exv10w26






Exhibit 10.26




Underwriting Agreement




February 25, 2010




Rodman & Renshaw, LLC




As representative of the Underwriters named in Schedule I hereto,

c/o Rodman & Renshaw, LLC

1251 Avenue of the Americas, 20th Floor

New York, New York 10020



Ladies and Gentlemen:




     CryoPort, Inc., a Nevada corporation (“Company”), confirms its agreement, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of 1,666,667 shares (the “Shares”) of Common Stock, $0.001
par value per share (the “Common Stock”), and warrants (the “Warrants” and together with the
Shares, the “Securities”) to purchase an aggregate of 1,666,667 shares of Common Stock (the
“Warrant Shares”) and, at the election of the Underwriters in the circumstances specified in
Section 2 hereto, up to 250,001 additional Shares and 250,001 Warrants. The 1,666,667 Shares and
Warrants to be sold by the Company are herein called the “Firm Securities” and the 250,001
additional Shares and Warrants to be sold by the Company are herein called the “Optional
Securities.” The Firm Securities and the Optional Securities that the Underwriter elects to
purchase pursuant to Section 2 hereof are herein collectively referred to as the “Securities.”



     1. The Company represents and warrants to, and agrees with, each of the Underwriters that:



               (i) A registration statement on Form S-1 (File No. 333-162350) (as amended by all
pre-effective amendments thereto, the “Initial Registration Statement”) in respect of the
Securities has been filed with the Securities and Exchange Commission (the “Commission”). The
Initial Registration Statement and any post-effective amendment thereto have been declared
effective by the Commission; other than a registration statement, if any, increasing the size of
the offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore been filed under the Act
with the Commission; and no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any,
has been issued and, to the best of the Company’s knowledge, no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a “Preliminary Prospectus”; the
various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant



 









 







to Rule 424(b) under the Act in accordance with Section 7(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the “Registration Statement”; the
Preliminary Prospectus relating to the Securities that was included in the Registration Statement
immediately prior to the Applicable Time (as defined in Section 1(iii) hereof) is hereinafter
called the “Pricing Prospectus”; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the “Prospectus”; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called
an “Issuer Free Writing Prospectus”; all references in this Agreement to the Initial Registration
Statement, the Rule 462(b) Registration Statement, a Preliminary Prospectus, the Pricing Prospectus
and the Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to
refer to and include any documents incorporated by reference therein (the “Incorporated
Documents”), and shall include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System);



               (ii) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Rodman & Renshaw, LLC expressly for use therein,
including, without limitation the information in the Registration Statement under the heading
“Underwriting and Plan of Distribution;”



               (iii) For the purposes of this Agreement, the “Applicable Time” is 9:00 a.m. (Eastern time) on
the date of this Agreement. The Pricing Prospectus, as supplemented by the Issuer Free Writing
Prospectuses, if any, listed on Schedule II hereto, taken together as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and each Issuer Free Writing Prospectus, if any, listed on Schedule II hereto does
not conflict with the information contained in the Registration Statement, the Pricing Prospectus
or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Rodman & Renshaw, LLC expressly for
use therein, including, without limitation the information in the Registration Statement under the
heading “Underwriting and Plan of Distribution;”



2









 





               (iv) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all material respects
with the requirements of the Act and the rules and regulations of the Commission thereunder, and do
not and will not, as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading. The
representations and warranties set forth in the immediately preceding sentence shall not apply to
any statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Rodman & Renshaw, LLC expressly for use therein,
including, without limitation the information in the Registration Statement under the heading
“Underwriting and Plan of Distribution;”



               (v) Each of the Incorporated Documents conformed when so filed in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
applicable rules and regulations of the Commission thereunder and did not, as of their respective
filing dates, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;



               (vi) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to be a part thereof that has not
been superseded or modified. The representations and warranties set forth in the immediately
preceding sentence shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through Rodman &
Renshaw, LLC expressly for use therein;



               (vii) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in or incorporated by reference into the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth, contemplated or incorporated by reference in
the Pricing Prospectus, except for such loss or interference as would not, individually or in the
aggregate, have a material adverse effect on the business, prospects, operations, assets, condition
(financial or otherwise), shareholders’ equity or results of operations of the Company and its
consolidated subsidiaries taken as a whole (a “Material Adverse Effect”); and, since the respective
dates as of which information is given in the Registration Statement and the Pricing Prospectus,
(A) there has not been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries other than grants of stock options to employees of the Company pursuant to the
Company’s equity incentive plans in the ordinary course of business, the issuance of shares of
Common Stock upon the conversion of outstanding convertible debentures and promissory notes and the
issuance of shares of Common Stock upon the exercise of warrants and stock options by existing
security holders of the Company in



