock Price shall be determined based on the Closing Market Price (as defined on Schedule I) of the Common Stock on the
Trading Day immediately preceding the date that the funds and/or applicable Exercise Shares, as applicable, are deposited with
the escrow agent.
Following the receipt of a Successor Redemption
Notice, the Company shall not effect the applicable Major Transaction unless the definitive documentation governing such Major
Transaction includes an obligation by the Successor Entity to issue the Successor Redemption Shares to the Holder upon consummation
of the Major Transaction and designates the Holder as an express third party beneficiary of such obligation.
(v) Injunction.
Following the receipt of a Major Transaction Early Termination Notice from the Holder, in the event that the Company attempts to
consummate a Major Transaction without either placing the Major Transaction Warrant Early Termination Price or applicable Exercise
Shares, as applicable, in escrow in accordance with subsection (iv) above or without payment of the Major Transaction Warrant Early
Termination Price or issuance of the applicable Exercise Shares, as applicable, to the Holder prior to consummation of such Major
Transaction, or without providing for the issuance of Successor Redemption Shares in accordance with Section 5(c) above, as applicable,
the Holder shall have the right to apply for an injunction in any state or federal courts sitting in the City of New York, borough
of Manhattan to prevent the closing of such Major Transaction until the Major Transaction Warrant Early Termination Price is paid
to the Holder, in full, the applicable Exercise Shares are delivered or the issuance of the Successor Redemption Shares is provided
for, as applicable.
An early termination required by this Section 5(c)
shall be made in accordance with the provisions of Section 12 and shall have priority to payments to holders of Common Stock
in connection with a Major Transaction to the extent an early termination required by this Section 5(c)(iii) are deemed or
determined by a court of competent jurisdiction to be prepayments of the Warrant by the Company, such early termination shall be
deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, until the Major Transaction Warrant
Early Termination Price is paid in full or the Successor Redemption Shares are fully issued, as applicable, this Warrant may be
exercised, in whole or in part, by the Holder into shares of Common Stock, or in the event the Exercise Date is after the consummation
of the Major Transaction or in the event of a Successor Redemption, shares of publicly traded common stock (or their equivalent)
of the Successor Entity pursuant to Section 5(c). The parties hereto agree that in the event of the Company’s early termination
of any portion of the Warrant under this Section 5(c), the Holder’s damages would be uncertain and difficult to estimate
because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable
substitute investment opportunity for the Holder. Accordingly, any premium due under this Section 5(c) is intended by the
parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not
as a penalty.
For purposes hereof:
“Cash-Out Major Transaction”
means a Major Transaction in which the consideration payable to holders of Common Stock in connection with the Major Transaction
consists solely of cash.
“Eligible Market” means the
OTCBB, the New York Stock Exchange, Inc., the NYSE Arca, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global
Select Market or the NYSE Alternext U.S.
“Mixed Major Transaction” means
a Major Transaction in which the consideration payable to the shareholders of the Company consists partially of cash and partially
of securities of a Successor Entity. If the Successor Entity is a Publicly Traded Successor Entity, the percentage of consideration
represented by securities of such Successor Entity shall be equal to the percentage that the value of the aggregate anticipated
number of shares of the Publicly Traded Successor Entity to be issued to holders of Common Stock of the Company represents in comparison
to the aggregate value of all consideration, including cash consideration, in such Mixed Major Transaction, as such values are
set forth in any definitive agreement for the Mixed Major Transaction that has been executed at the time of the first public announcement
of the Major Transaction or, if no such value is determinable from such definitive agreement, based on the closing market price
for shares of the Publicly Traded Successor Entity on its principal securities exchange on the Trading Day preceding the first
public announcement of the Mixed Major Transaction. If the Successor Entity is a Private Successor Entity, the percentage of consideration
represented by securities of such Successor Entity shall be determined in good-faith by the Company's Board of Directors
“Parent Entity” of a Person
means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security
is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity
with the largest public market capitalization as of the date of consummation of a Major Transaction.
“Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other
entity and a government or any department or agency thereof.
“Private Successor Entity”
means a Successor Entity that is not a Publicly Traded Successor Entity.
“Publicly Traded Successor Entity”
means a Successor Entity that is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible
Market (as defined above).
“Successor Entity” means any
Person purchasing the Company’s assets or Common Stock, or any successor entity resulting from such Major Transaction, or
if the Warrant is to be exercisable for shares of capital stock of its Parent Entity (as defined above), its Parent Entity.
(d) Exercise Price
Adjusted. As used in this Warrant, the term “Exercise Price” shall mean the purchase price per share specified
in Section 3(a) of this Warrant, until the occurrence of an event stated in this Section 5 or otherwise set forth in
this Warrant, and thereafter shall mean said price as adjusted from time to time in accordance with the provisions of said subsection.
No adjustment made pursuant to any provision of this Section 5 shall have the net effect of increasing the aggregate Exercise
Price in relation to the split adjusted and distribution adjusted price of the Common Stock.
(e) Adjustments: Additional
Shares, Securities or Assets. In the event that at any time, as a result of an adjustment made pursuant to this Section 5
or otherwise, Holder shall, upon Exercise of this Warrant, become entitled to receive shares and/or other securities or assets
(other than Common Stock) then, wherever appropriate, all references herein to shares of Common Stock shall be deemed to refer
to and include such shares and/or other securities or assets; and thereafter the number of such shares and/or other securities
or assets shall be subject to adjustment from time to time in a manner and upon terms as nearly equivalent as practicable to the
provisions of this Section 5.
(f) Notice of Adjustments.
Whenever the Exercise Price is adjusted pursuant to the terms of this Warrant, the Company shall promptly mail to the Holder a
notice (an “Exercise Price Adjustment Notice”) setting forth the Exercise Price after such adjustment and setting forth
a statement of the facts requiring such adjustment. The Company shall, upon the written request at any time of the Holder, furnish
to such Holder a like Warrant setting forth (i) such adjustment or readjustment, (ii) the Exercise Price at the time
in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or property which at
the time would be received upon Exercise of the Warrant. For purposes of clarification, whether or not the Company provides an
Exercise Price Adjustment Notice pursuant to this Section 5(f), upon the occurrence of any event that leads to an adjustment
of the Exercise Price, the Holder would be entitled to receive a number of Exercise Shares based upon the new Exercise Price, as
adjusted, for exercises occurring on or after the date of such adjustment, regardless of whether the Holder accurately refers to
the adjusted Exercise Price in the Exercise Form.
6. Fractional Interests.
No fractional shares or scrip representing
fractional shares shall be issuable upon the Exercise of this Warrant, but on Exercise of this Warrant, Holder may purchase only
a whole number of shares of Common Stock. If, on Exercise of this Warrant, Holder would be entitled to a fractional share of Common
Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares
of Common Stock issuable upon Exercise shall be the next higher whole number of shares.
7. Reservation of
Shares.
From and after the date hereof, the Company
shall at all times reserve for issuance such number of authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for the Exercise of this Warrant and payment of the Exercise Price. If
at any time the number of shares of Common Stock authorized and reserved for issuance is below the number of shares sufficient
for the Exercise of this Warrant (a “Share Authorization Failure”) (based on the Exercise Price in effect from time
to time), the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares,
including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company’s
obligations under this Section 7, in the case of an insufficient number of authorized shares, and using its best efforts to
obtain stockholder approval of an increase in such authorized number of shares. The Company covenants and agrees that upon the
Exercise of this Warrant, all shares of Common Stock issuable upon such Exercise shall be duly and validly issued, fully paid and
nonassessable and not subject to preemptive rights, rights of first refusal or similar rights of any Person.
8. Restrictions on
Transfer.
(a) Registration or
Exemption Required. This Warrant has been issued in a transaction exempt from the registration requirements of the Securities
Act by virtue of Regulation D and exempt from state registration or qualification under applicable state laws. None of the Warrant
or the Exercise Shares may be pledged, transferred, sold, assigned, hypothecated or otherwise disposed of except pursuant to an
effective registration statement or an exemption to the registration requirements of the Securities Act and applicable state laws
including, without limitation, a so-called “4(1) and a half” transaction.
(b) Assignment.
Should the Holder desire to sell, transfer, assign, pledge, hypothecate or otherwise dispose of this Warrant, in whole or in part;
the Holder shall deliver a written notice to Company, substantially in the form of the Assignment attached hereto as Exhibit B,
indicating the Person or Persons to whom the Warrant is requested to be assigned and the respective number of Warrant Shares to
be assigned to each assignee. The Company may permit the assignment upon such reasonable conditions as the Company may require,
including the delivery to the Company of an acceptable opinion of counsel as to the assignment’s qualification for an exemption
from registration. This Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors
and permitted assigns of the Holder.
(c) Representations
of the Holder. The right to acquire Common Stock or the Common Stock issuable upon exercise of the Holder’s rights contained
herein will be acquired for investment and not with a view to the sale or distribution of any part thereof, and the Holder has
no present intention of selling, transferring, assigning, pledging, hypothecating or otherwise disposing of this Warrant in any
public distribution of the same except pursuant to a registration or exemption. Holder is an “accredited investor”
within the meaning of the Securities and Exchange Commission’s Rule 501 of Regulation D, as presently in effect. The Holder
understands (i) that the Common Stock issuable upon exercise of the Holder’s rights contained herein is not registered under
the Securities Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant
will be exempt from the registration and qualifications requirements thereof and (ii) that the Company’s reliance on such
exemption is predicated on the representations set forth in this Section 8(c). The Holder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and risks of its investment and has the ability to bear
the economic risks of its investment.
9. Noncircumvention.
The Company hereby covenants and agrees
that the Company will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of
assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry
out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting
the generality of the foregoing, the Company (i) shall not increase the par value of any shares of Common Stock receivable
upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant.
10. Benefits of this
Warrant.
Nothing in this Warrant shall be construed
to confer upon any person other than the Company and Holder any legal or equitable right, remedy or claim under this Warrant and
this Warrant shall be for the sole and exclusive benefit of the Company and Holder.
11. Governing Law.
All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of California, without regard to the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the state and federal courts sitting in Los Angeles, California. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in such city for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. The parties hereby waive all rights to a trial by jury. If either party shall commence an action or proceeding to enforce
any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.
12. Loss of Warrant.
Upon receipt by the Company of evidence
of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of indemnity or
security reasonably satisfactory to the Company, and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver a new Warrant of like tenor and date.
13. Notice or Demands.
Notices or demands pursuant to this Warrant
to be given or made by Holder to or on the Company shall be sufficiently given or made if sent by certified or registered mail,
return receipt requested, postage prepaid, and addressed, until another address is designated in writing by the Company, to the
address set forth in Section 2(a) above. Notices or demands pursuant to this Warrant to be given or made by the Company to
or on Holder shall be sufficiently given or made if sent by certified or registered mail, return receipt requested, postage prepaid,
and addressed, to the address of Holder set forth in the Company’s records, until another address is designated in writing
by Holder.
IN WITNESS WHEREOF, the undersigned has
executed this Warrant as of the ___ day of ___, 2015.
|
CRYOPORT, INC. |
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By: |
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Robert S. Stefanovich |
|
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Chief Financial Officer |
EXHIBIT A
EXERCISE FORM FOR WARRANT
TO: [ ]
¨ |
Exercise |
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|
The undersigned hereby irrevocably exercises the attached warrant (the “Warrant”) with respect to shares of Common Stock (the “Common Stock”) of Cryoport, Inc., a Nevada corporation (the “Company”). |
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The undersigned hereby encloses $____ as payment of the Exercise Price. |
1. The undersigned
requests that any stock certificates for such shares be issued and, if applicable, a warrant representing any unexercised portion
hereof be issued, pursuant to the Warrant in the name of the undersigned and delivered to the undersigned at the address set forth
below.
2. Capitalized
terms used but not otherwise defined in this Exercise Form shall have the meaning ascribed thereto in the Warrant.
Dated: _______________
|
Signature |
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Print Name |
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Address |
NOTICE
The signature to the foregoing Exercise
Form must correspond to the name as written upon the face of the attached Warrant in every particular, without alteration or enlargement
or any change whatsoever.
EXHIBIT B
ASSIGNMENT
(To be executed
by the registered holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned
holder of the attached warrant (the “Warrant”) hereby sells, assigns and transfers unto the person or persons below
named the right to purchase __________ shares of the Common Stock of Cryoport, Inc., a Nevada corporation, evidenced by the attached
Warrant and does hereby irrevocably constitute and appoint __________ attorney to transfer the said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated: ___________________ |
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Signature |
Fill in for new registration of
Warrant:
|
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Name |
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|
|
|
Address |
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|
|
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Please print name and address of assignee |
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(including zip code number) |
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NOTICE
The signature to the foregoing Assignment
must correspond to the name as written upon the face of the attached Warrant in every particular, without alteration or enlargement
or any change whatsoever.
Schedule 1
Black-Scholes
Value
Calculation Under Section 5(c)(iii) |
|
|
Remaining Term |
Number of calendar
days from date of public announcement of the Major Transaction after commencement of the Exercise Period until the last date
on which the Warrant may be exercised. |
|
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Interest Rate |
A risk-free interest
rate corresponding to the US$ LIBOR/Swap rate for a period equal to the Remaining Term. |
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Volatility |
If the first public announcement
of the Major
Transaction is made at or
prior to 4:00 p.m., New
York City time, the arithmetic
mean of the historical
volatility for the 10, 30
and 50 Trading Day periods
ending on the date of such
first public
announcement, obtained from
the HVT or similar
function on Bloomberg.
If the first public announcement
of the Major
Transaction is made after
4:00 p.m., New York City
time, the arithmetic mean
of the historical volatility for the
10, 30 and 50 Trading Day
periods ending on the
next succeeding Trading
Day following the date of
such first public announcement,
obtained from the
HVT or similar function
on Bloomberg.
|
|
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Stock Price |
The greater of (1) the
closing price of the Common Stock on the OTCBB, or, if that is not the principal trading market for the Common Stock, such
principal market on which the Common Stock is traded or listed (the “Closing Market Price”) on the trading day
immediately preceding the date on which a Major Transaction is consummated, (2) the first Closing Market Price following
the first public announcement of a Major Transaction, or (3) the Closing Market Price as of the date immediately preceding
the first public announcement of the Major Transaction. |
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Dividends |
Zero. |
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Strike Price |
Exercise Price as defined
in section 3(a). |
Exhibit 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED
UNLESS (I) A REGISTRATION STATEMENT REGISTERING SUCH SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE, OR (II) AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND OR QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES
A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED.
Warrant to Purchase |
|
________ shares |
Warrant Number 2015 ___________ |
Warrant to Purchase Common Stock
of
CRYOPORT, INC.
THIS CERTIFIES that __________ or any subsequent
holder hereof (“Holder”) has the right to purchase from Cryoport, Inc., a Nevada corporation, (the “Company”),
__________________ fully paid and nonassessable shares of the Company’s common stock, $0.001 par value per share (“Common
Stock”), subject to adjustment as provided herein, at a price equal to the Exercise Price as defined in Section 3 below at
any time during the Exercise Period (as defined below).
Holder agrees with the Company that this
Warrant to Purchase Common Stock of the Company (this “Warrant” or this “Agreement”) is issued and all
rights hereunder shall be held subject to all of the conditions, limitations and provisions set forth herein.
