Amendment No. 1 to Securities Purchase Agreement, dated October 1, 2020, by and among Cryoport Inc., Cryoport Netherlands B.V. and the other parties thereto

Exhibit 10.2

AMENDMENT N°1 TO THE SECURITIES PURCHASE AGREEMENT WITH RESPECT TO ADVANCED THERAPY LOGISTICS AND SOLUTIONS SAS

This amendment n°1 to the securities purchase agreement with respect to Advanced Therapy Logistics And Solutions SAS dated as of August 21^st, 2020 (the “Amendment Agreement”) is entered into by and between:

On the one hand,

And each of:

On the other hand.

The Purchaser and the Sellers are hereinafter referred to collectively as the "Parties" and individually as a "Party".

In the presence of:

Capitalized terms not otherwise defined in this Amendment Agreement shall have the meaning ascribed to them in the Securities Purchase Agreement (as this term is defined below).

Whereas:

It is hereby agreed as follows:

“"Actual Closing Net Debt" means the actual Net Debt of the Group Companies as at 30 September 2020 as resulting from the Closing Balance Sheet as finally determined and agreed between the Sellers’ Representative and the Purchaser or as otherwise determined in accordance with Section 3.4(d);”.

“"Actual Closing Working Capital" means the actual Working Capital of the Group Companies as at 30 September 2020 as resulting from the Closing Balance Sheet as finally determined and agreed between the Sellers’ Representative and the Purchaser or as otherwise determined in accordance with Section 3.4(d);”.

“(iii) “CFE Recovery”: the difference between (1) the total amount of CFE (cotisations foncières des entreprises) to be recovered by the French subsidiaries amounting to two hundred and ten thousand (EUR 210,000.00) (such amount is a fixed amount, mutually agreed by the Parties as such) and (2) the amount of CFE actually recovered at 30 September 2020 or, and without double counting, accounted in the Working Capital;

(iv) A fixed amount of one hundred sixteen thousand euros (EUR 116,000.00) placed in an escrow account for the benefit of Spirit as part of the new Tremblay lease, it being understood that this amount shall be decreased by the amount already recovered at 30 September 2020 or, and without double counting, the amount accounted in the Working Capital”.

The other provisions of the definition of "Cash" of the Securities Purchase Agreement shall remain unchanged.

"Existing Indebtedness" means all outstanding and unpaid amounts owing as at 30 September 2020 (in principal, interest, penalties and any other sums) by the Group Companies, pursuant to, or in connection with, the Existing Facilities (including, without limitation, all break fees due in connection with the voluntary prepayment of any sums due by the Company pursuant to, or in connection with the Existing Facilities), as determined in accordance with the terms of the Existing Facilities.”.

“(iii) deferred purchase price of assets, property, securities, goods or services (in each case, other than in the ordinary course of business) including the non-contingent amount of any current or future obligations under any “earn-outs” or similar obligations (including, if non-contingent, (i) any amounts due to former owners of any Group Company or “Company notes” payable, and (ii) any amounts payable attributable to the period prior to 30 September 2020,

(…)

(ix) “Remaining Carve-Out Costs”: the difference between (1) one million four hundred thirty-two thousand euros (EUR 1,432,000.00) which corresponds to the budgeted carve-out costs (IT, rebranding, relocation from Bobigny to Tremblay, SAGE, accounting and finance) excl. VAT or its foreign equivalent as mutually agreed upon by the Parties and (2) carve-out costs, excl. VAT, having already being accounted as of 30 September 2020 (to the extend paid on or prior to 30 September 2020 or reflected in Working Capital), it being understood that if the Closing Date were 30-June-2020, the Remaining Carve-Out Costs would be one million two hundred thousand euros (EUR 1,200,000.00) as mutually agreed upon by the Parties,

(x) “Pension Costs”: an amount of one hundred seventy-six thousand euros (€176,000) for the purpose of the accrued and unpaid obligations in respect of severance due (and that should reasonably be payable during a period not exceeding 10 years after 30 September 2020) as mutually agreed upon by the Parties,

(…)

(xii) “Unpaid Settlement Not Covered”: the difference, if it is a positive amount, between (1) one hundred thousand euros (EUR 100,000.00) and (2) costs already accounted before 30 September 2020 (to the extend paid on or prior to 30 September 2020 or reflected in Working Capital) regarding the on-going litigation in Israel between PDP Courier Services Ltd and PDP Israël Ltd., an Israeli company registered under number ###-###-#### with the trade and companies registry (including costs and expenses incurred in connection to the litigation), it being understood that if the Closing Date were 31-July-2020, the Unpaid Settlement Not Covered would be fifty-nine thousand and one hundred euros (EUR 59,100.00),

(…)

(xvii) any amounts owed (and not paid at 30 September 2020) to Sellers or their Affiliates other than salary or compensation due to individual Sellers that are also an officer of employee of a Group Company solely for their salary or compensation for such services and excluding any compensation arising out of the AL/Hivest Transaction or the transactions contemplated by this Agreement,”.

The other provisions of the definition of "Indebtedness" of the Securities Purchase Agreement shall remain unchanged.

“"Leakage" means, other than Permitted Leakage, the sum of the amounts resulting from any of the following events to the extent it would occur after the Effective Date and prior to, or as of, 30 September 2020 without being taken into account in the Purchase Price, Actual Closing Net Debt (notably through a decrease of the Cash or an Increase of the Indebtedness) or Actual Closing Working Capital (through, for example, an increase in payables and/or provisions):

(…)

(ii) any Transaction Costs incurred prior to 30 September 2020, not included in the Actual Closing Net Debt or the Actual Closing Working Capital, and to be paid after 30 September 2020;”.

