exv10w28





Exhibit 10.28



SECOND AMENDMENT TO ENGAGEMENT AGREEMENT




     This Second Amendment to Engagement Agreement (“Amendment”) is made as of _________,
2010 by and between CryoPort, Inc. (together with its affiliates and subsidiaries, the
“Company”) and Maxim Group, LLC (together with its affiliates and subsidiaries,
“Maxim”). Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in that certain letter of engagement, dated as of June 16, 2010 by and among Company and
Maxim and as amended by that certain letter dated as of July 9, 2010 (as amended, the “Letter
Agreement”).



     WHEREAS, pursuant to the Letter Agreement the Company engaged Maxim as its non-exclusive
placement agent in connection with a proposed offering of its securities to “accredited investors”
pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”)
and Rule 506 promulgated thereunder;



     WHEREAS, the Company desired to offer certain “accredited investors” without any prior
relationship with Maxim (“Company Investors”) the right to participate in the Offering on
the same terms and conditions as the investors introduced to the Company by Maxim; and



     WHEREAS, the parties desire to amend and supplement the Letter Agreement pursuant to the terms
and conditions hereof.



     NOW, THEREFORE, in consideration of the mutual premises and agreements contained herein, and
intending to be legally bound hereby, the undersigned parties hereby agree as follows:



     1. The Company hereby represents and warrants to Maxim as follows:




     i. All Company Investors are as set forth on Schedule A hereto, provided,
however, any investor that participates in the Offering that was not contacted by Maxim
shall be deemed to be a Company Investor.




     ii. It has solicited each Company Investor in connection with a proposed investment in
the Company’s securities, and neither Maxim nor any of its representatives have contacted
any Company Investor regarding the Offering. The Company shall be responsible for ensuring
that all Company Investors have been provided with adequate disclosure concerning an
investment in the Company and ensuring that each Company Investor has a reasonable
opportunity to ask questions of and receive answers from a person or persons acting on
behalf of the Company (but not Maxim) concerning an investment in the Company and the
business, financial condition, results of operations and prospects of the Company.




     iii. Each Company Investor is an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act, and each such Company Investor,
either alone or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating the merits
and risks of the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. Each Company Investor is able to bear



 









 






the economic risk of an investment in the Securities and, at the present time, is able
to afford a complete loss of such investment.




     iv. It will comply with the requirements of Federal securities laws, Blue Sky or other
similar laws of the state, jurisdiction or country in which any solicitation of a Company
Investor is made. Each such Company Investor has a prior relationship with one or more
members of the Company’s management or board of directors and was contacted directly by the
Company and not through the means of a general solicitation.




     v. The maximum aggregate subscription amount for all Company Investors in the Offering
shall be $_________. Maxim shall be entitled to receive all compensation payable pursuant
to Section 2 of the Agreement in connection with any investment by a Company Investor.



     2. If Maxim, for good reason, believes that a certain Company Investor(s) should not be
allowed to participate in the Offering, the Company will abide by such a decision, Maxim’s
exercise, for good reason, not to allow an introduced investor to participate in the Offering will
not change the Company’s representations and warranties under Section 1i-v.



     3. In addition to and in no way limiting the identification provisions of the Agreement, the
Company hereby agrees to indemnify and hold Maxim and its directors, officers, shareholders,
members, partners, employees and agents (and any other persons with a functionally equivalent role
of a person holding such titles withstanding a lack of such title or any other title), each person
who controls Maxim (within the meaning of Section 15 of the Securities Act and Section 20 of the
Securities Exchange Act of 1934, as amended), and the directors, officers, shareholders, agents,
members, partners or employees (and any other persons with a functionally equivalent role of a
person holding such titles notwithstanding a lack of such title or any other title) of such
controlling persons (each, an “Indemnified Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation that any such Indemnified Party may suffer or incur as a result of or relating to (a)
any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Amendment or (b) any action instituted against an Indemnified Party, or any of them or
their respective affiliates, by any Company Investor, with respect to any of the transactions
directly or indirectly related to the Offering. If any action shall be brought against any
Indemnified Party in respect of which indemnity may be sought pursuant to this Amendment, such
Indemnified Party shall promptly notify the Company in writing, and the Company shall have the
right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the
Indemnified Party. Any Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party except to the extent that (i) the employment thereof
has been specifically authorized by the Company in writing, or (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel, or (iii) in such action
there is, in the reasonable opinion of such separate counsel, a material conflict on any material
issue between the position of the Company and the position of such Indemnified Party, in which case
the Company shall be responsible for the reasonable fees and expenses of such separate counsel.
The indemnification obligations of this



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section shall survive the offer, sale and deliver of the Securities and the termination of the
Agreement and this Amendment and shall remain in full force and effect regardless of any
investigation made by or on behalf of any person indemnified hereunder.




     4. Except as specifically modified herein, all of the terms, provisions and conditions of the
Agreement shall remain in full force and effect and the rights and obligations of the parties with
respect thereof shall, except as specifically provided herein, be unaffected by this Amendment and
shall continue as provided in the Agreement.



     5. Any and all notices or other communications or deliveries required or permitted to be
provided hereunder shall be delivered as set forth in the Agreement.



     6. All questions concerning the construction, validity, enforcement and interpretation of this
Amendment shall be determined in accordance with the provision of the Agreement.



     7. This Amendment shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, successors, permitted assigns and legal representatives. This Amendment
shall be for the sole benefit of the parties to this Amendment and their respective heirs,
successors, permitted assigns and legal representatives and is not intended, nor shall be
construed, to give any person or entity, other than the parties hereto and their respective heirs,
successors, assigns and legal representatives, any legal or equitable right, remedy or claim
hereunder.



     8. This Amendment may be executed in counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party, it being understood that both parties need not sign
the same counterpart. In the event that any signature is delivered by facsimile transmission or by
e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such familiar or “.pdf” signature page were an original thereof.



     9. This Amendment constitutes the entire agreement among the parties with respect to the
matters covered hereby and thereby and supersede all previous written, oral or implied
understandings among them with respect to such matters.



     10. The invalidity of any portion hereof shall not affect the validity, force or effect of the
remaining portions hereof. If it is ever held that any restriction hereunder is too broad to
permit enforcement of such restriction to its fullest extent, such restriction shall be enforced to
the maximum extent permitted by law.



     11. No provision of this Amendment may be waived or amended except in a written instrument
signed, in the case of an amendment, by the Company and Maxim or, in the case of a waiver, by the
party against whom enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Amendment shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver



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of any other provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise of any such right.




     12. Each of the parties hereto acknowledges that this Amendment has been prepared jointly by
the parties hereto, and shall not be strictly construed against either party.



     IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first written
above.



	 	 	 	 	 
	 	CryoPort, Inc.

 	 
	 	By:  	/s/ Catherine Doll	 
	 	 	Name:  	Catherine Doll	 
	 	 	Title:  	CFO	 
	 
	 	MAXIM GROUP, LLC

 	 
	 	By:  	/s/ Clifford Teller	 
	 	 	Name:  	Clifford Teller	 
	 	 	Title:  	 	 



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