This Warrant is being issued to Holder
in consideration for agreeing to amend and restate that certain Simple Interest Commercial Promissory Note issued by Cryoport Systems,
Inc., a California corporation, to Holder originally issued on or about March 1, 2005, as amended and restated pursuant to that
certain Letter of Investment Intent dated on or about the date that the term of this Warrant begins (the “Note”).
1. Term and Restriction
on Exercise.
The term of this Warrant begins on March
2, 2015 and the rights under this Warrant expire at 5:00 p.m., Pacific Time, on March 1, 2020 (such period of exercise is referred
to herein as the “Term”).
Notwithstanding anything herein to the
contrary, the Company shall not issue to the Holder, and the Holder may not acquire, a number of shares of Common Stock upon exercise
of this Warrant to the extent that, upon such exercise, the number of shares of Common Stock then beneficially owned by the Holder
and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with the Holder’s
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including
shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the
ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar
to the limitation set forth herein) would exceed 9.98% of the total number of shares of Common Stock then issued and outstanding
(the “9.98% Cap”), provided that the 9.98% Cap shall only apply to the extent that the Common Stock is deemed to constitute
an “equity security” pursuant to Rule 13d-1(i) promulgated under the Exchange Act. For purposes hereof, “group”
has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Securities and Exchange Commission
(the “SEC”), and the percentage held by the Holder shall be determined in a manner consistent with the provisions of
Section 13(d) of the Exchange Act. Upon the written request of the Holder, the Company shall, within two (2) Trading Days,
confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
“Trading Day” means a day on
which any stock exchange on which the Common Stock is listed is open for the transaction of business.
“Affiliate” means any person
or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act of 1933, as amended (the
“Securities Act”). With respect to a Holder of Warrants, any investment fund or managed account that is managed on
a discretionary basis by the same investment manager as such Holder will be deemed to be an Affiliate of such Holder.
2. Exercise.
(a) Manner of Exercise.
During the Term (the “Exercise Period”), this Warrant may be Exercised as to all or any lesser number of whole shares
of Common Stock covered hereby (the “Warrant Shares” or the “Shares”) upon surrender of this Warrant, with
the Exercise Form attached hereto as Exhibit A (the “Exercise Form”) duly completed and executed, together
with the full Exercise Price for each share of Common Stock as to which this Warrant is Exercised, at the office of the Company,
Cryoport, Inc., 20382 Barents Sea Circle, Lake Forest, California 92630; Fax: (949) 470-2306, with an electronic copy (for informational
purposes only, and not constituting delivery hereunder) to: stockadministrator@cryoport.com, or at such other office or agency
as the Company may designate in writing, by overnight mail, with an advance copy of the Exercise Form sent to the Company by facsimile
(such surrender and payment of the Exercise Price hereinafter called the “Exercise” of this Warrant).
(b) Date of Exercise.
The “Date of Exercise” of the Warrant shall be defined as the later of (A) the date that the Exercise Form attached
hereto as Exhibit A, completed and executed, is sent by facsimile or email to the Company, provided that the original Warrant
and Exercise Form are received by the Company, each as soon as practicable thereafter (or, the date the original Exercise Form
is received by the Company, if Holder has not sent advance notice by facsimile) and (B) the date that the Exercise Price is received
by the Company.
(c) Delivery of Common
Stock Upon Exercise. Within three (3) business days after any Date of Exercise, the Company shall issue and deliver (or cause
its transfer agent to issue and deliver) in accordance with the terms hereof to or upon the order of the Holder that number of
shares of Common Stock (“Exercise Shares”) for the portion of this Warrant exercised as shall be determined in accordance
herewith. Upon the Exercise of this Warrant or any part hereof, the Company shall, at its own cost and expense, take all necessary
action, including obtaining and delivering an opinion of counsel, to assure that the transfer agent shall issue stock certificates
in the name of Holder (or its nominee) or such other persons as designated by Holder and in such denominations to be specified
at Exercise representing the number of shares of Common Stock issuable upon such Exercise.
(d) Delivery Failure.
In addition to any other remedies that may be available to the Holder, in the event that the Company fails for any reason to effect
delivery of the Exercise Shares by the end of the Delivery Period (a “Delivery Failure”), the Holder will be entitled
to revoke all or part of the relevant Exercise Form by delivery of a notice to such effect to the Company via facsimile or email
not later than three (3) Trading Days after the end of the Delivery Period, whereupon the Company and the Holder shall each be
restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described
herein shall be payable through the date notice of revocation or rescission is given to the Company.
(e) Restrictive Legend.
The Holder understands that the Exercise Shares will be issued pursuant to a claimed exemption from registration under the Securities
Act and thus the certificate for the Exercise Shares will bear a restrictive legend in substantially the following form (and a
stop-transfer order will be placed against transfer of the certificates for such securities):
“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT INCLUDING,
WITHOUT LIMITATION, PURSUANT TO RULES 144 OR 144A UNDER SAID ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL
OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4(1) AND A HALF” SALE.”
(f) Cancellation of
Warrant. This Warrant shall be canceled upon the full Exercise of this Warrant and if this Warrant is not Exercised in full,
Holder shall be entitled to receive a new Warrant (containing terms identical to this Warrant) representing any unexercised portion
of this Warrant in addition to such Common Stock.
(g) Holder of Record.
Each person in whose name any Warrant for shares of Common Stock is issued shall, for all purposes, be deemed to be the Holder
of record of such shares on the Date of Exercise of this Warrant, irrespective of the date of delivery of the Common Stock purchased
upon the Exercise of this Warrant.
3. Payment of Warrant
Exercise Price.
(a) Exercise Price.
The Exercise Price (“Exercise Price”) shall initially equal $0.50 per share, subject to adjustment pursuant to the
terms hereof, including but not limited to Section 5 below. Payment of the Exercise Price may be made in cash, bank or cashier’s
check, wire transfer, or by the cancellation of any amount due under the Note.
(b) Dispute Resolution.
In the case of a dispute as to the determination of the closing price of the Company’s Common Stock or the arithmetic calculation
of the Exercise Price, Market Price or any Major Transaction Warrant Early Termination Price, the Company shall submit the disputed
determinations or arithmetic calculations via facsimile within two (2) business days of receipt, or deemed receipt, of the Exercise
Notice or Major Transaction Early Termination Notice, or other event giving rise to such dispute, as the case may be, to the Holder.
If the Holder and the Company are unable to agree upon such determination or calculation within two (2) business days of such disputed
determination or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) business days submit
via facsimile (i) the disputed determination of the closing price or the Volume Weighted Average Price of the Company’s
Common Stock to an independent, reputable investment bank selected by the Company and approved by the Holder, which approval shall
not be unreasonably withheld or (ii) the disputed arithmetic calculation of the Exercise Price, Market Price or any Major
Transaction Warrant Early Termination Price to the Company’s independent, outside accountant. The Company shall cause the
investment bank or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and
the Holder of the results no later than five (5) business days from the time such investment bank or accountant, as the case may
be, receives the disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation,
as the case may be, shall be binding upon all parties absent demonstrable error.
4. Transfer Rights.
Subject to the provisions of Section 8 of this Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly completed and endorsed. This Warrant shall be canceled
upon such surrender and, as soon as practicable thereafter, the person to whom such transfer is made shall be entitled to receive
a new Warrant or Warrants as to the portion of this Warrant transferred, and Holder shall be entitled to receive a new Warrant
as to the portion hereof retained.
5. Adjustments Upon
Certain Events.
(a) Participation.
The Holder, as the holder of this Warrant, shall be entitled to receive such dividends paid and distributions of any kind made
to the holders of Common Stock of the Company to the same extent as if the Holder had Exercised this Warrant into Common Stock
(without regard to any limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of
shares are authorized and reserved to effect any such exercise and issuance) and had held such shares of Common Stock on the record
date for such dividends and distributions. Payments under the preceding sentence shall be made concurrently with the dividend or
distribution to the holders of Common Stock.
(b) Recapitalization
or Reclassification. If the Company shall at any time effect a stock split, payment of stock dividend, recapitalization, reclassification
or other similar transaction of such character that the shares of Common Stock shall be changed into or become exchangeable for
a larger or smaller number of shares, then upon the effective date thereof, the number of shares of Common Stock which Holder shall
be entitled to purchase upon Exercise of this Warrant shall be increased or decreased, as the case may be, in direct proportion
to the increase or decrease in the number of shares of Common Stock by reason of such stock split, payment of stock dividend, recapitalization,
reclassification or similar transaction, and the Exercise Price shall be, in the case of an increase in the number of shares, proportionally
decreased and, in the case of decrease in the number of shares, proportionally increased. The Company shall give Holder the same
notice it provides to holders of Common Stock of any transaction described in this Section 5(b).
(c) Rights Upon Major
Transaction.
(i) Major Transaction. In the event
that a Major Transaction (as defined below) occurs, then (1) in the case of a Cash-Out Major Transaction and in the case of a Mixed
Major Transaction to the extent of the percentage of the cash consideration in the Mixed Major Transaction (determined in accordance
with the definition of a Mixed Major Transaction below), the Holder, at its option, may require the Company to redeem the Holder’s
outstanding Warrants in accordance with Section 5(c)(iii) below, and (2) in the case of a transaction with a Publicly Traded
Successor Entity covered by the provisions of Section 5(c)(i)(A) below in which the Company is not the surviving entity (a “Successor
Redemption Transaction”) and in the case of a Mixed Major Transaction that is a Successor Redemption Transaction, to the
extent of the percentage of the consideration represented by securities of a Publicly Traded Successor Entity, the Holder may require
this Warrant to be treated as a Successor Redemption in accordance with Section 5(c)(iii) below. In the event the Holder shall
not have exercised any of its rights under clauses (1) or (2) above within the applicable time periods set forth herein, then the
Major Transaction shall be treated as an Assumption (as defined below) in accordance with Section 5(c)(ii) below unless the Holder
waives its rights under this Section 5(c) with respect to such Major Transaction. Each of the following events shall constitute
a “Major Transaction”:
(A) a consolidation,
merger, exchange of shares, recapitalization, reorganization, business combination or other similar event, (1) following which
the holders of Common Stock immediately preceding such consolidation, merger, exchange, recapitalization, reorganization, combination
or event either (a) no longer hold a majority of the shares of Common Stock or (b) no longer have the ability to elect
a majority of the board of directors of the Company or (2) as a result of which shares of Common Stock shall be changed into
(or the shares of Common Stock become entitled to receive) the same or a different number of shares of the same or another class
or classes of stock or securities of another entity (collectively, a “Change of Control Transaction”);
(B) the sale or transfer,
in one transaction or in a series of related transactions, of significant assets of the Company which, without limitation, shall
include, but not be limited to, a sale or transfer, in one transaction or in a series of related transactions, of more than 50%
of the Company’s assets as reflected on its then latest publicly filed balance sheet (including proprietary rights), provided,
however, that except for a sale of all or substantially all of the Company’s assets, a collaborative arrangement, licensing
agreement, joint venture or partnership or similar business arrangement providing for the development or commercial exploitation
or, or right to develop or commercially exploit, the technology, intellectual property or products of the Company (including arrangements
that involve the assignment or licensing of any existing or newly developed intellectual property under such arrangements) whereby
income or profits are to be shared (including by lump sum royalty or running royalty) with any other entity shall not constitute
a Major Transaction;
(C) a purchase, tender
or exchange offer made to the holders of outstanding shares of Common Stock, such that following such purchase, tender or exchange
offer a Change of Control Transaction shall have occurred;
(D) the liquidation,
bankruptcy, insolvency, dissolution or winding-up (or the occurrence of any analogous proceeding) affecting the Company; or
(E) the shares of Common
Stock cease to be listed, traded or publicly quoted on the OTCBB, and are not promptly re-listed or requoted on either the New
York Stock Exchange, the NYSE Alternext U.S., the NASDAQ Global Select Market, the NASDAQ Capital Market or listed in the over
the counter market by the Financial Industry Regulatory Authority, Inc. or in the “pink sheets” by the Pink OTC Market,
Inc.
(ii) Assumption.
The Company shall not enter into or be party to a Major Transaction that is to be treated as an Assumption pursuant to Section
5(c)(i), unless (1) any Person purchasing the Company’s assets or Common Stock, or any successor entity resulting from such
Major Transaction (in each case, a “Successor Entity”), assumes in writing all of the obligations of the Company under
this Warrant, and (2) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder
prior to such Major Transaction, including agreements to deliver to each holder of Warrants in exchange for such Warrants a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Warrants, including,
without limitation, an instrument representing the appropriate number of shares of the Successor Entity, having similar exercise
rights as the Warrants (including but not limited to a similar Exercise Price and similar Exercise Price adjustment provisions
based on the price per share or conversion ratio to be received by the holders of Common Stock in the Major Transaction), satisfactory
to the Holder. Upon the occurrence of any Major Transaction, any Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Major Transaction, the provisions of this Warrant referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation
of the Major Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise
or redemption of this Warrant at any time after the consummation of the Major Transaction, in lieu of the shares of Common Stock
(or other securities, cash, assets or other property) issuable upon the exercise of the Warrants prior to such Major Transaction,
such shares of common stock (or their equivalent) of the Successor Entity, as adjusted in accordance with the provisions of this
Warrant. The provisions of this Section shall apply similarly and equally to successive Major Transactions and shall be applied
without regard to any limitations on the exercise of this Warrant other than any applicable beneficial ownership limitations. Any
assumption of Company obligations under this paragraph shall be referred to herein as an “Assumption.”
(iii) Notice; Major
Transaction Early Termination Right. At least thirty (30) days prior to the consummation of any Major Transaction, but, in
any event, on the first to occur of (x) the date of the public announcement of such Major Transaction if such announcement
is made before 4:00 p.m., New York City time, or (y) the day following the public announcement of such Major Transaction if
such announcement is made on and after 4:00 p.m., New York City time, the Company shall deliver written notice thereof via facsimile
and overnight courier to the Holder (a “Major Transaction Notice”). At any time during the period beginning after the
Holder’s receipt of a Major Transaction Notice and ending five (5) Trading Days prior to the consummation of such Major Transaction
(the “Early Termination Period”), the Holder may require the Company to redeem (an “Early Termination Upon Major
Transaction”) all or any portion of this Warrant (without taking into consideration the 9.98% Cap) by delivering written
notice thereof (“Major Transaction Early Termination Notice”) to the Company, which Major Transaction Early Termination
Notice shall indicate the portion of the principal amount (the “Early Termination Principal Amount”) of the Warrant
that the Holder is electing to have redeemed. The portion of this Warrant subject to early termination pursuant to this Section 5(c)(iii)
(the “Redeemable Shares”), shall be redeemed by the Company at a price (the “Major Transaction Warrant Early
Termination Price”) payable in cash equal to the Black Scholes Value of the Redeemable Shares determined by use of the Black
Scholes Option Pricing Model using the criteria set forth in Schedule 1 hereto (the “Black Scholes Value”).