3









 







the ordinary course of business or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, prospects, operations, assets,
condition (financial or otherwise) or results of operations of the Company and its consolidated
subsidiaries taken as a whole, (B) the Company and its subsidiaries, considered as one entity, have
not incurred any material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or agreement not in the
ordinary course of business; and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or repurchase or redemption by
the Company or any of its subsidiaries of any class of capital stock, in each case, other than as
set forth or contemplated in the Pricing Prospectus;



               (viii) Except as set forth in the Pricing Prospectus, the Company and its subsidiaries do not
own any real property. Except as set forth in the Pricing Prospectus, the Company and its
subsidiaries have good and marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects, except such as do not materially affect the
value of such property or do not interfere with the use made of such property by the Company and
its subsidiaries or would not reasonably be expected to result in a Material Adverse Effect; and
any real property and buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as would not reasonably be
expected to result in a Material Adverse Effect;



               (ix) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Nevada, with corporate power and authority to own or hold
its properties and conduct its business as described in the Pricing Prospectus, and is duly
qualified as a foreign corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure to have such power or authority or to
be so qualified and in good standing in any such jurisdiction would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; and each subsidiary of the
Company has been duly formed, incorporated or organized and is validly existing and in good
standing under the laws of its jurisdiction of formation, incorporation or organization and each
subsidiary of the Company has been duly qualified for the transaction of business and is in good
standing under the laws of each other jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except where the failure to be so
qualified and in good standing in any such jurisdiction would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;



               (x) All of the issued and outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable, and have been issued in
compliance in all material respects with all applicable U.S. federal and state securities laws or
pursuant to an exemption thereto and conform in all material respects to the description of the
capital stock set forth in the Pricing Prospectus and the Prospectus; all of the shares of capital
stock of each subsidiary of the Company have been duly authorized and are validly issued, fully
paid and non-assessable, have been issued in compliance with all applicable U.S. federal and state
securities laws or



4









 







pursuant to an exemption thereto and are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims, except to such extent as would not, individually or in the
aggregate, have a Material Adverse Effect. None of the outstanding shares of capital stock of
the Company were issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than as set forth in the Pricing
Prospectus and the Prospectus;



               (xi) Each of this Agreement and the Underwriter’s Warrant Agreement (as defined herein) has
been duly authorized, executed and delivered by the Company, and is a valid and binding agreement
of the Company, enforceable in accordance with its terms, except as enforcement my be limited by
(i) state or federal securities laws or policies relating to the non-enforceability of the
indemnification or contribution provisions contained herein (ii) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting
the enforcement of rights and remedies of creditors generally or (iii) general equitable
principles;



               (xii) The Securities, the Warrants Shares and the Securities underlying the Underwriter’s
Warrants (as defined herein) have been duly authorized and, when issued and delivered against
payment therefore as provided herein, will be validly issued, fully paid and non-assessable. The
Securities and the Underwriter’s Securities conform in all material respects to all statements with
respect thereto contained in the Pricing Prospectus and the Prospectus. When paid for and issued in
accordance with the Underwriter’s Warrant Agreement, the holders thereof will not be subject to
personal liability by reason of being such holders and shares of Common Stock and Warrants
underlying the Underwriter’s Warrant are not and will not be subject to the preemptive rights of
any holders of any security of the Company or similar contractual rights granted by the Company;
and all corporate action required to be taken for the authorization, issuance and sale of the
Underwriter’s Warrants has been duly and validly taken;



               (xiii) There are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under the
Act with respect to any securities of the Company or to require the Company to include such
securities with the Securities registered pursuant to the Initial Registration Statement other than
as described in the Pricing Prospectus and the Prospectus, or as have been satisfied, or waived in
writing, in connection with the offering contemplated hereby;



               (xiv) The issue and sale of the Securities and the Underwriter’s Warrants and the compliance
by the Company with all of its obligations under this Agreement, the Underwriter’s Warrant
Agreement and the consummation of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default
under, or give rise to a right of termination under, or result in the acceleration of any
obligation under any statute, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any



5









 







of its subsidiaries is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, except for such conflicts, breaches, defaults, violations or rights
as would not, individually or in the aggregate, have a Material Adverse Effect, nor will such
action result in any violation of (A) the provisions of the Amended and Restated Articles of
Incorporation or By-laws of the Company or any of its subsidiaries or (B) any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties, except in the case of clause (B) for such
violations as would not reasonably be expected to have a Material Adverse Effect;