The other provisions of the definition of "Leakage" of the Securities Purchase Agreement shall remain unchanged.

““Transaction Costs” means any fees, expenses or other costs agreed to be paid or paid by any Group Company after 30 September 2020 or prior to or on 30 September 2020 but not included in the Actual Net Debt or in the Actual Working Capital, in respect of (i) the Transaction or the transactions contemplated by this Agreement by any Group Company (to the extent such fees, expenses or other costs are paid or payable for the sole account of the Sellers) and (ii) the AL/Hivest Transaction or the transactions contemplated by the AL SPA by any Group Company (but excluding any Remaining Carve-out Costs). The amounts of the Transaction Costs as at 21 August 2020 are in Section 13.6.1 of the Data Room (minor changes may be expected as of 30 September 2020);”.

“in each case as finally determined in accordance with Section 3.4(d) (the "Purchase Price").”.

The other provisions of clause 3.1(a) of the Securities Purchase Agreement shall remain unchanged.

“Closing Balance Sheet; Computation of Post-Closing Adjustment. Within sixty (60) Business Days after the Closing Date, the Purchaser shall procure that the Company prepare a consolidated balance sheet (bilan consolidé) as at the start of business on 30 September 2020 (the "Closing Balance Sheet"), in the same format as the balance sheet included in Schedule 3.4(d), in accordance with the Accounting Principles and reviewed by Ernst & Young in compliance with applicable relevant Accounting Principles. As soon as reasonably practicable, and in any event by no later than five (5) Business Days after the Closing Balance Sheet has been made available to the Purchaser, the Purchaser shall deliver to the Sellers’ Representative a copy of the Closing Balance Sheet and a statement (the "Purchaser’s Statement"), signed by an authorized representative of the Purchaser, setting forth in reasonable detail a computation as of 30 September 2020 of the following amounts (the “Adjustment Amounts”) (i) the Indebtedness in the Closing Balance Sheet, (ii) the Cash in the Closing Balance Sheet, (iii) the Actual Closing Net Debt, (iv) the Actual Closing Working Capital, and (v) the Post-Closing Adjustment. As from the date of the delivery of the Purchaser’s Statement, the Purchaser shall, subject to reasonable notice, make available to the Sellers’ Representative the books, records and any other document and information relating to the Group Companies reasonably required by the Sellers’ Representative in connection with its review of the Closing Balance Sheet and the Purchaser’s Statement.”.

The other provisions of clause 3.4(d) of the Securities Purchase Agreement shall remain unchanged.

“5.1.       Date and Place of Closing

The Closing takes place electronically through the DocuSign platform on October 1^st, 2020 or at any other later date which is the last day of a month as notified by the Sellers’ Representative to the Purchaser with a 10-day prior notice at least but not later than the Long Stop Date (the "Closing Date").”.

“(iv) there has been no Leakage in the period from (and including) the Effective Date to (and including) 30 September 2020;”.

“If to the Purchaser, to Cryoport Netherlands B.V.:

On the Closing Date, the Purchaser shall (i) pay the Closing Purchase Price and (ii) repay the Existing Indebtedness as per the instructions of the Sellers’ Representative as set out in Appendix 2 of this Amendment Agreement. The Purchaser shall be fully discharged by any payment made at the Closing Date in accordance with, and subject to, this Appendix 2.

The Purchaser declares that the funds used to satisfy its payment obligations under the Securities Purchase Agreement do not come from illegal activities or from activities which contradict, or are likely to contradict, the provisions of any and all anti-corruption Laws or Laws against money laundering, financing of terrorism or tax evasion and fraud applicable to it.

The representations and warranties set forth in Article 8 of the Securities Purchase Agreement (Representations of the Sellers) and in Article 9 of the Securities Purchase Agreement (Representations and Warranties under the AL SPA) are repeated on the Closing Date.

According to Article 5.2(a)(i) of the Securities Purchase Agreement, the Sellers’ Representative shall deliver to the Purchaser the Accounts Closing Delivery on the Closing Date.

Prior to the date hereof, the Sellers’ Representative and the Purchaser have recognized and accepted that, given timing constraints, the Accounts Closing Delivery, the final version of which is being finalized pending review and comments from the Purchaser, will not be delivered on the Closing Date.

In order not the delay the completion of the Transaction on October 1, 2020, the Purchaser acknowledges and agrees to waive the condition set forth in Article 5.2(a)(i) provided that the Sellers’ Representative shall make its commercially reasonable efforts to assist, within the limit of its powers, the Purchaser in the finalization of such Accounts Closing Delivery no later than October 31, 2020 it being specified and agreed by the Parties that such reasonable assistance from the Sellers’ Representative shall not result in incurring the liability of the Sellers’ Representative, in any manner whatsoever.

For the sake of clarity, and notwithstanding the foregoing, the Parties hereby reiterate and agree that:

Each Party acknowledge and agree, by exception to the provisions of article 1161 of the French Code Civil, that a Party to this Amendment Agreement may represent, and act in the name and on behalf of, another Party and, as such, to irrevocably waive its rights to require the invalidity and nullity of the Amendment Agreement or any other agreement or document entered into in accordance with the terms and conditions of the Amendment Agreement on the basis of article 1161 of the French Code Civil.

The effective date of signature of this Amendment Agreement shall be the date of signature certified by the DocuSign platform.