At any time during the
Early Termination Period, the Holder may require the Company to treat all or any portion of this Warrant eligible to be treated
as a Successor Redemption (without taking into consideration the 9.98% Cap) as a Successor Redemption by delivering written notice
thereof (a “Successor Redemption Notice”) to the Company, which Successor Redemption Notice shall indicate the portion
of the principal amount of the Warrant that the Holder is electing to have treated as a Successor Redemption. The portion of this
Warrant subject to Successor redemption pursuant to this Section 5(c)(iii) (the “Successor Redemption Shares”), shall
be converted upon consummation of such Major Transaction into the number of securities of the Successor Entity (the “Successor
Redemption Shares”) that would be issuable under the terms of such Major Transaction in respect of a number of shares of
Common Stock equal to the Black Scholes Share Amount.
(iv) Escrow; Payment
of Major Transaction Warrant Early Termination Price. Following the receipt of a Major Transaction Early Termination Notice
from the Holder, the Company shall not effect a Major Transaction that is being treated as an early termination unless (a) the
definitive documentation governing such Major Transaction provides that it shall be a condition precedent to the consummation of
such Major Transaction that the Holder be issued or paid, as the case may be, an amount in shares of Common Stock or cash, as applicable,
equal to the Major Transaction Warrant Early Termination Price and/or applicable Exercise Shares or (b) it shall first place
into an escrow account with an independent escrow agent, at least three (3) business days prior to the closing date of the
Major Transaction (the “Major Transaction Escrow Deadline”), an amount in shares of Common Stock (or irrevocable instructions
to the Transfer Agent to issue such shares) or cash, as applicable, equal to the Major Transaction Warrant Early Termination Price
and/or applicable Exercise Shares. Concurrently upon closing of such Major Transaction, the Company shall pay or shall instruct
the escrow agent to pay the Major Transaction Warrant Early Termination Price and/or to deliver the applicable Exercise Shares
to the Holder. For purposes of determining the amount required to be placed in escrow pursuant to the provisions of this subsection
(iv) and without affecting the amount of the actual Major Transaction Warrant Early Termination Price and/or applicable Exercise
Shares, the calculation of the price referred to in clause (1) of the first column of Schedule 1 hereto with respect
to Stock Price shall be determined based on the Closing Market Price (as defined on Schedule I) of the Common Stock on the
Trading Day immediately preceding the date that the funds and/or applicable Exercise Shares, as applicable, are deposited with
the escrow agent.
Following the receipt of a Successor Redemption
Notice, the Company shall not effect the applicable Major Transaction unless the definitive documentation governing such Major
Transaction includes an obligation by the Successor Entity to issue the Successor Redemption Shares to the Holder upon consummation
of the Major Transaction and designates the Holder as an express third party beneficiary of such obligation.
(v) Injunction.
Following the receipt of a Major Transaction Early Termination Notice from the Holder, in the event that the Company attempts to
consummate a Major Transaction without either placing the Major Transaction Warrant Early Termination Price or applicable Exercise
Shares, as applicable, in escrow in accordance with subsection (iv) above or without payment of the Major Transaction Warrant Early
Termination Price or issuance of the applicable Exercise Shares, as applicable, to the Holder prior to consummation of such Major
Transaction, or without providing for the issuance of Successor Redemption Shares in accordance with Section 5(c) above, as applicable,
the Holder shall have the right to apply for an injunction in any state or federal courts sitting in the City of New York, borough
of Manhattan to prevent the closing of such Major Transaction until the Major Transaction Warrant Early Termination Price is paid
to the Holder, in full, the applicable Exercise Shares are delivered or the issuance of the Successor Redemption Shares is provided
for, as applicable.
An early termination required by this Section 5(c)
shall be made in accordance with the provisions of Section 12 and shall have priority to payments to holders of Common Stock
in connection with a Major Transaction to the extent an early termination required by this Section 5(c)(iii) are deemed or
determined by a court of competent jurisdiction to be prepayments of the Warrant by the Company, such early termination shall be
deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, until the Major Transaction Warrant
Early Termination Price is paid in full or the Successor Redemption Shares are fully issued, as applicable, this Warrant may be
exercised, in whole or in part, by the Holder into shares of Common Stock, or in the event the Exercise Date is after the consummation
of the Major Transaction or in the event of a Successor Redemption, shares of publicly traded common stock (or their equivalent)
of the Successor Entity pursuant to Section 5(c). The parties hereto agree that in the event of the Company’s early termination
of any portion of the Warrant under this Section 5(c), the Holder’s damages would be uncertain and difficult to estimate
because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable
substitute investment opportunity for the Holder. Accordingly, any premium due under this Section 5(c) is intended by the
parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not
as a penalty.
For purposes hereof:
“Cash-Out Major Transaction”
means a Major Transaction in which the consideration payable to holders of Common Stock in connection with the Major Transaction
consists solely of cash.
“Eligible Market” means the
OTCBB, the New York Stock Exchange, Inc., the NYSE Arca, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global
Select Market or the NYSE Alternext U.S.
“Mixed Major Transaction” means
a Major Transaction in which the consideration payable to the shareholders of the Company consists partially of cash and partially
of securities of a Successor Entity. If the Successor Entity is a Publicly Traded Successor Entity, the percentage of consideration
represented by securities of such Successor Entity shall be equal to the percentage that the value of the aggregate anticipated
number of shares of the Publicly Traded Successor Entity to be issued to holders of Common Stock of the Company represents in comparison
to the aggregate value of all consideration, including cash consideration, in such Mixed Major Transaction, as such values are
set forth in any definitive agreement for the Mixed Major Transaction that has been executed at the time of the first public announcement
of the Major Transaction or, if no such value is determinable from such definitive agreement, based on the closing market price
for shares of the Publicly Traded Successor Entity on its principal securities exchange on the Trading Day preceding the first
public announcement of the Mixed Major Transaction. If the Successor Entity is a Private Successor Entity, the percentage of consideration
represented by securities of such Successor Entity shall be determined in good-faith by the Company's Board of Directors
“Parent Entity” of a Person
means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security
is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity
with the largest public market capitalization as of the date of consummation of a Major Transaction.
“Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other
entity and a government or any department or agency thereof.
“Private Successor Entity”
means a Successor Entity that is not a Publicly Traded Successor Entity.
“Publicly Traded Successor Entity”
means a Successor Entity that is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible
Market (as defined above).
“Successor Entity” means any
Person purchasing the Company’s assets or Common Stock, or any successor entity resulting from such Major Transaction, or
if the Warrant is to be exercisable for shares of capital stock of its Parent Entity (as defined above), its Parent Entity.
(d) Exercise Price
Adjusted. As used in this Warrant, the term “Exercise Price” shall mean the purchase price per share specified
in Section 3(a) of this Warrant, until the occurrence of an event stated in this Section 5 or otherwise set forth in
this Warrant, and thereafter shall mean said price as adjusted from time to time in accordance with the provisions of said subsection.
No adjustment made pursuant to any provision of this Section 5 shall have the net effect of increasing the aggregate Exercise
Price in relation to the split adjusted and distribution adjusted price of the Common Stock.
(e) Adjustments: Additional
Shares, Securities or Assets. In the event that at any time, as a result of an adjustment made pursuant to this Section 5
or otherwise, Holder shall, upon Exercise of this Warrant, become entitled to receive shares and/or other securities or assets
(other than Common Stock) then, wherever appropriate, all references herein to shares of Common Stock shall be deemed to refer
to and include such shares and/or other securities or assets; and thereafter the number of such shares and/or other securities
or assets shall be subject to adjustment from time to time in a manner and upon terms as nearly equivalent as practicable to the
provisions of this Section 5.
(f) Notice of Adjustments.
Whenever the Exercise Price is adjusted pursuant to the terms of this Warrant, the Company shall promptly mail to the Holder a
notice (an “Exercise Price Adjustment Notice”) setting forth the Exercise Price after such adjustment and setting forth
a statement of the facts requiring such adjustment. The Company shall, upon the written request at any time of the Holder, furnish
to such Holder a like Warrant setting forth (i) such adjustment or readjustment, (ii) the Exercise Price at the time
in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or property which at
the time would be received upon Exercise of the Warrant. For purposes of clarification, whether or not the Company provides an
Exercise Price Adjustment Notice pursuant to this Section 5(f), upon the occurrence of any event that leads to an adjustment
of the Exercise Price, the Holder would be entitled to receive a number of Exercise Shares based upon the new Exercise Price, as
adjusted, for exercises occurring on or after the date of such adjustment, regardless of whether the Holder accurately refers to
the adjusted Exercise Price in the Exercise Form.
6. Fractional Interests.
No fractional shares or scrip representing
fractional shares shall be issuable upon the Exercise of this Warrant, but on Exercise of this Warrant, Holder may purchase only
a whole number of shares of Common Stock. If, on Exercise of this Warrant, Holder would be entitled to a fractional share of Common
Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares
of Common Stock issuable upon Exercise shall be the next higher whole number of shares.
7. Reservation of
Shares.
From and after the date hereof, the Company
shall at all times reserve for issuance such number of authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for the Exercise of this Warrant and payment of the Exercise Price. If
at any time the number of shares of Common Stock authorized and reserved for issuance is below the number of shares sufficient
for the Exercise of this Warrant (a “Share Authorization Failure”) (based on the Exercise Price in effect from time
to time), the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares,
including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company’s
obligations under this Section 7, in the case of an insufficient number of authorized shares, and using its best efforts to
obtain stockholder approval of an increase in such authorized number of shares. The Company covenants and agrees that upon the
Exercise of this Warrant, all shares of Common Stock issuable upon such Exercise shall be duly and validly issued, fully paid and
nonassessable and not subject to preemptive rights, rights of first refusal or similar rights of any Person.
8. Restrictions on
Transfer.
(a) Registration or
Exemption Required. This Warrant has been issued in a transaction exempt from the registration requirements of the Securities
Act by virtue of Regulation D and exempt from state registration or qualification under applicable state laws. None of the Warrant
or the Exercise Shares may be pledged, transferred, sold, assigned, hypothecated or otherwise disposed of except pursuant to an
effective registration statement or an exemption to the registration requirements of the Securities Act and applicable state laws
including, without limitation, a so-called “4(1) and a half” transaction.
(b) Assignment.
Should the Holder desire to sell, transfer, assign, pledge, hypothecate or otherwise dispose of this Warrant, in whole or in part;
the Holder shall deliver a written notice to Company, substantially in the form of the Assignment attached hereto as Exhibit B,
indicating the Person or Persons to whom the Warrant is requested to be assigned and the respective number of Warrant Shares to
be assigned to each assignee. The Company may permit the assignment upon such reasonable conditions as the Company may require,
including the delivery to the Company of an acceptable opinion of counsel as to the assignment’s qualification for an exemption
from registration. This Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors
and permitted assigns of the Holder.
(c) Representations
of the Holder. The right to acquire Common Stock or the Common Stock issuable upon exercise of the Holder’s rights contained
herein will be acquired for investment and not with a view to the sale or distribution of any part thereof, and the Holder has
no present intention of selling, transferring, assigning, pledging, hypothecating or otherwise disposing of this Warrant in any
public distribution of the same except pursuant to a registration or exemption. Holder is an “accredited investor”
within the meaning of the Securities and Exchange Commission’s Rule 501 of Regulation D, as presently in effect. The Holder
understands (i) that the Common Stock issuable upon exercise of the Holder’s rights contained herein is not registered under
the Securities Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant
will be exempt from the registration and qualifications requirements thereof and (ii) that the Company’s reliance on such
exemption is predicated on the representations set forth in this Section 8(c). The Holder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and risks of its investment and has the ability to bear
the economic risks of its investment.
9. Noncircumvention.
The Company hereby covenants and agrees
that the Company will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of
assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry
out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting
the generality of the foregoing, the Company (i) shall not increase the par value of any shares of Common Stock receivable
upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant.
10. Benefits of this
Warrant.
Nothing in this Warrant shall be construed
to confer upon any person other than the Company and Holder any legal or equitable right, remedy or claim under this Warrant and
this Warrant shall be for the sole and exclusive benefit of the Company and Holder.
11. Governing Law.
All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of California, without regard to the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the state and federal courts sitting in Los Angeles, California. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in such city for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. The parties hereby waive all rights to a trial by jury.
12. Loss of Warrant.
Upon receipt by the Company of evidence
of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of indemnity or
security reasonably satisfactory to the Company, and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver a new Warrant of like tenor and date.
13. Notice or Demands.
Notices or demands pursuant to this Warrant
to be given or made by Holder to or on the Company shall be sufficiently given or made if sent by certified or registered mail,
return receipt requested, postage prepaid, and addressed, until another address is designated in writing by the Company, to the
address set forth in Section 2(a) above. Notices or demands pursuant to this Warrant to be given or made by the Company to
or on Holder shall be sufficiently given or made if sent by certified or registered mail, return receipt requested, postage prepaid,
and addressed, to the address of Holder set forth in the Company’s records, until another address is designated in writing
by Holder.
14. Attorneys’ Fees.
In the event any legal action or other
proceeding is brought by one party against the other party to enforce any provision of this Warrant or in which the subject matter
of such legal action or other proceeding arises under, or is with respect to, the provisions of this Warrant, the prevailing party
in any such legal action or other proceeding is entitled to recover from the other party attorneys’ fees and costs associated
with defending or prosecuting such legal action or other proceeding, any appeal therefrom, and any ancillary or related proceedings.
IN WITNESS WHEREOF, the undersigned has
executed this Warrant as of the ___ day of March, 2015.
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CRYOPORT, INC. |
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By: |
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Name: |
Robert Stefanovich |
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Its: |
Chief Financial Officer |
EXHIBIT A
EXERCISE FORM FOR WARRANT
TO: [ ]
¨ |
Exercise |
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The undersigned hereby irrevocably exercises the attached warrant (the “Warrant”) with respect to shares of Common Stock (the “Common Stock”) of Cryoport, Inc., a Nevada corporation (the “Company”). |
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The undersigned hereby encloses $____ as payment of the Exercise Price. |
The undersigned hereby agrees to cancel $___________
of the amount due under the Note as payment of the Exercise Price.
1. The undersigned requests that any stock
certificates for such shares be issued and, if applicable, a warrant representing any unexercised portion hereof be issued, pursuant
to the Warrant in the name of the undersigned and delivered to the undersigned at the address set forth below.
2. Capitalized terms used but not otherwise
defined in this Exercise Form shall have the meaning ascribed thereto in the Warrant.
Dated: _______________
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Signature |
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Print Name |
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Address |
NOTICE
The signature to the foregoing Exercise Form must correspond
to the name as written upon the face of the attached Warrant in every particular, without alteration or enlargement or any change
whatsoever.
EXHIBIT B
ASSIGNMENT
(To be executed by the registered holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned holder of the attached warrant
(the “Warrant”) hereby sells, assigns and transfers unto the person or persons below named the right to purchase __________
shares of the Common Stock of Cryoport, Inc., a Nevada corporation, evidenced by the attached Warrant and does hereby irrevocably
constitute and appoint __________ attorney to transfer the said Warrant on the books of the Company, with full power of substitution
in the premises.
Dated: _____________ |
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Signature |
Fill in for new registration of Warrant:
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Name |
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Address |
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Please print name and address of assignee |
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(including zip code number) |
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NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of the attached Warrant in every particular, without alteration or enlargement or any change
whatsoever.