               (xv) No consent, approval, authorization, order, registration, qualification, permit, license,
exemption, filing or notice (each an “Authorization”) of, from, with or to any court, tribunal,
government, governmental or regulatory authority, self-regulatory organization or body (each, a
“Regulatory Body ”) is required for the issue and sale of the Securities and the Underwriter’s
Warrants by the Company or the consummation by the Company of the transactions contemplated by this
Agreement and the Underwriter’s Warrant Agreement, except (A) the registration of the Securities
under the Act; (B) such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter; (C) such Authorizations as may be required under
the rules and regulations of the Financial Industry Regulation Authority, Inc. (“FINRA”); (D) such
Authorizations as may be required under the rules and regulations of The Over The Counter Bulletin
Board (“OTC BB”); and (E) such other Authorizations the absence of which would not, individually
or in the aggregate, have a Material Adverse Effect; and no event has occurred that has resulted
in, or after notice or lapse of time or both would reasonably be expected to result in, or would
otherwise reasonably be expected to result in revocation, suspension, termination or invalidation
of any such Authorization or any other impairment of the rights of the holder or maker of any such
Authorization;



               (xvi) All corporate actions (including those of stockholders) necessary for the Company to
consummate the transactions contemplated in this Agreement have been obtained and are in effect;



               (xvii) Neither the Company nor any of its subsidiaries is (A) in violation of its Amended and
Restated Articles of Incorporation or By-laws or other organizational documents or (B) in default
in the performance or observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound, except for such defaults
specified under subparagraph (B) herein that would not, individually or in the aggregate, have a
Material Adverse Effect;



               (xviii) The statements set forth in the Pricing Prospectus and the Prospectus under the
captions “The Offering” and “Description of Capital Stock,” insofar as they purport to constitute a
summary of the terms of the Securities, and under the caption “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents referred to therein are accurate
summaries of such provisions in all material respects;



6









 





               (xix) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect; and, no such proceedings are threatened or to the
Company’s knowledge contemplated by governmental authorities or threatened by others;



               (xx) There are no statutes, regulations, contracts or other documents that are required to be
described in the Pricing Prospectus and no contracts or other documents required to be filed or
incorporated by reference as exhibits to the Initial Registration Statement that are not described
or filed or incorporated as required;



               (xxi) The Company is not and, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof, will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);



               (xxii) At the time of filing the Initial Registration Statement, the Company was not an
“ineligible issuer,” as defined in Rule 405 under the Act;



               (xxiii) KMJ Corbin & Company LLP, who have audited certain financial statements of the Company
and its subsidiaries, is an independent registered accounting firm as required by the Act and the
rules and regulations of the Commission thereunder;



               (xxiv) The consolidated financial statements of the Company and its subsidiaries, including
all notes and schedules thereto, included in or incorporated by reference into the Initial
Registration Statement, the Pricing Prospectus and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries at the dates indicated and the
statement of income, stockholders’ equity and cash flows of the Company and its subsidiaries for
the periods specified in conformity with generally accepted accounting principles, consistently
applied throughout the periods involved, other than as may be expressly stated in the related notes
thereto and, with respect to unaudited periods other than routine year-end adjustments which are
not material individually or in the aggregate; no other financial statements or supporting
schedules are required to be included in the Initial Registration Statement, the Pricing Prospectus
and the Prospectus;



               (xxv) The Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of
the Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;



7









 





               (xxvi) Since the date of the latest audited financial statements of the Company included in or
incorporated by reference into the Pricing Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting;



               (xxvii) Except as disclosed in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, the Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act.
Such disclosure controls and procedures (A) are designed to ensure that material information
relating to the Company and its subsidiaries is made known to the Company’s principal executive
officer and principal financial officer by others within those entities; (B) have been evaluated
for effectiveness as of March 31, 2009; and (C) to the knowledge of the Company are effective to
perform the functions for which they were established;



               (xxviii) There are no off-balance sheet arrangements, outstanding guarantees or other
contingent obligations of the Company that could reasonably be expected to have a Material Adverse
Effect;



               (xxviii) The Company’s Chief Executive Officer and Chief Financial Officer have reviewed and
agreed with the selection, application and disclosure of critical accounting policies and have
consulted with the Company’s independent registered public accounting firm with regard to such
disclosure;



               (xxix) No relationship, direct or indirect, exists between or among the Company, on the one
hand, and any director, officer, stockholder, customer, licensor or supplier of the Company, on the
other hand, which is required to be described in the Initial Registration Statement, the Pricing
Prospectus or the Prospectus and which is not so described. There are no outstanding loans,
advances or guarantees of indebtedness by the Company to or for the benefit of any of the executive
officers or directors of the Company, except as disclosed in the Initial Registration Statement,
the Pricing Prospectus and the Prospectus;