Schedule 1
Black-Scholes Value
Calculation Under Section 5(c)(iii) |
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Remaining Term |
Number of calendar days from date of public announcement of the Major Transaction after commencement of the Exercise Period until the last date on which the Warrant may be exercised. |
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Interest Rate |
A risk-free interest rate corresponding to the US$ LIBOR/Swap rate for a period equal to the Remaining Term. |
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Volatility |
If the first public announcement of the Major
Transaction is made at or prior to 4:00 p.m., New
York City time, the arithmetic mean of the historical
volatility for the 10, 30 and 50 Trading Day periods
ending on the date of such first public
announcement, obtained from the HVT or similar
function on Bloomberg.
If the first public announcement of the Major
Transaction is made after 4:00 p.m., New York City
time, the arithmetic mean of the historical volatility for the
10, 30 and 50 Trading Day periods ending on the
next succeeding Trading Day following the date of
such first public announcement, obtained from the
HVT or similar function on Bloomberg.
|
|
|
Stock Price |
The greater of (1) the closing price of the Common Stock on the OTCBB, or, if that is not the principal trading market for the Common Stock, such principal market on which the Common Stock is traded or listed (the “Closing Market Price”) on the trading day immediately preceding the date on which a Major Transaction is consummated, (2) the first Closing Market Price following the first public announcement of a Major Transaction, or (3) the Closing Market Price as of the date immediately preceding the first public announcement of the Major Transaction. |
|
|
Dividends |
Zero. |
|
|
Strike Price |
Exercise Price as defined in section 3(a). |
Exhibit 4.3
THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED
UNLESS (I) A REGISTRATION STATEMENT REGISTERING SUCH SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE, OR (II) AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND OR QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES
A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED.
Warrant to Purchase |
|
_______ shares |
Warrant Number 2015 - ________ |
Warrant to Purchase Common Stock
of
CRYOPORT, INC.
THIS CERTIFIES that _________ or any subsequent
holder hereof (“Holder”) has the right to purchase from Cryoport, Inc., a Nevada corporation, (the “Company”),
_________ fully paid and nonassessable shares of the Company’s common stock, $0.001 par value per share (“Common Stock”),
subject to adjustment as provided herein, at a price equal to the Exercise Price as defined in Section 3 below at any time during
the Exercise Period (as defined below).
Holder agrees with the Company that this
Warrant to Purchase Common Stock of the Company (this “Warrant” or this “Agreement”) is issued and all
rights hereunder shall be held subject to all of the conditions, limitations and provisions set forth herein.
This Warrant is being issued to Holder
in consideration for agreeing to amend and restate that certain Simple Interest Commercial Promissory Note issued by Cryoport Systems,
Inc., a California corporation, to Holder originally issued on or about March 1, 2005, as amended and restated pursuant to that
certain Letter of Investment Intent dated on or about the date that the term of this Warrant begins (the “Note”).
1. Term and Restriction
on Exercise.
The term of this Warrant begins on March
2, 2015 and the rights under this Warrant expire at 5:00 p.m., Pacific Time, on March 1, 2020 (such period of exercise is referred
to herein as the “Term”).
Notwithstanding anything herein to the
contrary, the Company shall not issue to the Holder, and the Holder may not acquire, a number of shares of Common Stock upon exercise
of this Warrant to the extent that, upon such exercise, the number of shares of Common Stock then beneficially owned by the Holder
and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with the Holder’s
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including
shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the
ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar
to the limitation set forth herein) would exceed 9.98% of the total number of shares of Common Stock then issued and outstanding
(the “9.98% Cap”), provided that the 9.98% Cap shall only apply to the extent that the Common Stock is deemed to constitute
an “equity security” pursuant to Rule 13d-1(i) promulgated under the Exchange Act. For purposes hereof, “group”
has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Securities and Exchange Commission
(the “SEC”), and the percentage held by the Holder shall be determined in a manner consistent with the provisions of
Section 13(d) of the Exchange Act. Upon the written request of the Holder, the Company shall, within two (2) Trading Days,
confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
“Trading Day” means a day on
which any stock exchange on which the Common Stock is listed is open for the transaction of business.
“Affiliate” means any person
or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act of 1933, as amended (the
“Securities Act”). With respect to a Holder of Warrants, any investment fund or managed account that is managed on
a discretionary basis by the same investment manager as such Holder will be deemed to be an Affiliate of such Holder.
2. Exercise.
(a) Manner of Exercise.
During the Term (the “Exercise Period”), this Warrant may be Exercised as to all or any lesser number of whole shares
of Common Stock covered hereby (the “Warrant Shares” or the “Shares”) upon surrender of this Warrant, with
the Exercise Form attached hereto as Exhibit A (the “Exercise Form”) duly completed and executed, together
with the full Exercise Price for each share of Common Stock as to which this Warrant is Exercised, at the office of the Company,
Cryoport, Inc., 20382 Barents Sea Circle, Lake Forest, California 92630; Fax: (949) 470-2306, with an electronic copy (for informational
purposes only, and not constituting delivery hereunder) to: stockadministrator@cryoport.com, or at such other office or agency
as the Company may designate in writing, by overnight mail, with an advance copy of the Exercise Form sent to the Company by facsimile
(such surrender and payment of the Exercise Price hereinafter called the “Exercise” of this Warrant).
(b) Date of Exercise.
The “Date of Exercise” of the Warrant shall be defined as the later of (A) the date that the Exercise Form attached
hereto as Exhibit A, completed and executed, is sent by facsimile or email to the Company, provided that the original Warrant
and Exercise Form are received by the Company, each as soon as practicable thereafter (or, the date the original Exercise Form
is received by the Company, if Holder has not sent advance notice by facsimile) and (B) the date that the Exercise Price is received
by the Company.
(c) Delivery of Common
Stock Upon Exercise. Within three (3) business days after any Date of Exercise, the Company shall issue and deliver (or cause
its transfer agent to issue and deliver) in accordance with the terms hereof to or upon the order of the Holder that number of
shares of Common Stock (“Exercise Shares”) for the portion of this Warrant exercised as shall be determined in accordance
herewith. Upon the Exercise of this Warrant or any part hereof, the Company shall, at its own cost and expense, take all necessary
action, including obtaining and delivering an opinion of counsel, to assure that the transfer agent shall issue stock certificates
in the name of Holder (or its nominee) or such other persons as designated by Holder and in such denominations to be specified
at Exercise representing the number of shares of Common Stock issuable upon such Exercise.
(d) Delivery Failure.
In addition to any other remedies that may be available to the Holder, in the event that the Company fails for any reason to effect
delivery of the Exercise Shares by the end of the Delivery Period (a “Delivery Failure”), the Holder will be entitled
to revoke all or part of the relevant Exercise Form by delivery of a notice to such effect to the Company via facsimile or email
not later than three (3) Trading Days after the end of the Delivery Period, whereupon the Company and the Holder shall each be
restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described
herein shall be payable through the date notice of revocation or rescission is given to the Company.
(e) Restrictive Legend.
The Holder understands that the Exercise Shares will be issued pursuant to a claimed exemption from registration under the Securities
Act and thus the certificate for the Exercise Shares will bear a restrictive legend in substantially the following form (and a
stop-transfer order will be placed against transfer of the certificates for such securities):
“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT INCLUDING,
WITHOUT LIMITATION, PURSUANT TO RULES 144 OR 144A UNDER SAID ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL
OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4(1) AND A HALF” SALE.”
(f) Cancellation of
Warrant. This Warrant shall be canceled upon the full Exercise of this Warrant and if this Warrant is not Exercised in full,
Holder shall be entitled to receive a new Warrant (containing terms identical to this Warrant) representing any unexercised portion
of this Warrant in addition to such Common Stock.
(g) Holder of Record.
Each person in whose name any Warrant for shares of Common Stock is issued shall, for all purposes, be deemed to be the Holder
of record of such shares on the Date of Exercise of this Warrant, irrespective of the date of delivery of the Common Stock purchased
upon the Exercise of this Warrant.
3. Payment of Warrant
Exercise Price.
(a) Exercise Price.
The Exercise Price (“Exercise Price”) shall initially equal $0.50 per share, subject to adjustment pursuant to the
terms hereof, including but not limited to Section 5 below. Payment of the Exercise Price may be made in cash, bank or cashier’s
check, wire transfer, or by the cancellation of any amount due under the Note.
(b) Dispute Resolution.
In the case of a dispute as to the determination of the closing price of the Company’s Common Stock or the arithmetic calculation
of the Exercise Price, Market Price or any Major Transaction Warrant Early Termination Price, the Company shall submit the disputed
determinations or arithmetic calculations via facsimile within two (2) business days of receipt, or deemed receipt, of the Exercise
Notice or Major Transaction Early Termination Notice, or other event giving rise to such dispute, as the case may be, to the Holder.
If the Holder and the Company are unable to agree upon such determination or calculation within two (2) business days of such disputed
determination or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) business days submit
via facsimile (i) the disputed determination of the closing price or the Volume Weighted Average Price of the Company’s
Common Stock to an independent, reputable investment bank selected by the Company and approved by the Holder, which approval shall
not be unreasonably withheld or (ii) the disputed arithmetic calculation of the Exercise Price, Market Price or any Major
Transaction Warrant Early Termination Price to the Company’s independent, outside accountant. The Company shall cause the
investment bank or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and
the Holder of the results no later than five (5) business days from the time such investment bank or accountant, as the case may
be, receives the disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation,
as the case may be, shall be binding upon all parties absent demonstrable error.
4. Transfer Rights.
Subject to the provisions of Section 8 of this Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly completed and endorsed. This Warrant shall be canceled
upon such surrender and, as soon as practicable thereafter, the person to whom such transfer is made shall be entitled to receive
a new Warrant or Warrants as to the portion of this Warrant transferred, and Holder shall be entitled to receive a new Warrant
as to the portion hereof retained.
5. Adjustments Upon
Certain Events.
(a) Participation.
The Holder, as the holder of this Warrant, shall be entitled to receive such dividends paid and distributions of any kind made
to the holders of Common Stock of the Company to the same extent as if the Holder had Exercised this Warrant into Common Stock
(without regard to any limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of
shares are authorized and reserved to effect any such exercise and issuance) and had held such shares of Common Stock on the record
date for such dividends and distributions. Payments under the preceding sentence shall be made concurrently with the dividend or
distribution to the holders of Common Stock.
(b) Recapitalization
or Reclassification. If the Company shall at any time effect a stock split, payment of stock dividend, recapitalization, reclassification
or other similar transaction of such character that the shares of Common Stock shall be changed into or become exchangeable for
a larger or smaller number of shares, then upon the effective date thereof, the number of shares of Common Stock which Holder shall
be entitled to purchase upon Exercise of this Warrant shall be increased or decreased, as the case may be, in direct proportion
to the increase or decrease in the number of shares of Common Stock by reason of such stock split, payment of stock dividend, recapitalization,
reclassification or similar transaction, and the Exercise Price shall be, in the case of an increase in the number of shares, proportionally
decreased and, in the case of decrease in the number of shares, proportionally increased. The Company shall give Holder the same
notice it provides to holders of Common Stock of any transaction described in this Section 5(b).
(c) Rights Upon Major
Transaction.
(i) Major Transaction. In the event
that a Major Transaction (as defined below) occurs, then (1) in the case of a Cash-Out Major Transaction and in the case of a Mixed
Major Transaction to the extent of the percentage of the cash consideration in the Mixed Major Transaction (determined in accordance
with the definition of a Mixed Major Transaction below), the Holder, at its option, may require the Company to redeem the Holder’s
outstanding Warrants in accordance with Section 5(c)(iii) below, and (2) in the case of a transaction with a Publicly Traded
Successor Entity covered by the provisions of Section 5(c)(i)(A) below in which the Company is not the surviving entity (a “Successor
Redemption Transaction”) and in the case of a Mixed Major Transaction that is a Successor Redemption Transaction, to the
extent of the percentage of the consideration represented by securities of a Publicly Traded Successor Entity, the Holder may require
this Warrant to be treated as a Successor Redemption in accordance with Section 5(c)(iii) below. In the event the Holder shall
not have exercised any of its rights under clauses (1) or (2) above within the applicable time periods set forth herein, then the
Major Transaction shall be treated as an Assumption (as defined below) in accordance with Section 5(c)(ii) below unless the Holder
waives its rights under this Section 5(c) with respect to such Major Transaction. Each of the following events shall constitute
a “Major Transaction”:
(A) a consolidation,
merger, exchange of shares, recapitalization, reorganization, business combination or other similar event, (1) following which
the holders of Common Stock immediately preceding such consolidation, merger, exchange, recapitalization, reorganization, combination
or event either (a) no longer hold a majority of the shares of Common Stock or (b) no longer have the ability to elect
a majority of the board of directors of the Company or (2) as a result of which shares of Common Stock shall be changed into
(or the shares of Common Stock become entitled to receive) the same or a different number of shares of the same or another class
or classes of stock or securities of another entity (collectively, a “Change of Control Transaction”);
(B) the sale or transfer,
in one transaction or in a series of related transactions, of significant assets of the Company which, without limitation, shall
include, but not be limited to, a sale or transfer, in one transaction or in a series of related transactions, of more than 50%
of the Company’s assets as reflected on its then latest publicly filed balance sheet (including proprietary rights), provided,
however, that except for a sale of all or substantially all of the Company’s assets, a collaborative arrangement, licensing
agreement, joint venture or partnership or similar business arrangement providing for the development or commercial exploitation
or, or right to develop or commercially exploit, the technology, intellectual property or products of the Company (including arrangements
that involve the assignment or licensing of any existing or newly developed intellectual property under such arrangements) whereby
income or profits are to be shared (including by lump sum royalty or running royalty) with any other entity shall not constitute
a Major Transaction;
(C) a purchase, tender
or exchange offer made to the holders of outstanding shares of Common Stock, such that following such purchase, tender or exchange
offer a Change of Control Transaction shall have occurred;
(D) the liquidation,
bankruptcy, insolvency, dissolution or winding-up (or the occurrence of any analogous proceeding) affecting the Company; or
(E) the shares of Common
Stock cease to be listed, traded or publicly quoted on the OTCBB, and are not promptly re-listed or requoted on either the New
York Stock Exchange, the NYSE Alternext U.S., the NASDAQ Global Select Market, the NASDAQ Capital Market or listed in the over
the counter market by the Financial Industry Regulatory Authority, Inc. or in the “pink sheets” by the Pink OTC Market,
Inc.
(ii) Assumption.
The Company shall not enter into or be party to a Major Transaction that is to be treated as an Assumption pursuant to Section
5(c)(i), unless (1) any Person purchasing the Company’s assets or Common Stock, or any successor entity resulting from such
Major Transaction (in each case, a “Successor Entity”), assumes in writing all of the obligations of the Company under
this Warrant, and (2) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder
prior to such Major Transaction, including agreements to deliver to each holder of Warrants in exchange for such Warrants a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Warrants, including,
without limitation, an instrument representing the appropriate number of shares of the Successor Entity, having similar exercise
rights as the Warrants (including but not limited to a similar Exercise Price and similar Exercise Price adjustment provisions
based on the price per share or conversion ratio to be received by the holders of Common Stock in the Major Transaction), satisfactory
to the Holder. Upon the occurrence of any Major Transaction, any Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Major Transaction, the provisions of this Warrant referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation
of the Major Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise
or redemption of this Warrant at any time after the consummation of the Major Transaction, in lieu of the shares of Common Stock
(or other securities, cash, assets or other property) issuable upon the exercise of the Warrants prior to such Major Transaction,
such shares of common stock (or their equivalent) of the Successor Entity, as adjusted in accordance with the provisions of this
Warrant. The provisions of this Section shall apply similarly and equally to successive Major Transactions and shall be applied
without regard to any limitations on the exercise of this Warrant other than any applicable beneficial ownership limitations. Any
assumption of Company obligations under this paragraph shall be referred to herein as an “Assumption.”
(iii) Notice; Major
Transaction Early Termination Right. At least thirty (30) days prior to the consummation of any Major Transaction, but, in
any event, on the first to occur of (x) the date of the public announcement of such Major Transaction if such announcement
is made before 4:00 p.m., New York City time, or (y) the day following the public announcement of such Major Transaction if
such announcement is made on and after 4:00 p.m., New York City time, the Company shall deliver written notice thereof via facsimile
and overnight courier to the Holder (a “Major Transaction Notice”). At any time during the period beginning after the
Holder’s receipt of a Major Transaction Notice and ending five (5) Trading Days prior to the consummation of such Major Transaction
(the “Early Termination Period”), the Holder may require the Company to redeem (an “Early Termination Upon Major
Transaction”) all or any portion of this Warrant (without taking into consideration the 9.98% Cap) by delivering written
notice thereof (“Major Transaction Early Termination Notice”) to the Company, which Major Transaction Early Termination
Notice shall indicate the portion of the principal amount (the “Early Termination Principal Amount”) of the Warrant
that the Holder is electing to have redeemed. The portion of this Warrant subject to early termination pursuant to this Section 5(c)(iii)
(the “Redeemable Shares”), shall be redeemed by the Company at a price (the “Major Transaction Warrant Early
Termination Price”) payable in cash equal to the Black Scholes Value of the Redeemable Shares determined by use of the Black
Scholes Option Pricing Model using the criteria set forth in Schedule 1 hereto (the “Black Scholes Value”).
At any time during the
Early Termination Period, the Holder may require the Company to treat all or any portion of this Warrant eligible to be treated
as a Successor Redemption (without taking into consideration the 9.98% Cap) as a Successor Redemption by delivering written notice
thereof (a “Successor Redemption Notice”) to the Company, which Successor Redemption Notice shall indicate the portion
of the principal amount of the Warrant that the Holder is electing to have treated as a Successor Redemption. The portion of this
Warrant subject to Successor redemption pursuant to this Section 5(c)(iii) (the “Successor Redemption Shares”), shall
be converted upon consummation of such Major Transaction into the number of securities of the Successor Entity (the “Successor
Redemption Shares”) that would be issuable under the terms of such Major Transaction in respect of a number of shares of
Common Stock equal to the Black Scholes Share Amount.
(iv) Escrow; Payment
of Major Transaction Warrant Early Termination Price. Following the receipt of a Major Transaction Early Termination Notice
from the Holder, the Company shall not effect a Major Transaction that is being treated as an early termination unless (a) the
definitive documentation governing such Major Transaction provides that it shall be a condition precedent to the consummation of
such Major Transaction that the Holder be issued or paid, as the case may be, an amount in shares of Common Stock or cash, as applicable,
equal to the Major Transaction Warrant Early Termination Price and/or applicable Exercise Shares or (b) it shall first place
into an escrow account with an independent escrow agent, at least three (3) business days prior to the closing date of the
Major Transaction (the “Major Transaction Escrow Deadline”), an amount in shares of Common Stock (or irrevocable instructions
to the Transfer Agent to issue such shares) or cash, as applicable, equal to the Major Transaction Warrant Early Termination Price
and/or applicable Exercise Shares. Concurrently upon closing of such Major Transaction, the Company shall pay or shall instruct
the escrow agent to pay the Major Transaction Warrant Early Termination Price and/or to deliver the applicable Exercise Shares
to the Holder. For purposes of determining the amount required to be placed in escrow pursuant to the provisions of this subsection
(iv) and without affecting the amount of the actual Major Transaction Warrant Early Termination Price and/or applicable Exercise
Shares, the calculation of the price referred to in clause (1) of the first column of Schedule 1 hereto with respect
to Stock Price shall be determined based on the Closing Market Price (as defined on Schedule I) of the Common Stock on the
Trading Day immediately preceding the date that the funds and/or applicable Exercise Shares, as applicable, are deposited with
the escrow agent.
Following the receipt of a Successor Redemption
Notice, the Company shall not effect the applicable Major Transaction unless the definitive documentation governing such Major
Transaction includes an obligation by the Successor Entity to issue the Successor Redemption Shares to the Holder upon consummation
of the Major Transaction and designates the Holder as an express third party beneficiary of such obligation.
(v) Injunction.
Following the receipt of a Major Transaction Early Termination Notice from the Holder, in the event that the Company attempts to
consummate a Major Transaction without either placing the Major Transaction Warrant Early Termination Price or applicable Exercise
Shares, as applicable, in escrow in accordance with subsection (iv) above or without payment of the Major Transaction Warrant Early
Termination Price or issuance of the applicable Exercise Shares, as applicable, to the Holder prior to consummation of such Major
Transaction, or without providing for the issuance of Successor Redemption Shares in accordance with Section 5(c) above, as applicable,
the Holder shall have the right to apply for an injunction in any state or federal courts sitting in the City of New York, borough
of Manhattan to prevent the closing of such Major Transaction until the Major Transaction Warrant Early Termination Price is paid
to the Holder, in full, the applicable Exercise Shares are delivered or the issuance of the Successor Redemption Shares is provided
for, as applicable.
An early termination required by this Section 5(c)
shall be made in accordance with the provisions of Section 12 and shall have priority to payments to holders of Common Stock
in connection with a Major Transaction to the extent an early termination required by this Section 5(c)(iii) are deemed or
determined by a court of competent jurisdiction to be prepayments of the Warrant by the Company, such early termination shall be
deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, until the Major Transaction Warrant
Early Termination Price is paid in full or the Successor Redemption Shares are fully issued, as applicable, this Warrant may be
exercised, in whole or in part, by the Holder into shares of Common Stock, or in the event the Exercise Date is after the consummation
of the Major Transaction or in the event of a Successor Redemption, shares of publicly traded common stock (or their equivalent)
of the Successor Entity pursuant to Section 5(c). The parties hereto agree that in the event of the Company’s early termination
of any portion of the Warrant under this Section 5(c), the Holder’s damages would be uncertain and difficult to estimate
because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable
substitute investment opportunity for the Holder. Accordingly, any premium due under this Section 5(c) is intended by the
parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not
as a penalty.
For purposes hereof:
“Cash-Out Major Transaction”
means a Major Transaction in which the consideration payable to holders of Common Stock in connection with the Major Transaction
consists solely of cash.
“Eligible Market” means the
OTCBB, the New York Stock Exchange, Inc., the NYSE Arca, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global
Select Market or the NYSE Alternext U.S.
“Mixed Major Transaction” means
a Major Transaction in which the consideration payable to the shareholders of the Company consists partially of cash and partially
of securities of a Successor Entity. If the Successor Entity is a Publicly Traded Successor Entity, the percentage of consideration
represented by securities of such Successor Entity shall be equal to the percentage that the value of the aggregate anticipated
number of shares of the Publicly Traded Successor Entity to be issued to holders of Common Stock of the Company represents in comparison
to the aggregate value of all consideration, including cash consideration, in such Mixed Major Transaction, as such values are
set forth in any definitive agreement for the Mixed Major Transaction that has been executed at the time of the first public announcement
of the Major Transaction or, if no such value is determinable from such definitive agreement, based on the closing market price
for shares of the Publicly Traded Successor Entity on its principal securities exchange on the Trading Day preceding the first
public announcement of the Mixed Major Transaction. If the Successor Entity is a Private Successor Entity, the percentage of consideration
represented by securities of such Successor Entity shall be determined in good-faith by the Company's Board of Directors
“Parent Entity” of a Person
means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security
is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity
with the largest public market capitalization as of the date of consummation of a Major Transaction.
“Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other
entity and a government or any department or agency thereof.
“Private Successor Entity”
means a Successor Entity that is not a Publicly Traded Successor Entity.
“Publicly Traded Successor Entity”
means a Successor Entity that is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible
Market (as defined above).
“Successor Entity” means any
Person purchasing the Company’s assets or Common Stock, or any successor entity resulting from such Major Transaction, or
if the Warrant is to be exercisable for shares of capital stock of its Parent Entity (as defined above), its Parent Entity.
(d) Exercise Price
Adjusted. As used in this Warrant, the term “Exercise Price” shall mean the purchase price per share specified
in Section 3(a) of this Warrant, until the occurrence of an event stated in this Section 5 or otherwise set forth in
this Warrant, and thereafter shall mean said price as adjusted from time to time in accordance with the provisions of said subsection.
No adjustment made pursuant to any provision of this Section 5 shall have the net effect of increasing the aggregate Exercise
Price in relation to the split adjusted and distribution adjusted price of the Common Stock.
(e) Adjustments: Additional
Shares, Securities or Assets. In the event that at any time, as a result of an adjustment made pursuant to this Section 5
or otherwise, Holder shall, upon Exercise of this Warrant, become entitled to receive shares and/or other securities or assets
(other than Common Stock) then, wherever appropriate, all references herein to shares of Common Stock shall be deemed to refer
to and include such shares and/or other securities or assets; and thereafter the number of such shares and/or other securities
or assets shall be subject to adjustment from time to time in a manner and upon terms as nearly equivalent as practicable to the
provisions of this Section 5.
(f) Notice of Adjustments.
Whenever the Exercise Price is adjusted pursuant to the terms of this Warrant, the Company shall promptly mail to the Holder a
notice (an “Exercise Price Adjustment Notice”) setting forth the Exercise Price after such adjustment and setting forth
a statement of the facts requiring such adjustment. The Company shall, upon the written request at any time of the Holder, furnish
to such Holder a like Warrant setting forth (i) such adjustment or readjustment, (ii) the Exercise Price at the time
in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or property which at
the time would be received upon Exercise of the Warrant. For purposes of clarification, whether or not the Company provides an
Exercise Price Adjustment Notice pursuant to this Section 5(f), upon the occurrence of any event that leads to an adjustment
of the Exercise Price, the Holder would be entitled to receive a number of Exercise Shares based upon the new Exercise Price, as
adjusted, for exercises occurring on or after the date of such adjustment, regardless of whether the Holder accurately refers to
the adjusted Exercise Price in the Exercise Form.
6. Fractional Interests.
No fractional shares or scrip representing
fractional shares shall be issuable upon the Exercise of this Warrant, but on Exercise of this Warrant, Holder may purchase only
a whole number of shares of Common Stock. If, on Exercise of this Warrant, Holder would be entitled to a fractional share of Common
Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares
of Common Stock issuable upon Exercise shall be the next higher whole number of shares.
7. Reservation of
Shares.
From and after the date hereof, the Company
shall at all times reserve for issuance such number of authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for the Exercise of this Warrant and payment of the Exercise Price. If
at any time the number of shares of Common Stock authorized and reserved for issuance is below the number of shares sufficient
for the Exercise of this Warrant (a “Share Authorization Failure”) (based on the Exercise Price in effect from time
to time), the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares,
including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company’s
obligations under this Section 7, in the case of an insufficient number of authorized shares, and using its best efforts to
obtain stockholder approval of an increase in such authorized number of shares. The Company covenants and agrees that upon the
Exercise of this Warrant, all shares of Common Stock issuable upon such Exercise shall be duly and validly issued, fully paid and
nonassessable and not subject to preemptive rights, rights of first refusal or similar rights of any Person.
8. Restrictions on
Transfer.
(a) Registration or
Exemption Required. This Warrant has been issued in a transaction exempt from the registration requirements of the Securities
Act by virtue of Regulation D and exempt from state registration or qualification under applicable state laws. None of the Warrant
or the Exercise Shares may be pledged, transferred, sold, assigned, hypothecated or otherwise disposed of except pursuant to an
effective registration statement or an exemption to the registration requirements of the Securities Act and applicable state laws
including, without limitation, a so-called “4(1) and a half” transaction.
(b) Assignment.
Should the Holder desire to sell, transfer, assign, pledge, hypothecate or otherwise dispose of this Warrant, in whole or in part;
the Holder shall deliver a written notice to Company, substantially in the form of the Assignment attached hereto as Exhibit B,
indicating the Person or Persons to whom the Warrant is requested to be assigned and the respective number of Warrant Shares to
be assigned to each assignee. The Company may permit the assignment upon such reasonable conditions as the Company may require,
including the delivery to the Company of an acceptable opinion of counsel as to the assignment’s qualification for an exemption
from registration. This Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors
and permitted assigns of the Holder.
(c) Representations
of the Holder. The right to acquire Common Stock or the Common Stock issuable upon exercise of the Holder’s rights contained
herein will be acquired for investment and not with a view to the sale or distribution of any part thereof, and the Holder has
no present intention of selling, transferring, assigning, pledging, hypothecating or otherwise disposing of this Warrant in any
public distribution of the same except pursuant to a registration or exemption. Holder is an “accredited investor”
within the meaning of the Securities and Exchange Commission’s Rule 501 of Regulation D, as presently in effect. The Holder
understands (i) that the Common Stock issuable upon exercise of the Holder’s rights contained herein is not registered under
the Securities Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant
will be exempt from the registration and qualifications requirements thereof and (ii) that the Company’s reliance on such
exemption is predicated on the representations set forth in this Section 8(c). The Holder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and risks of its investment and has the ability to bear
the economic risks of its investment.
9. Noncircumvention.
The Company hereby covenants and agrees
that the Company will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of
assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry
out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting
the generality of the foregoing, the Company (i) shall not increase the par value of any shares of Common Stock receivable
upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant.
10. Benefits of this
Warrant.
Nothing in this Warrant shall be construed
to confer upon any person other than the Company and Holder any legal or equitable right, remedy or claim under this Warrant and
this Warrant shall be for the sole and exclusive benefit of the Company and Holder.
11. Governing Law.
All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of California, without regard to the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the state and federal courts sitting in Los Angeles, California. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in such city for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. The parties hereby waive all rights to a trial by jury.
12. Loss of Warrant.
Upon receipt by the Company of evidence
of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of indemnity or
security reasonably satisfactory to the Company, and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver a new Warrant of like tenor and date.
13. Notice or Demands.
Notices or demands pursuant to this Warrant
to be given or made by Holder to or on the Company shall be sufficiently given or made if sent by certified or registered mail,
return receipt requested, postage prepaid, and addressed, until another address is designated in writing by the Company, to the
address set forth in Section 2(a) above. Notices or demands pursuant to this Warrant to be given or made by the Company to
or on Holder shall be sufficiently given or made if sent by certified or registered mail, return receipt requested, postage prepaid,
and addressed, to the address of Holder set forth in the Company’s records, until another address is designated in writing
by Holder.
14. Attorneys’ Fees.
In the event any legal action or other
proceeding is brought by one party against the other party to enforce any provision of this Warrant or in which the subject matter
of such legal action or other proceeding arises under, or is with respect to, the provisions of this Warrant, the prevailing party
in any such legal action or other proceeding is entitled to recover from the other party attorneys’ fees and costs associated
with defending or prosecuting such legal action or other proceeding, any appeal therefrom, and any ancillary or related proceedings.