               (xxx) To the knowledge of the Company, no person associated with or acting on behalf of the
Company, including without limitation any director, officer, agent or employee of the Company or
its subsidiaries has, directly or indirectly, while acting on behalf of the Company or its
subsidiaries (A) used any corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity, (B) made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic political parties or campaigns
from corporate funds, (C) violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended or (D) made any other unlawful payment;



               (xxxi) Except as contemplated by this Agreement and as set forth in the Initial Registration
Statement, the Pricing Prospectus and the Prospectus, no person is entitled to



8









 







receive from the Company a brokerage commission, finder’s fee or other like payment in
connection with the transactions contemplated herein;



               (xxxii) Neither the Company nor any of its subsidiaries or controlled affiliates does business
with the government of, or with any person located in any country in a manner that violates in any
material respect any of the economic sanctions programs or similar sanctions-related measures of
the United States as administered by the United States Treasury Department’s Office of Foreign
Assets Control; and the net proceeds from the offering contemplated by this Agreement will not be
used to fund any operations in, finance any investments in or make any payments to any country, or
to make any payments to any person, in a manner that violates any of the economic sanctions of the
United States administered by the United States Treasury Department’s Office of Foreign Assets
Control;



               (xxxiii) Statistical, industry-related and market-related data included in the Initial
Registration Statement, the Pricing Prospectus and the Prospectus are based on or derived from
sources that the Company reasonably and in good faith believes are reliable and accurate in all
material respects;



               (xxxiv) The Company has not distributed and will not distribute prior to the last Time of
Delivery (as defined in Section 6 hereof) and completion of the distribution of the Securities, any
offering material in connection with the offering and sale of the Securities other than the Initial
Registration Statement, the Pricing Prospectus and the Prospectus or such other materials reviewed
by the Underwriter or otherwise required by applicable law;



               (xxxv) Except as set forth in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, no material labor dispute with the employees of the Company or any of its
subsidiaries exists, or, to the knowledge of the Company, is imminent; and the Company has no
knowledge of any existing, threatened or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors other than as would not reasonably be expected to
have a Material Adverse Effect;



               (xxxvi) Except as set forth in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, (A) the Company and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective business, other than those the failure of which to possess would not
reasonably be expected to have a Material Adverse Effect, and (B) neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the revocation or modification
of any such certificate, authorization or permit which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a
Material Adverse Effect;



9









 





               (xxxvii) The Company and its subsidiaries (A) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (B) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and (C) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect;



               (xxxviii) The Company and its subsidiaries own or possess and/or have been granted valid and
enforceable licenses for, all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a Material Adverse Effect;



               (xxxix) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are customary in the businesses
in which they are engaged; and neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect;



               (xl) None of the Company and its subsidiaries, nor to the knowledge of the Company, any of the
Company’s or its subsidiaries’ directors, officers or controlling persons, have taken or will take,
directly or indirectly, any action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of the Common Stock or the Warrants to
facilitate the sale or resale of the Securities which is otherwise prohibited by Regulation M under
the Act;



               (xli) Except as disclosed in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, the Company and its subsidiaries have filed all necessary



10









 







federal and state income and franchise tax returns or have received extensions thereof and
have paid all taxes shown on such returns to be required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any of them except for
any assessment, fine or penalty that is currently being contested in good faith except where
failure to file such returns or pay, or make provision to pay, all such taxes and assessments would
not reasonably be expected to have a Material Adverse Effect. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred to in paragraph
1(xxiv) above in respect of all federal and state income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been finally determined.
Except as set forth in the Initial Registration Statement, the Pricing Prospectus and the
Prospectus, the Company has no knowledge of any tax deficiency which might be asserted against the
Company or any subsidiary which could reasonably be expected to result in a Material Adverse
Effect;



               (xlii) Except as disclosed in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, the Common Stock and Warrants are registered pursuant to Section 12(b) of the
Exchange Act and approved for trading on the OTC BB, and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the Common Stock or the
Warrants under the Exchange Act or terminating the approval for listing of the Common Stock or the
Warrants from the OTC BB, nor has the Company received any notification that the Commission, OTC BB
or FINRA contemplates terminating such registration or listing;