IN WITNESS WHEREOF, the undersigned has
executed this Warrant as of the ___ day of March, 2015.
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CRYOPORT, INC. |
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By: |
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Name: |
Robert Stefanovich |
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Its: |
Chief Financial Officer |
EXHIBIT A
EXERCISE FORM FOR WARRANT
TO: [
]
¨ |
Exercise |
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The undersigned hereby irrevocably exercises the attached warrant (the “Warrant”) with respect to shares of Common Stock (the “Common Stock”) of Cryoport, Inc., a Nevada corporation (the “Company”). |
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The undersigned hereby encloses $____ as payment of the Exercise Price. |
The undersigned hereby agrees to cancel $___________
of the amount due under the Note as payment of the Exercise Price.
1. The undersigned requests that any stock
certificates for such shares be issued and, if applicable, a warrant representing any unexercised portion hereof be issued, pursuant
to the Warrant in the name of the undersigned and delivered to the undersigned at the address set forth below.
2. Capitalized terms used but not otherwise
defined in this Exercise Form shall have the meaning ascribed thereto in the Warrant.
Dated: _______________
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Signature |
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Print Name |
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Address |
NOTICE
The signature to the foregoing Exercise Form must correspond
to the name as written upon the face of the attached Warrant in every particular, without alteration or enlargement or any change
whatsoever.
EXHIBIT B
ASSIGNMENT
(To be executed by the registered holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned holder of the attached
warrant (the “Warrant”) hereby sells, assigns and transfers unto the person or persons below named the right to purchase
__________ shares of the Common Stock of Cryoport, Inc., a Nevada corporation, evidenced by the attached Warrant and does hereby
irrevocably constitute and appoint __________ attorney to transfer the said Warrant on the books of the Company, with full power
of substitution in the premises.
Dated: _________________ |
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Signature |
Fill in for new registration of Warrant:
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Name |
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Address |
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Please print name and address of assignee |
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(including zip code number) |
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NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of the attached Warrant in every particular, without alteration or enlargement or any change
whatsoever.
Schedule 1
Black-Scholes Value
Calculation Under Section 5(c)(iii) |
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Remaining Term |
Number of calendar days from date of public announcement of the Major Transaction after commencement of the Exercise Period until the last date on which the Warrant may be exercised. |
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Interest Rate |
A risk-free interest rate corresponding to the US$ LIBOR/Swap rate for a period equal to the Remaining Term. |
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Volatility |
If the first public announcement of the Major
Transaction is made at or prior to 4:00 p.m., New
York City time, the arithmetic mean of the historical
volatility for the 10, 30 and 50 Trading Day periods
ending on the date of such first public
announcement, obtained from the HVT or similar
function on Bloomberg.
If the first public announcement of the Major
Transaction is made after 4:00 p.m., New York City
time, the arithmetic mean of the historical volatility for the
10, 30 and 50 Trading Day periods ending on the
next succeeding Trading Day following the date of
such first public announcement, obtained from the
HVT or similar function on Bloomberg. |
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Stock Price |
The greater of (1) the closing price of the Common Stock on the OTCBB, or, if that is not the principal trading market for the Common Stock, such principal market on which the Common Stock is traded or listed (the “Closing Market Price”) on the trading day immediately preceding the date on which a Major Transaction is consummated, (2) the first Closing Market Price following the first public announcement of a Major Transaction, or (3) the Closing Market Price as of the date immediately preceding the first public announcement of the Major Transaction. |
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Dividends |
Zero. |
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Strike Price |
Exercise Price as defined in section 3(a). |
Exhibit 10.1
IMPORTANT: PLEASE READ CAREFULLY
BEFORE SIGNING
SIGNIFICANT REPRESENTATIONS ARE CALLED
FOR HEREIN
NOTE EXCHANGE AGREEMENT AND LETTER
OF INVESTMENT INTENT
The undersigned hereby
tenders this Note Exchange Agreement and applies for the exchange of all of the principal and accrued interest outstanding (the
“Exchange Amount”) under the Promissory Note indicated on the signature page hereof (the “Note”)
for a new Convertible Promissory Note in the form attached hereto as Exhibit A with an original principal amount equal to
the Exchange Amount (the “New Note”) and a Warrant in the form attached hereto as Exhibit B for the purchase
of a certain number of shares of Common Stock of Cryoport, Inc. (the “Company”) at an exercise price of $0.50
per share (the “Warrant,” and collectively, the “Securities”), upon the terms and conditions
set forth below. The number of shares that will be issuable upon exercise of the Warrant will equal the Exchange Amount divided
by $2.00.
In connection with
the exchange of the Note, the undersigned hereby assigns, transfers, conveys, surrenders, and releases to the Note. Concurrently
with delivery of this Note Exchange Agreement, the undersigned shall deliver to the Company the original Note for cancellation,
which Note will be cancelled upon Company’s acceptance of this Note Exchange Agreement.
By execution below,
the undersigned acknowledges that the Company is relying upon the accuracy and completeness of the representations contained herein
in complying with its obligations under applicable securities laws.
| (a) | Subject to the terms and conditions of this Note Exchange Agreement, the undersigned hereby irrevocably
elects to exchange the Note for the New Note and the Warrant. |
| (b) | THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE OR ANY OTHER JURISDICTION. THERE ARE FURTHER RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES DESCRIBED HEREIN.
THE ACQUISITION OF THE SECURITIES INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN BEAR THE RISK
OF THE LOSS OF THEIR ENTIRE INVESTMENT. |
| 2. | Representations. The undersigned acknowledges and represents as follows: |
| (a) | The undersigned has received, and is familiar with the New Note, the Warrant, and the publicly
available filings by the Company with the Securities Exchange Commission (collectively the “Disclosure Documents”). |
| (b) | The undersigned is in a financial position to hold the Securities for an indefinite period of time
and is able to bear the economic risk and withstand a complete loss of its investment in the Securities. |
| (c) | The undersigned believes it, either alone or with the assistance of its professional advisor, has
such knowledge and experience in financial and business matters that it is capable of reading and interpreting the Disclosure Documents
and evaluating the merits and risks of the prospective investment in the Securities and has the net worth to undertake such risks. |
| (d) | The undersigned has obtained, to the extent it deems necessary, professional advice with respect
to the risks inherent in the investment in the Securities, and the suitability of the investment in the Securities in light of
its financial condition and investment needs. |
| (e) | The undersigned believes that the investment in the Securities is suitable for it based upon its
investment objectives and financial needs, and the undersigned has adequate means for providing for its current financial needs
and contingencies and has no need for liquidity of investment with respect to the Securities. |
| (f) | The undersigned understands that no public market for the Securities exists, or is likely to develop,
and that it may not be possible to liquidate this investment readily, if at all, in the case of an emergency or for any other reason. |
| (g) | The undersigned recognizes that an investment in the Securities involves a high degree of risk. |
| (h) | The undersigned realizes that (1) the exchange of the Note for the Securities and the shares into
which they may be exchanged is a long-term investment, (2) the undersigned must bear the economic risk of investment for an indefinite
period of time because the Securities and any such shares that may be issued upon exercise of the Warrant will not have been registered
under the Securities Act of 1933 and, therefore, cannot be sold unless they are subsequently registered under said Act or an exemption
from such registration is available and (3) the transferability of the Securities and such shares is restricted pending effectiveness
of such a registration of qualification for an exemption. |
| (i) | The undersigned has been advised that the offering and issuance of Securities and any exchange
of the Securities will not be registered under the Securities Act of 1933 or the relevant state securities laws but are being offered
and issued pursuant to exemptions from such laws and that the Company’s reliance upon such exemptions is predicated in part
on the undersigned’s representations as contained herein. The undersigned represents and warrants that the Securities are
being acquired for the undersigned’s own account and for investment and without the intention of reselling or redistributing
the same, that it has made no agreement with others regarding any of such Securities and that its financial condition is such that
it is not likely that it will be necessary to dispose of any of the Securities in the foreseeable future. |
| (j) | The undersigned represents and warrants that it is a bona fide resident of, and is domiciled in
the state indicated on the signature page below under “Address”, and that the Securities are being acquired by it in
its name solely for its own beneficial interest and not as nominee for, or on behalf of, or for the beneficial interest of, or
with the intention to transfer to, any other person, trust or organization. |
| (k) | The undersigned understands that the representations contained below are made for the purpose of
qualifying it is an “accredited investor” as that term is defined in Regulation D of the General Rules and Regulations
under the Securities Act of 1933 and for the purpose of inducing a sale of securities to it. The undersigned hereby represents
that the statement or statements initialled below are true and correct in all respects. The undersigned understands that a false
representation may constitute a violation of law, and that any person who suffers damage as a result of a false representation
may have a claim against the undersigned for damages. |
| (l) | The undersigned understands that certificates evidencing the Securities may bear the following
or any similar legend (in addition to any other legends that may be required): |
| | (i) “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.” |
| | (ii) If required by the authorities of any state in connection with the issuance of sale of the
Securities, the legend required by such state authority. |
| (m) | The undersigned represents and warrants that it did not learn of the investment in the Securities
as a result of any general solicitation or general advertising. |
| (n) | Since the date on which undersigned first learned about the investment opportunity, the undersigned
has not disclosed any information regarding such opportunity to any third parties (other than its affiliates and legal, accounting
and other advisors who are bound by agreements or duties of confidentiality) and has not engaged in any purchases or sales involving
the securities of the Company (including, without limitation, any short sales involving the Company’s securities). The undersigned
agrees that it will not engage in any purchases or sales involving the securities of the Company (including short sales) prior
to the time that the transactions contemplated by this Agreement are publicly disclosed. The undersigned agrees that it will not
use any of the Securities acquired pursuant to this Note Exchange Agreement to cover any short position in the Common Stock if
doing so would be in violation of applicable securities laws. For purposes hereof, “short sales” include, without limitation,
all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the 1934 Act, whether or
not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales,
swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the 1934 Act) and similar arrangements (including
on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers. |
| (o) | The undersigned acknowledges that prior to acquiring the Securities, the undersigned has been provided
with financial and other written information about the Company and the terms and conditions of the offering. The undersigned has
been given the opportunity by the Company to obtain such information and ask such questions concerning the Company, the Securities
and the undersigned’s investment as the undersigned felt necessary, and to the extent the undersigned took such opportunity,
the undersigned received satisfactory information and answers. If the undersigned requested any additional information which the
Company possessed or could acquire without unreasonable effort or expense which was necessary to verify the accuracy of the financial
and other written information furnished to the undersigned by the Company, such additional information was provided to the undersigned
and was satisfactory. |
3. Accredited Investor Status.
The undersigned is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act
of 1933, as amended (the “Act”). The specific category or categories of “accredited investor” applicable
to the undersigned are as follows:
| (a) | Accredited individual investors must initial either or both of the following
two statements: |
| _____ (1) | I certify that I am an accredited investor because I
had individual income (exclusive of any income attributable to my spouse) of more than $200,000 in each of the most recent two
years or joint income with my spouse of more than $300,000 in each of such years and I reasonably expect to have an individual
income in excess of such amounts for the current year. |
| _____ (2) | I certify that I am an accredited investor because I
have an individual net worth, or my spouse and I have a combined individual net worth, in excess of $1,000,000. For purposes of
this questionnaire, “net worth” excludes the equity in my or our primary residence. |
| (b) | Accredited partnerships, corporations or other entities must initial one or more
of the following statements, and must initial the last statement: |
| ______ (1) | The undersigned hereby certifies that all of the beneficial
equity owners of the undersigned qualify as accredited individual investors under items (a)(1) or (a)(2) above. (Those attempting
to qualify under this item may be required to provide additional information beyond the equity owner of the entity.) |
| ______ (2) | The undersigned is a bank or savings and loan association
as defined in Sections 3(a)(2) and 3(a)(5)(A), respectively, of the Act acting either in its individual or fiduciary capacity. |
| ______ (3) | The undersigned is an insurance company as defined in
Section 2(a)(13) of the Act. |
| ______ (4) | The undersigned is an investment company registered under
the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that act. |
| ______ (5) | The undersigned is a trust with total assets in excess
of $5,000,000, not formed for the specific purpose of acquiring the Securities, and the undersigned is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) of the Act. |
| ______ (6) | The undersigned is a private business development company
as defined in Section 202(a)(22) of the Investment Advisers Act of 1940. |
| ______ (7) | This Agreement has been duly authorized by all necessary
action on the part of the undersigned, has been duly executed by an authorized officer or representative of the undersigned, and
is a legal, valid and binding obligation of the undersigned enforceable in accordance with its terms. |
[The remainder of this page has been intentionally
left blank.]
The undersigned is exchanging the following
note:
Convertible Promissory Note dated as
of _______________, ____, with an original principal amount of $______________.
Manner in which title to the New Note and Warrants are to
be held (please initial one):
_____ Individual |
_____ Joint tenants with Right of Survivorship |
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_____ Community Property |
_____ Tenants-in-Common |
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_____ Corporation |
_____ Trust |
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_____ IRA |
_____ Qualified Retirement Plans |
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_____ SEP/SIMPLE |
_____ LLC |
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_____ Partnership |
_____ Other |
IN WITNESS WHEREOF, the undersigned has executed this Note
Exchange Agreement this ________ ___, 2015
* * * * * * * *
PLEASE PRINT BELOW THE REGISTRATION
INFORMATION OF EACH INDIVIDUAL OR ENTITY
EXCHANGING
INDIVIDUAL and JOINT |
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ENTITY |
(Please type or print name[s] exactly as it should appear on the Certificate) |
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(Please type or print name[s] exactly as it should appear on the Certificate) |
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Name(s) Typed or Printed |
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Name Typed or Printed |
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Daytime Phone |
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Business Phone |
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Email Address |
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Email Address |
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Address to Which Correspondence Should be Directed: |
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Address to Which Correspondence Should be Directed: |
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Name Person to Contact |
Social Security Number |
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Entity’s Taxpayer Identification Number |
EXHIBIT A
NEW PROMISSORY NOTE
EXHIBIT B
WARRANT
Exhibit 10.2
THE ISSUANCE OF THIS PROMISSORY NOTE, AND
THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY, THE “SECURITIES”), HAVE NOT BEEN REGISTERED WITH
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THE SECURITIES ARE BEING OFFERED
PURSUANT TO CLAIMED EXEMPTIONS FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”). THE SECURITIES ARE “RESTRICTED SECURITIES” AND MAY NOT BE OFFERED OR RESOLD UNLESS
THE SECURITIES ARE REGISTERED UNDER THE ACT, OR ELIGIBLE TO BE OFFERED OR SOLD PURSUANT TO AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS. THE COMPANY MAY REQUIRE THAT IT BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE. FURTHER, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT
IN COMPLIANCE WITH THE ACT.
CRYOPORT,
INC.
US $_________
This Promissory Note
(the “Note”) is issued as of February 20, 2015 by Cryoport,
Inc., a Nevada corporation (the “Company”), to ____________.
(together with its permitted successors and assigns, the “Holder”) with an address of _________ pursuant to exemptions from registration under the Securities Act of 1933, as amended.