               (xliii) The Company and its subsidiaries and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, its
subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material
respects with ERISA. “ERISA Affiliate ” means, with respect to the Company or a subsidiary, any
member of any group of organizations described in Sections 414(b),(c),(m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the
“Code”) of which the Company or such subsidiary is a member. No “reportable event” (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit
plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such qualification; neither the Company nor
any of its subsidiaries is subject to, nor do any of its employees benefit from, whether pursuant
to applicable employment laws, regulations, extension orders or



11









 







otherwise, any agreement, arrangement, understanding or custom with respect to employment
(including, without limitation, termination thereof);



               (xliv) There is and has not been any failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply in all material respects
with any provision of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications;



               (xlvii) Except as described in the Pricing Prospectus and the Prospectus, the Company has not
made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a
finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the
Company or introducing to the Company persons who raised or provided capital to the Company; (ii)
to any FINRA member; or (iii) to any person or entity that has any direct or indirect affiliation
or association with any FINRA member, within the twelve months prior to the date hereof;



               (xlviii) None of the net proceeds of the offering will be paid by the Company to any
participating FINRA member or its affiliates, except as specifically authorized herein; and



               (xlix) No officer, director or any beneficial owner of the Company’s unregistered securities
has any direct or indirect affiliation or association with any FINRA member (as determined in
accordance with the rules and regulations of FINRA) except as set forth in the Initial Registration
Statement, the Pricing Prospectus and the Prospectus. The Company will advise Rodman & Renshaw,
LLC and Sichenzia Ross Friedman Ference LLP if it learns that any officer, director or owner of at
least 5% of the Company’s outstanding Common Stock (or securities convertible into Common Stock) is
or becomes an affiliate or associated person of a FINRA member participating in the offering.



     2. Subject to the terms and conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price per Firm Security of $2.75, the number of Firm
Securities set forth opposite its name in Schedule I hereto and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Securities as provided
below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agree,
severally and not jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, the number of Optional Securities set forth opposite its name in
Schedule I hereto.



     The Company, as and to the extent indicated in Schedule I hereto, hereby grants to the
Underwriters the right to purchase at their election up to 250,001 shares of Common Stock and
Warrants or fifteen (15%) percent of the Firm Securities sold in the offering from the
Company (the “Optional Securities”) at the purchase price per Optional Share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm
Securities. Any such election to purchase Optional Securities may be exercised only by written
notice from you to the



12









 




Company, given within a period of 45 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Securities to be purchased and the date on which
such Optional Securities are to be delivered, as determined by you but in no event earlier than the
Time of Delivery or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.




     3. Upon the authorization by you of the release of the Firm Securities, the several
Underwriters propose to offer the Firm Securities for sale upon the terms and conditions set forth
in the Prospectus.



     4. In consideration for the payment of $100, the Company hereby agrees to issue and sell to
Rodman & Renshaw, LLC (and/or its designees) at the Time of Delivery (as defined below) warrants
(“Underwriter’s Warrants”) for the purchase of an aggregate of 83,333 shares of Common Stock. The
Underwriter’s Warrants are subject to a 180-day lockup pursuant to FINRA Rule 5110(g)(1). The
Underwriter’s Warrants as evidenced by the Underwriter’s Warrant Agreement in the form attached
hereto as Exhibit A, shall be exercisable, in whole or in part, commencing one (1) year after the
date hereof and expiring five (5) years after the date hereof at an initial exercise price per
Share of $3.75. The Underwriter’s Warrants and the shares of Common Stock issuable upon exercise
thereof are sometimes referred to herein collectively as the “Underwriter’s Securities.” The
Underwriter understands and agrees that there are significant restrictions pursuant to FINRA Rule
5110 against transferring the Underwriter’s Warrants and the shares of Common Stock and Warrants
issuable upon exercise thereof and by its acceptance thereof shall agree that it will not, sell,
transfer, assign, pledge or hypothecate the Underwriter’s Warrants, or any potion thereof, or be
the subject of any hedging, short sale, derivative, put or call transaction that would result in
the effective economic disposition of such securities for a other than in accordance with Rule
5110.



     5. Delivery and payment for the Underwriter’s Warrants shall be made at the Time of Delivery
and shall be issued in the name or names and in such authorized denominations as the Underwriter
may request upon at least three business days’ prior notice to the Company.



     6. The Company will deliver the Securities to the Underwriter against receipt of payment of
the purchase price therefore by wire transfer of Federal (same-day) funds to the account specified
by the Company pursuant to written instructions of the Company. The time and date of such delivery
and payment shall be, with respect to the Securities, 9:30 a.m., New York time, on March 2, 2010,
or such other time and date as the Company and the Underwriter shall agree, and upon satisfaction
by the Company of all of the conditions to closing set forth in this Agreement (the “Time of
Delivery”). If the Underwriter so requests, delivery of the Firm Securities and Optional
Securities, if any, shall be made by credit through full fast transfer to the accounts at the
Depositary Trust Company designated by the Underwriter. The documents to be delivered at the Time
of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross
receipt for the Securities and any additional documents requested by the Underwriter pursuant to
Section 8(h) hereof, will be delivered at the offices of Sichenzia Ross Friedman Ference LLP (the
“Closing Location”). A meeting will be held at the Closing Location at 3:00 p.m., New York City
time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes



13









 




of this Section 6, “New York Business Day” means any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions are authorized or obligated by law to close in
New York City. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.




     This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, on the one hand, and the Underwriters, or any of them, on the other, with
respect to the subject matter hereof.



     The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.



     7. The Company agrees with each of the Underwriters:



          (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement; or, if applicable, such
earlier time as may be required by Rule 430(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to the Time of Delivery which
shall not be reviewed by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you with copies thereof (including copies of any Incorporated Documents);
to file promptly all material required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the use of
any preliminary prospectus or other prospectus in respect of the Securities, of the suspension of
the qualification of the Securities for offering or sale in any jurisdiction, of the receipt of any
notification with respect to the withdrawal of the approval of the shares of Common Stock and/or
Warrants for quotation on the OTC BB, or the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of any preliminary
prospectus or other prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order; if required by Rule






14









 







430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file
such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by
Rule 424(b) under the Act, and to make no further amendment or supplement to such form of
prospectus which shall not be reviewed by you promptly after reasonable notice thereof;




          (b) Promptly, from time to time, to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction;




          (c) Prior to 10:00 A.M., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request (including copies of any Incorporated Documents), and, if the delivery of a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any events shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made when such Prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or supplement the Prospectus in
order to comply with the Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written and electronic copies as
you may from time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such compliance (including
copies of any Incorporated Documents), and in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection
with sales of any of the Securities at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act (including copies of any
Incorporated Documents);




          (d) To make generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);




          (e) Unless otherwise publicly available in electronic format on the website of the Company or
filed with the Commission, to furnish to its shareholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of income,






15









 







stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified
by independent public accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective
date of the Registration Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such quarter in reasonable detail;




          (f) During a period of three years from the effective date of the Registration Statement,
unless otherwise publicly available in electronic format on the website of the Company or filed
with the Commission, to furnish to you copies of all reports or other communications (financial or
other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the Commission or any national
securities exchange or quotation system on which any class of securities of the Company is listed
or quoted; and (ii) such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its stockholders generally or to the Commission);




          (g) To maintain, at its expense, a registrar and transfer agent for the Common Stock;




          (h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Prospectus under the caption
“Use of Proceeds”;




          (i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act;




          (j) To refrain from taking at any time, directly or indirectly, any action designed or that
might reasonably be expected to cause or result in, or that will constitute, stabilization of the
price of the shares of any security of the Company;




          (k) The Company and its subsidiaries will comply, in all material respects, with all
effective applicable provisions of the Sarbanes-Oxley Act;




          (l) As of the closing of the offering contemplated by this Agreement, the Company shall have
retained a financial public relations firm reasonably acceptable to Rodman & Renshaw, LLC, and the
Company shall retain such firm or another firm for a period of not less than two years after the
closing of the offering.




     8. (a) The Company represents and agrees that, without the prior consent of Rodman &
Renshaw, LLC, it has not made and will not make any offer relating to the Securities that would
constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and Rodman & Renshaw, LLC, it



16









 




has not made and will not make any offer relating to the Securities that would constitute a
free writing prospectus; any such free writing prospectus the use of which has been consented to by
the Company and Rodman & Renshaw, LLC is listed on Schedule II hereto;




          (b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show;




          (c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Rodman & Renshaw, LLC
and, if requested by Rodman & Renshaw, LLC, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through Rodman &
Renshaw, LLC expressly for use therein.