ARTICLE 1
1.1
Principal and Interest. The Company hereby promises to pay the principal sum of US $___________ pursuant
to the terms hereof and to pay interest to the Holder on such principal balance from the date hereof. From the date hereof through
the date of payment, interest shall accrue at the rate of six percent (6%) per annum.
1.2
Maturity Date. All unpaid principal and accrued interest hereunder shall be paid on March 1, 2016 (the
“Maturity Date”).
1.3
Payments. The Company shall (a) make payments of accrued interest on a calendar quarterly basis, with the
first such payment due June 30, 2015, and thereafter on the last day of each calendar quarter during the term of the Note, and
(b) repay all outstanding principal and accrued interest on the Maturity Date.
1.4
Conversion.
1.4.1
Qualified Offering. This Note is convertible into certain capital stock of the Company in accordance with the conversion
rights specified herein. In the event of a public offering by the Company pursuant to an effective registration statement under
the Securities Act of 1933, as amended, resulting in at least $5,000,000 of gross cash proceeds to the Company that is for the
sale of shares of common stock or includes the sale of shares of common stock among the sale of other securities (a “Qualified
Offering”), the Company shall in such event notify the Holder in writing within thirty (30) days of such Qualified
Offering of the terms of such Qualified Offering, and the Holder shall have the option until thirty (30) days after such notice
to elect in writing to convert all or a portion of the principal and accrued interest under this Note into the equity securities
that were issued by the Company in such Qualified Offering at the Qualified Offering Conversion Rate. The “Qualified
Offering Conversion Rate” shall be determined by dividing the principal and accrued interest the Holder elects to
convert by the Qualified Offering Conversion Price. The “Qualified Offering Conversion Price” shall mean
eighty percent (80%) of the price per share (or unit, if applicable) of the securities issued by the Company in such Qualified
Offering (i.e., a twenty percent (20%) discount). The Company shall not issue fractional shares upon a conversion. If the application
of the Conversion price shall contemplate issuance of less than a half share, such fractional share shall not be issued and no
payment shall be made to the converting Holder and should such application result in the issuance of a half or greater fractional
share, such fractional share shall be rounded up to the next full share.
1.4.2
Mechanics and Effect of Conversion. Upon a conversion of this Note, the Holder shall surrender this Note, duly endorsed,
at the principal office of the Company and (if applicable) shall execute such documents as are required to be executed in connection
with any financing (including without limitation, any Qualified Financing). Upon conversion of this Note in full, this Note shall
be cancelled, and no further amounts shall be due hereunder. Upon a partial conversion of this Note, this Note shall be cancelled,
and the Company shall issue a new Note for the remaining outstanding principal balance.
1.4.3
Restricted Securities. Holder understands that the shares to be issued upon a conversion pursuant to this Section
1.4 will be issued pursuant to a claimed exemption from registration under the Act and thus the certificate for such shares
will bear a restrictive legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT.”
ARTICLE 2
2.1
Prepayment. This Note may be prepaid at any time without penalty by the Company without the consent of the
Holder.
ARTICLE 3
3.1
Events of Default. The occurrence or existence of any one or more of the following constitutes an “Event
of Default” under this Note:
3.1.1
The Company fails to pay any amount of principal or interest under this Note when due if such failure is not cured by the
Company within thirty (30) days following written notice by Holder to the Company of such failure.
3.1.2
The Company becomes subject to any bankruptcy or other voluntary or involuntary proceeding in or out of court for the adjustment
of debtor-creditor relationships.
3.1.3
The Company makes an assignment for the benefit of its creditors.
If an Event of Default
occurs or is continuing, all sums of principal and interest under this Note shall automatically become immediately due and payable
without notice of default, presentment, or demand for payment, protest, or notice of nonpayment or dishonor, or other notices or
demands of any kind or character.
3.2
Maximum Interest. Notwithstanding any other provision of this Note or any other agreement between the Company
and Holder, nothing herein shall require the Company to pay, or the Holder to accept, interest in any amount which subjects the
holder to any penalty or forfeiture under applicable law, and in no event shall the total of all charges payable hereunder (whether
of interest or of such other charges which may or might be characterized as interest) exceed the maximum rate permitted to be charged
under applicable law.
ARTICLE 4
4.1
Re-issuance of Note. Should the Holder elect to convert a part, but not all, of the unpaid principal amount
then owing to the Holder under this Note, then the Company shall reissue a new Note in the same form as this Note to reflect the
new principal amount and the accrued unpaid interest which was not converted.
4.2
Notices. Notices regarding this Note shall be sent to the parties at the following addresses, unless a party
notifies the other parties, in writing, of a change of address:
If to the Company: |
Cryoport, Inc. |
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20382 Barents Sea Circle |
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Lake Forest, CA 92101 |
|
4.3
Governing Law. This Note shall be deemed to be made under and shall be construed in accordance with the laws
of the State of Nevada without giving effect to the principals of conflict of laws thereof.
4.4
Severability. The invalidity of any of the provisions of this Note shall not invalidate or otherwise affect
any of the other provisions of this Note, which shall remain in full force and effect.
4.5
Entire Agreement and Amendments. This Note represents the entire agreement between the parties hereto with
respect to the subject matter hereof and there are no representations, warranties or commitments, except as set forth herein. This
Note may be amended only by an instrument in writing executed by the parties hereto.
4.6
No Waiver, Cumulative Remedies. No failure to exercise and no delay in exercising, on the part any party,
any right, remedy, power or privilege hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
4.7
Waiver of Trial by Jury. To the extent permitted by applicable Law, each of the parties irrevocably waives
all right of trial by jury in any action, proceeding or counterclaim arising out of or in connection with this Note or any matter
arising hereunder.
4.8
Legal Holidays. In any case where the date on which any payment is due to any Holder shall not be a business
day, then any such payment need not be made on such date, but may be made on the next succeeding business day with the same force
and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal
date.
IN
WITNESS WHEREOF, with the intent to be legally bound hereby, the Company as executed this Note as of the date first written
above.
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CRYOPORT, INC. |
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By: |
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Name: Robert S. Stefanovich |
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Its: Chief Financial Officer |
Exhibit 10.3
IMPORTANT: PLEASE READ CAREFULLY
BEFORE SIGNING
SIGNIFICANT REPRESENTATIONS ARE CALLED
FOR HEREIN
LETTER OF INVESTMENT INTENT
The undersigned hereby
submits this Letter of Investment Intent in connection with the amendment and restatement of the Simple Interest Commercial Promissory
Note issued by Cryoport Systems, Inc. to the undersigned (“Original Note”) as further described on the signature page
hereof, the form of such amendment and restatement is attached hereto as Exhibit A (such amended and restated promissory
note, the “Note”), and the issuance of a Warrant in the form attached hereto as Exhibit B for the purchase
of a certain number of shares of Common Stock of Cryoport, Inc. (the “Company”) at an exercise price of $0.50
per share (the “Warrant”), upon the terms and conditions set forth below. The number of shares that will be
issuable upon exercise of the Warrant will equal the outstanding principal balance of the Note. In addition, the Company shall
issue the undersigned a warrant (“Fee Warrant”) to purchase _____ shares of Common Stock of the Company in the form
attached hereto as Exhibit C to reimburse the undersigned for any fees or other expenses incurred in connection with this
transaction. Collectively the Note, Warrant and the Fee Warrant are hereinafter referred to as the “Securities”.
By execution below,
the undersigned acknowledges that the Company is relying upon the accuracy and completeness of the representations contained herein
in complying with its obligations under applicable securities laws.
| (a) | Concurrently herewith, the undersigned agrees to amend and restate the Original Note and accept
the Warrant and the Fee Warrant as consideration for accepting the Note. |
| (b) | THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE OR ANY OTHER JURISDICTION. THERE ARE FURTHER RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES DESCRIBED HEREIN.
THE ACQUISITION OF THE SECURITIES INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN BEAR THE RISK
OF THE LOSS OF THEIR ENTIRE INVESTMENT. |
| 2. | Representations. The undersigned acknowledges and represents as follows: |
| (a) | The undersigned has received, and is familiar with the Securities, and the publicly available filings
by the Company with the Securities Exchange Commission (collectively the “Disclosure Documents”). |
| (b) | The undersigned is in a financial position to hold the Securities for an indefinite period of time
and is able to bear the economic risk and withstand a complete loss of its investment in the Securities. |
| (c) | The undersigned believes it, either alone or with the assistance of its professional advisor, has
such knowledge and experience in financial and business matters that it is capable of reading and interpreting the Disclosure Documents
and evaluating the merits and risks of the prospective investment in the Securities and has the net worth to undertake such risks. |
| (d) | The undersigned has obtained, to the extent it deems necessary, professional advice with respect
to the risks inherent in the investment in the Securities, and the suitability of the investment in the Securities in light of
its financial condition and investment needs. |
| (e) | The undersigned believes that the investment in the Securities is suitable for it based upon its
investment objectives and financial needs, and the undersigned has adequate means for providing for its current financial needs
and contingencies and has no need for liquidity of investment with respect to the Securities. |
| (f) | The undersigned understands that no public market for the Securities exists, or is likely to develop,
and that it may not be possible to liquidate this investment readily, if at all, in the case of an emergency or for any other reason. |
| (g) | The undersigned recognizes that an investment in the Securities involves a high degree of risk. |
| (h) | The undersigned realizes that (1) the Securities and the shares into which they may be exchanged
is a long-term investment, (2) the undersigned must bear the economic risk of investment for an indefinite period of time because
the Securities and any such shares that may be issued upon exercise of the Warrant will not have been registered under the Securities
Act of 1933 and, therefore, cannot be sold unless they are subsequently registered under said Act or an exemption from such registration
is available and (3) the transferability of the Securities and such shares is restricted pending effectiveness of such a registration
of qualification for an exemption. |
| (i) | The undersigned has been advised that the offering and issuance of Securities or shares of the
Compnay’s common stock issuable on conversion or exercise thereof will not be registered under the Securities Act of 1933
or the relevant state securities laws but are being offered and issued pursuant to exemptions from such laws and that the Company’s
reliance upon such exemptions is predicated in part on the undersigned’s representations as contained herein. The undersigned
represents and warrants that the Securities are being acquired for the undersigned’s own account and for investment and without
the intention of reselling or redistributing the same, that it has made no agreement with others regarding any of such Securities
and that its financial condition is such that it is not likely that it will be necessary to dispose of any of the Securities in
the foreseeable future. |
| (j) | The undersigned represents and warrants that it is a bona fide resident of, and is domiciled in
the state indicated on the signature page below under “Address”, and that the Securities are being acquired by it in
its name solely for its own beneficial interest and not as nominee for, or on behalf of, or for the beneficial interest of, or
with the intention to transfer to, any other person, trust or organization. |
| (k) | The undersigned understands that the representations contained below are made for the purpose of
qualifying it is an “accredited investor” as that term is defined in Regulation D of the General Rules and Regulations
under the Securities Act of 1933 and for the purpose of inducing a sale of securities to it. The undersigned hereby represents
that the statement or statements initialled below are true and correct in all respects. The undersigned understands that a false
representation may constitute a violation of law, and that any person who suffers damage as a result of a false representation
may have a claim against the undersigned for damages. |
| (l) | The undersigned understands that certificates evidencing the Securities may bear the following
or any similar legend (in addition to any other legends that may be required): |
| | (i) “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.” |
| | (ii) If required by the authorities of any state in connection with the issuance of sale of the
Securities, the legend required by such state authority. |
| (m) | The undersigned represents and warrants that it did not learn of the investment in the Securities
as a result of any general solicitation or general advertising. |
| (n) | Since the date on which undersigned first learned about the investment opportunity, the undersigned
has not disclosed any information regarding such opportunity to any third parties (other than its affiliates and legal, accounting
and other advisors who are bound by agreements or duties of confidentiality) and has not engaged in any purchases or sales involving
the securities of the Company (including, without limitation, any short sales involving the Company’s securities). The undersigned
agrees that it will not engage in any purchases or sales involving the securities of the Company (including short sales) prior
to the time that the transactions contemplated by this Agreement are publicly disclosed. The undersigned agrees that it will not
use any of the Securities acquired pursuant to this Letter of Investment Intent to cover any short position in the Common Stock
if doing so would be in violation of applicable securities laws. For purposes hereof, “short sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the 1934 Act,
whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls,
short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the 1934 Act) and similar arrangements
(including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers. |
| (o) | The undersigned acknowledges that prior to acquiring the Securities, the undersigned has been provided
with financial and other written information about the Company, including the Disclosure Documents. The undersigned has been given
the opportunity by the Company to obtain such information and ask such questions concerning the Company, the Securities and the
undersigned’s investment as the undersigned felt necessary, and to the extent the undersigned took such opportunity, the
undersigned received satisfactory information and answers. If the undersigned requested any additional information which the Company
possessed or could acquire without unreasonable effort or expense which was necessary to verify the accuracy of the financial and
other written information furnished to the undersigned by the Company, such additional information was provided to the undersigned
and was satisfactory. |
3. Accredited Investor Status.
The undersigned is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act
of 1933, as amended (the “Act”). The specific category or categories of “accredited investor” applicable
to the undersigned are as follows:
| (a) | Accredited individual investors must initial either or both of the following
two statements: |
| _____ (1) | I certify that I am an accredited investor because I
had individual income (exclusive of any income attributable to my spouse) of more than $200,000 in each of the most recent two
years or joint income with my spouse of more than $300,000 in each of such years and I reasonably expect to have an individual
income in excess of such amounts for the current year. |
| _____ (2) | I certify that I am an accredited investor because I
have an individual net worth, or my spouse and I have a combined individual net worth, in excess of $1,000,000. For purposes of
this questionnaire, “net worth” excludes the equity in my or our primary residence. |
| (b) | Accredited partnerships, corporations or other entities must initial one or more
of the following statements, and must initial the last statement: |
| ______ (1) | The undersigned hereby certifies that all of the beneficial
equity owners of the undersigned qualify as accredited individual investors under items (a)(1) or (a)(2) above. (Those attempting
to qualify under this item may be required to provide additional information beyond the equity owner of the entity.) |
| ______ (2) | The undersigned is a bank or savings and loan association
as defined in Sections 3(a)(2) and 3(a)(5)(A), respectively, of the Act acting either in its individual or fiduciary capacity. |
| ______ (3) | The undersigned is an insurance company as defined in
Section 2(a)(13) of the Act. |
| ______ (4) | The undersigned is an investment company registered under
the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that act. |
| ______ (5) | The undersigned is a trust with total assets in excess
of $5,000,000, not formed for the specific purpose of acquiring the Securities, and the undersigned is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) of the Act. |
| ______ (6) | The undersigned is a private business development company
as defined in Section 202(a)(22) of the Investment Advisers Act of 1940. |
| ______ (7) | This Agreement has been duly authorized by all necessary
action on the part of the undersigned, has been duly executed by an authorized officer or representative of the undersigned, and
is a legal, valid and binding obligation of the undersigned enforceable in accordance with its terms. |
[The remainder of this page has been intentionally
left blank.]
The undersigned is amending and restating
the following note:
Simple Interest Commercial Promissory
Note issued on or about March 1, 2005, with an original principal amount of $__________.