          (d) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company covenants and agrees with the Underwriters that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the registration of the Securities under the
Act and all other expenses in connection with the preparation, printing, reproduction and filing of
the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof
to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities laws as provided in
Section 7(b) hereof, including legal fees for counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey, which fees shall equal $5,000; (iv) all
fees and expenses in connection with listing the Securities on the OTC BB; (v) the cost of
preparing stock and warrant certificates; (vi) the cost and charges of any transfer agent or
registrar; (vii) the costs and expenses of the Company relating to investor presentations on any
“road show” undertaken in connection with the marketing of the offering of the Securities,
including, without limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, including reimbursement of up
to $10,000 of such actual accountable “road show” costs and expenses






17









 







described in this clause (vii) incurred by the Underwriters with the prior written approval of
the Company; (viii) all fees, expenses and disbursements relating to background checks of the
Company’s officers and directors in an amount not to exceed $5,000 per individual; and (ix) the
costs and expenses incurred by Rodman & Renshaw, LLC for the use of i-Deal’s book building,
prospectus tracking and compliance software for the offering in an amount not to exceed $16,000.
The Company further agrees that on the closing date it will pay to Rodman & Renshaw, LLC a
non-accountable expense allowance equal to one percent (1.00%) of the gross proceeds received by
the Company from the sale of the Firm Securities by deduction from the proceeds of the offering
contemplated herein. Except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of its counsel, stock
transfer taxes on resale of any of the Securities by it, and any advertising expenses connected
with any offers it may make.




          (e) The obligations of the Underwriters hereunder, as to the Securities to be delivered at the
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of the Time of Delivery,
true and correct (except for such representations and warranties that are qualified by materiality,
which shall be true and correct as so qualified), the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:




          a. The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 7(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433; no stop order suspending the
effectiveness of the Initial Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by the Commission; and no
stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction;




          b. Snell & Wilmer L.L.P., counsel for the Company, shall have furnished to you their written
opinion, dated the Time of Delivery, in the form attached as Annex I(a) hereto;




          c. On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, KMJ
Corbin & Company LLP shall have furnished to you a letter, dated the date of delivery thereof, in
form and substance satisfactory to you and substantially in the form delivered to you prior to the
date hereof, containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements, and with respect to
certain financial information, contained in the Registration Statement, the Pricing Prospectus and
the Prospectus; provided that the letter delivered at the Time of Delivery shall use a “cut-off
date” not earlier than three days prior to the date hereof;







18









 








          d. (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements filed with the Commission as part of the Registration
Statement and included in the Pricing Prospectus and the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which
information is given in the Pricing Prospectus and the Prospectus there shall not have been any
change in the capital stock or long-term debt (other than due to the conversion of convertible
debentures or promissory notes) of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the business, operations, assets,
condition (financial or otherwise) or results of operations of the Company and its consolidated
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus and the
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the
judgment of Rodman & Renshaw, LLC so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities being delivered
at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus and
the Prospectus;




          e. On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or on the OTC BB; (ii) a suspension or material limitation in trading in the Company’s securities
on the OTC BB, if such securities are then trading on such market; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York or Delaware authorities or a
material disruption in commercial banking or securities settlement or clearance services in the
United States; (iv) the outbreak or escalation of major hostilities involving the United States or
the declaration by the United States of a national emergency or war or (v) the occurrence of any
other major national or international calamity or crisis or any substantial change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;




          f. The Firm Securities and Optional Securities, if any, to be sold at the Time of Delivery
shall have been duly approved for quotation on the OTC BB and the Company shall have complied with
all obligations of the OTC BB relating to the sale of the Securities;




          g. The Company shall have complied with the provisions of Section 7(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;




          h. The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its respective obligations hereunder to be performed at or
prior to the Time of Delivery, and as to such other matters as you may reasonably request, and the
Company


19









 







shall have furnished or caused to be furnished certificates as to the matters set forth in
subsections (a) and (d) of this Section;




          i. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting
terms and arrangements;




          j. On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;




          k. On or prior to the Closing Date, each officer, director and shareholder beneficially owning
3% or more of the Company’s Common Stock shall have entered into a lock-up agreement with Rodman &
Renshaw, LLC, in form acceptable to Rodman & Renshaw, LLC pursuant to which such persons shall
agree not to sell any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for shares of Common Stock, subject to certain exceptions, for a period of not less
than 180 days from the date of this prospectus without the prior written consent of Rodman &
Renshaw, LLC, as representatives of the underwriters.




     8B. For a period of twelve (12) months from the Closing Date, the Company will grant Rodman &
Renshaw, LLC the right of first refusal to act as, in the Company’s discretion, lead underwriter or
minimally as a co-manager with at least 50% of the economics, or, in the case of a
three-underwriter or placement agent transaction, 33% of the economics, for each and every future
public and private equity and public debt offerings during such twelve (12) month period of the
Company, or any successor to or any subsidiary of the Company.



     9. (a) The Company will indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act from and against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any Prospectus or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or arise out of an untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free
Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Incorporated
Documents or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading or (ii) any inaccuracy in the representations and warranties of the
Company contained herein or any failure of the Company to perform its obligations hereunder or
under the law in connection with the transactions contemplated by this Agreement, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action



20









 




or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, or any Preliminary Prospectus, the Pricing Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Incorporated Documents in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Rodman & Renshaw, LLC expressly for use therein.




          (b) Each Underwriter will indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act from and against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not
misleading or arise out of an untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus
or the Prospectus, or any amendment or supplement thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, or any Preliminary Prospectus,
the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Rodman & Renshaw, LLC expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such expenses are incurred.




          (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party except to the extent such
indemnifying party has been materially prejudiced by such failure. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement






21









 







or compromise of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.




          (d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), the
Underwriters shall not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.







22









 








          (e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Act.




     10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for
you or another party or other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not arrange for the purchase
of such Securities, then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the Company shall have the
right to postpone a Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement with respect to such Securities.



          (b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Securities to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.




          (c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Securities to be purchased at such Time of Delivery, or if the
Company shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon






23









 







terminate, without liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in Section 8 hereof
and the indemnity and contribution agreements in Section 10 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.




     11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities..



     12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall
not then be under any liability to any Underwriter except as provided in Sections 10 and 12 hereof;
but, if for any other reason any Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for actual accountable
out-of-pocket expenses in accordance with FINRA Rule 5110(f)(2)(D) approved in writing by you,
including fees and disbursements of counsel (in an amount not to exceed $100,000), reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further liability to any
Underwriter in respect of the Securities not so delivered except as provided in Sections 10 and 12
hereof.



     13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly or by Rodman & Renshaw, LLC on behalf of
you as the representatives. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to you as the representatives in care of:


Rodman and Renshaw, LLC

1251 Avenue of Americas, 20th Floor

New York, New York 10020

Attn: General Counsel

Fax No.: 646.841.1640



Copy to:



Sichenzia Ross Friedman Ference LLP

61 Broadway, 32nd Floor

New York, New York 10006

Attn: Gregory Sichenzia, Esq.

Fax: 212.930.9725





and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to
the



24









 







address of the Company set forth in the Registration Statement, Attention: Secretary. Any
such statements, requests, notices or agreements shall take effect upon receipt thereof.



     14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 10 and 11 hereof, the officers
and directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.



     15. Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision,
nor to in any way effect the validity of this Agreement or any provision hereof or the right of any
of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver
of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall
be effective unless set forth in a written instrument executed by the party or parties against whom
or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.



     16. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising out of, or relating
in any way to this Agreement shall be brought and enforced in the courts of the State of New York
of the United States of America for the Southern District of New York, and irrevocably submits to
such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid, addressed to it at the
address set forth in Section 13 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or claim. The Company agrees that the
prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all
of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefore.



     17. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.



     18. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction contemplated by this Agreement and all materials of any kind (including tax opinions
and other tax analyses) provided to the Company relating to that treatment and structure, without
any Underwriter imposing any limitation of any kind. However, any information relating to the tax
treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply)
to the



25









 




extent necessary to enable any person to comply with securities laws. For this purpose, “tax
structure” is limited to any facts that may be relevant to that treatment.




     19. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, on the one hand, and the Underwriters, on the other, with respect only
to the firm commitment registered offering of the Securities referenced herein.



[Signature Page Follows]








26









 








     If the foregoing is in accordance with your understanding, please sign and return to us one
for the Company and each of the Representatives plus one for each counsel, of any counterparts
hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter
and such acceptance hereof shall constitute a binding agreement among each of the Underwriters and
the Company.



	 	 	 	 	 
	 	Very truly yours,



CryoPort, Inc.

 	 
	 	By:  	/s/ Larry G. Stambaugh	 
	 	 	Name:  	Larry G. Stambaugh	 
	 	 	Title:  	Chairman & CEO	 
	 



	 	 	 	 	 
	Accepted as of the date hereof at New York, New York





Rodman & Renshaw, LLC, on behalf of each of the Underwriters

 	 	 
	By:  	/s/ John Borer	 	 
	 	Name:  	John Borer	 	 
	 	Title:  	Senior Managing Director	 	 
	 



(Signature Page to Underwriting Agreement)









 









 








SCHEDULE I




	 	 	 	 	 	 	 	 	 
	 	 	Total Number of	 	Total Number of
	 	 	Firm Securities	 	Optional Securities
	Underwriters	 	to be Purchased	 	to be Purchased
	Rodman & Renshaw, LLC
	 	 	1,666,667	 	 	 	250,001	 






 









 






SCHEDULE II




ISSUER FREE WRITING PROSPECTUSES


None.









 









 








ANNEX I(a)




FORM OF OPINION OF COMPANY COUNSEL