Manner in which title to the Note, Warrants and Fee Warrants
are to be held (please initial one):
_____ Individual |
_____ Joint tenants with Right of Survivorship |
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_____ Community Property |
_____ Tenants-in-Common |
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_____ Corporation |
_____ Trust |
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_____ IRA |
_____ Qualified Retirement Plans |
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_____ SEP/SIMPLE |
_____ LLC |
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_____ Partnership |
_____ Other |
IN WITNESS WHEREOF,
the undersigned has executed this Letter of Investment Intent this March 2, 2015
________________________________
Name: _______________
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PLEASE PRINT BELOW THE REGISTRATION
INFORMATION OF EACH INDIVIDUAL OR ENTITY
EXCHANGING
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EXHIBIT A
NOTE
EXHIBIT B
WARRANT
EXHIIBIT C
FEE WARRANT
Exhibit 10.4
THIS AMENDED AND RESTATED PROMISSORY NOTE,
AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY, THE “SECURITIES”), HAVE NOT BEEN REGISTERED WITH
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THE SECURITIES ARE BEING OFFERED
PURSUANT TO CLAIMED EXEMPTIONS FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”). THE SECURITIES ARE “RESTRICTED SECURITIES” AND MAY NOT BE OFFERED OR RESOLD UNLESS
THE SECURITIES ARE REGISTERED UNDER THE ACT, OR ELIGIBLE TO BE OFFERED OR SOLD PURSUANT TO AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS. THE COMPANY MAY REQUIRE THAT IT BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE. FURTHER, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT
IN COMPLIANCE WITH THE ACT.
CRYOPORT
SYSTEMS, INC.
AMENDED AND RESTATED PROMISSORY NOTE
US $____________
This Amended and Restated
Promissory Note (the “Note”) is an amendment and restatement of the Simple Interest Commercial Promissory
Note (the “Original Note”) issued on or about March 1, 2005 by Cryoport
Systems, Inc., a California corporation (the “Company”) with
in original principal balance of $____________, to _____________ (together with its permitted successors and assigns, the “Holder”)
with an address of ___________ pursuant to exemptions from registration under the Securities Act of 1933, as amended. Certain payments
were made on the Original Note and interest has accrued, which is being added to the principal amount due under the Original Note,
such that the outstanding principal amount of this Note is $______________.
ARTICLE 1
1.1
Principal and Interest. The Company hereby promises to pay the principal sum of US $________ pursuant to the
terms hereof and to pay interest to the Holder on such principal balance from the date hereof. From the date hereof through the
date of payment, interest shall accrue at the rate of six percent (6%) per annum.
1.2
Maturity Date. All unpaid principal and accrued interest hereunder shall accelerate and become due and shall
be paid on the earlier of (a) March 1, 2016, (b) the sale of all or substantially all of the assets of the Company or Cryoport,
Inc. (“Cryoport”), or (c) the merger, consolidation or other similar reorganization of the Company or
Cryoport affiliate with another entity (the “Maturity Date”).
1.3
Payments. The Company shall (a) make payments of all accrued interest on a calendar quarterly basis, with
the first such payment due June 30, 2015, and thereafter on the last day of each calendar quarter during the term of the Note,
and (b) repay all outstanding principal and any remaining unpaid accrued interest on the Maturity Date.
1.4
Optional Conversion.
1.4.1
Qualified Offering. This Note is convertible into certain capital stock of Cryoport in accordance with the conversion
rights specified herein. In the event of a public offering by Cryoport pursuant to an effective registration statement under the
Securities Act of 1933, as amended, resulting in at least $5,000,000 of gross cash proceeds to Cryoport that is for the sale of
shares of common stock or includes the sale of shares of common stock among the sale of other securities (a “Qualified
Offering”), Cryoport shall in such event notify the Holder in writing within thirty (30) days of such Qualified Offering
of the terms of such Qualified Offering, and the Holder shall have the option until thirty (30) days after such notice to elect
in writing to convert all or a portion of the principal and accrued interest under this Note into the equity securities that were
issued by Cryoport in such Qualified Offering at the Qualified Offering Conversion Rate. The conversion pursuant to the notice
shall only be effective and concurrent with the closing of the Qualified Offering. The “Qualified Offering Conversion
Rate” shall be determined by dividing the principal and accrued interest the Holder elects to convert by the Qualified
Offering Conversion Price. The “Qualified Offering Conversion Price” shall mean eighty percent
(80%) of the price per share (or unit, if applicable) of the securities issued by Cryoport in such Qualified Offering (i.e., a
twenty percent (20%) discount). Cryoport shall not issue fractional shares upon a conversion. If the application of the Conversion
price shall contemplate issuance of less than a half share, such fractional share shall not be issued and no payment shall be made
to the converting Holder and should such application result in the issuance of a half or greater fractional share, such fractional
share shall be rounded up to the next full share.
1.4.2
Example. For example, if units consisting of one share of common stock of Cryoport and a warrant to purchase one
share of common stock were issued in a Qualified Offering at a unit price of $5.00, then the Qualified Offering Conversion Price
would be $4.00, which is a 20% discount to the unit offering price. If Holder elected to convert $100,000 of principal and interest,
Holder would be issued 25,000 units, or 25,000 shares of common stock of Cryoport and a warrant to purchase 25,000 shares of common
stock of Cryoport. The warrant issued to Holder would have the same terms and conditions, including exercise price, as the warrant
issued in the Qualified Offering.
1.4.3
Mechanics and Effect of Conversion. Upon a conversion of this Note, the Holder shall surrender this Note, duly endorsed,
at the principal office of the Company and (if applicable) shall execute such documents as are required to be executed in connection
with any financing (including without limitation, any Qualified Financing). Upon conversion of this Note in full, this Note shall
be cancelled, and no further amounts shall be due hereunder. Upon a partial conversion of this Note, this Note shall be cancelled,
and the Company shall issue a new Note for the remaining outstanding principal balance.
1.4.4
Restricted Securities. Holder understands that the shares to be issued upon a conversion pursuant to this Section
1.4 will be issued pursuant to a claimed exemption from registration under the Act and thus the certificate for such shares
will bear a restrictive legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT.”
ARTICLE 2
2.1
Prepayment. This Note may not be prepaid without the prior written consent of Holder.
ARTICLE 3
3.1
Events of Default. The occurrence or existence of any one or more of the following constitutes an “Event
of Default” under this Note:
3.1.1
The Company fails to pay any amount of principal or interest under this Note when due if such failure is not cured by the
Company within fifteen (15) business days following written notice by Holder to the Company of such failure.
3.1.2
The Company becomes subject to any bankruptcy or other voluntary or involuntary proceeding in or out of court for the adjustment
of debtor-creditor relationships.
3.1.3
The Company makes an assignment for the benefit of its creditors.
If an Event of Default
occurs or is continuing, all sums of principal and interest under this Note shall automatically become immediately due and payable
without notice of default, presentment, or demand for payment, protest, or notice of nonpayment or dishonor, or other notices or
demands of any kind or character.
3.2
Maximum Interest. Notwithstanding any other provision of this Note or any other agreement between the Company
and Holder, nothing herein shall require the Company to pay, or the Holder to accept, interest in any amount which subjects the
holder to any penalty or forfeiture under applicable law, and in no event shall the total of all charges payable hereunder (whether
of interest or of such other charges which may or might be characterized as interest) exceed the maximum rate permitted to be charged
under applicable law.
ARTICLE 4
4.1
Re-issuance of Note. Should the Holder elect to convert a part, but not all, of the unpaid principal amount
then owing to the Holder under this Note, then the Company shall reissue a new Note in the same form as this Note to reflect the
new principal amount and the accrued and unpaid interest which was not converted.
4.2
Notices. Notices regarding this Note shall be sent to the parties at the following addresses, unless a party
notifies the other parties, in writing, of a change of address:
If to the Holder, to the address set forth
in the preamble of this Note, above.
If to the Company: |
Cryoport Systems, Inc. |
|
20382 Barents Sea Circle |
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Lake Forest, CA 92101 |
4.3
Governing Law; Jurisdiction. This Note shall be deemed to be made under and shall be construed in accordance
with the laws of the State of Nevada without giving effect to the principals of conflict of laws thereof. Any party bringing a
legal action or other proceeding against any other party arising out of or relating to this Note shall only bring the legal action
or other proceeding in the United States District Court for the Central District of California or in any court of the State of
California in County of Orange, and the parties hereby agree and submit to the personal jurisdiction and venue thereof.
4.4
Severability. The invalidity of any of the provisions of this Note shall not invalidate or otherwise affect
any of the other provisions of this Note, which shall remain in full force and effect.
4.5
Entire Agreement and Amendments. The effect of this Note is to amend and restate the Original Note. This Note
shall constitute a renewal, extension and modification of the terms of the Original Note and evidences the same indebtedness that
existed under the Original Note. This Note represents the entire agreement between the parties hereto with respect to the
subject matter hereof and there are no representations, warranties or commitments, except as set forth herein. This Note may be
amended only by an instrument in writing executed by the parties hereto.
4.6
No Waiver, Cumulative Remedies. No failure to exercise and no delay in exercising, on the part any party,
any right, remedy, power or privilege hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
4.7
Attorneys’ Fees. In the event any legal action or other proceeding is brought by one party against the
other party to enforce any provision of this Note or in which the subject matter of such legal action or other proceeding arises
under, or is with respect to, the provisions of this Note, the prevailing party in any such legal action or other proceeding is
entitled to recover from the other party attorneys’ fees and costs associated with defending or prosecuting such legal action
or other proceeding, any appeal therefrom, and any ancillary or related proceedings.
4.8
Waiver of Trial by Jury. To the extent permitted by applicable Law, each of the parties irrevocably waives
all right of trial by jury in any action, proceeding or counterclaim arising out of or in connection with this Note or any matter
arising hereunder.
4.9
Legal Holidays. In any case where the date on which any payment is due to any Holder shall not be a business
day, then any such payment need not be made on such date, but may be made on the next succeeding business day with the same force
and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal
date.
[The remainder of this page has been intentionally
left blank.]
IN WITNESS
WHEREOF, with the intent to be legally bound hereby, the parties have executed this amendment and restatement of the Note
as of March __, 2015.
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CRYOPORT, INC. |
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By: |
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Name: |
Robert Stefanovich |
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Its: |
Chief Financial Officer
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CRYOPORT SYSTEMS, INC. |
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By: |
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Name: |
Robert Stefanovich |
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Its: |
Chief Financial Officer |
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HOLDER |
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Exhibit 10.5
AMENDMENT TO SIMPLE INTEREST COMMERCIAL
PROMISSORY NOTE
This Amendment to Simple
Interest Commercial Promissory Note (the “Amendment”) is made as of March 2, 2015 (the “Effective
Date”) and amends that certain Simple Interest Commercial Promissory Note issued by Cryoport Systems, Inc. (the “Company”)
to ____________ (“Payee”), in the original principal amount of $_____________ (the “Note”).
For one dollar and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1.
Balance of Note. The parties acknowledge and agree that, as of the Effective Date, the outstanding balance of the
Note is $338,452.07, all of which shall be deemed outstanding principal as of the Effective Date. The Note shall accrue interest
as provided in Section 3 of this Amendment.
2.
Payments.
(a)
The regular payments due under Section (a), (b), and (c) of the Note after the phrase “Monthly Principal payment shall
be as follows” are hereby amended and restated as follows: “The Company shall make the following payments on the Note
in the following amounts on or before the corresponding dates set forth below:
Date |
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Amount |
March 13, 2015 |
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$20,000.00 |
April 1, 2015 |
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20,000.00 |
May 1, 2015 |
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20,000.00 |
June 1, 2015 |
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72,000.00 |
July 1, 2015 |
|
20,000.00 |
August 1, 2015 |
|
20,000.00 |
September 1, 2015 |
|
20,000.00 |
October 1, 2015 |
|
20,000.00 |
November 1, 2015 |
|
20,000.00 |
December 1, 2015 |
|
20,000.00 |
January 1, 2016 |
|
20,000.00 |
February 1, 2016 |
|
20,000.00 |
March 1, 2016 |
|
20,000.00 |
April 1, 2016 |
|
20,000.00 |
May 1, 2016 |
|
6,452.07 |
Total |
|
$338,452.07 |
(b)
In addition, the Company shall reimburse Payee for attorneys’ fees incurred by Payee in connection with the negotiation
of this Amendment, up to a maximum amount of One Thousand Dollars ($1,000), on the later of (i) March 13, 2015, or (ii) three (3)
days after receiving written notice from Payee of the amount of attorneys’ fees incurred by Payee.
(c)
If a payee of any other promissory note(s) with the Company that were issued in 2005, including without limitation any amendment
and restatements of such note(s) and any replacement promissory note(s), are paid in full before May 1, 2016, other than (i) notes
that are satisfied upon conversion of such notes into common stock, warrants, or other equity of the Company, or (ii) notes that
have been paid in full before the Effective Date of this Amendment, then all unpaid amounts due and payable through May 1, 2016
under this Section 2 of the Amendment must be paid immediately to Payee in order to avoid default.
3.
Interest. The sentence “The interest rate on this Note will be fixed at six percent (6%) per annum” is
hereby amended and restated as follows: “The Note shall accrue simple interest at a rate of six percent (6%) per year on
the outstanding principal balance of the Note commencing on March 13, 2015 until all outstanding principal and accrued but unpaid
interest is paid to Payee in full. If, however, the Company performs under Section 2 of the Amendment and no event of default occurs,
no interest payments shall be due.”
4.
Default.
(a)
The following provision is hereby added to Section 1 of the Note: “(h) in addition to the events constituting a default
under the Note as provided in Section 1 of the Note, an event of default shall be deemed to occur if the Company fails to make
any payment on or before the date such payment is due as required by Section 2 of the Amendment.
(b)
Section 2 of the Note is hereby amended and restated as follows: “Upon the occurrence of a default, Payee may, at
his option, declare immediately due and payable the entire unpaid principal sum of the Note together with all accrued and unpaid
interest owing at the time of such declaration pursuant to the Note and this Amendment. The outstanding defaulted amount will bear
simple interest at a rate of six percent (6%) per year until such amounts are paid to Payee in full.”
5.
Term.
(a)
The sentence “The term of this note shall be ten (10) years starting March 1, 2005” is hereby amended and restated
as follows: “The maturity date of the Note is May 1, 2016.”
(b)
The sentence “The final payment of any residual balance, including remaining Principal and accrued Interest (balloon
payment), will become due and payable on February 1, 2015.” in the Note is hereby amended and restated as follows:
“The final payment of any residual
balance, including remaining Principal and accrued Interest (balloon payment), will become due and payable on May 1, 2016.”
(c)
Section 1(g) of the Note is hereby amended and restated as follows:
“(g) Failure of the Undersigned
on May 1, 2016, to pay any then unpaid balance of this Note.”
6.
Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument. Facsimile and/or other electronically transmitted signatures shall be effective
for all purposes.
7.
Full Force and Effect. The Note will remain in full force and effect except as specifically modified by this Amendment.
In the event of any conflict between the Amendment and the Note, the terms of this Amendment will govern.
IN WITNESS WHEREOF,
the parties hereto have executed this Amendment to Promissory Note as of the date set first set forth above.
Dated: March __, 2015 |
CRYOPORT SYSTEMS, INC. |
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By: |
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Robert Stefanovich, CFO |
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Duly authorized officer of Cryoport Systems, Inc. |
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Dated: March __, 2015 |
PAYEE |
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By: |
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