Attached files
Exhibit
10.5
AMENDMENT NO. 1 TO
COMMON STOCK PURCHASE WARRANT
This Amendment No.
1 (the “Amendment”) to that
certain Common Stock Purchase Warrant (the “Warrant”) issued to the
undersigned (the “Registered Holder”)
pursuant to that certain Amended and Restated Securities Purchase
Agreement (as amended, the “Agreement’) first dated
as of March 10, 2016, by and among root9B Holdings, Inc. (formerly
known as root9B Technologies, Inc.), a Delaware corporation (the
“Company”) and the
Purchasers (as defined therein), is entered into effective as of
June 1, 2017 (the “Effective Date”).
Capitalized terms used in this Amendment that are not otherwise
defined herein shall have the respective meanings assigned to them
in the Warrant.
RECITALS
Whereas, the
Company has agreed to amend the Warrant in order to extend the
period in which the Warrant may be exercised by one
year;
Whereas,
pursuant to Section 15 of the Warrant, the Warrant may be amended
only with the written consent of the Company and the Registered
Holder; and
Whereas, the
Registered Holder and the Company desire to amend the Warrant as
set forth herein.
AGREEMENT
Now, Therefore, in consideration of the foregoing and of the
mutual promises and conditions hereinafter set forth, the parties
hereto agree as follows:
A.
Amendment of Expiration Date.
Section 5 of the Warrant is hereby amended, restated and replaced
in its entirety with the following
5.
Termination. This
Warrant (and the right to purchase securities upon exercise hereof)
shall terminate six (6) years from the date of issuance of this
Warrant (the “Expiration Date”).
B.
Representations of the Company.
The Company represents and warrants as follows:
a.
Organization. The Company is a
corporation duly organized and validly existing under the laws of
the jurisdiction of its incorporation and has all requisite
corporate power and legal authority to own and use its properties
and assets and carry on its business as now conducted and to own
its properties. The Company is not in violation of any of the
provisions of its Certificate of Incorporation or
Bylaws.
b.
Authorization; Enforcement. The
Company has all corporate right, power and authority to enter into
this Amendment and to consummate the transactions contemplated
hereby and thereby. All corporate action on the part of the
Company, its directors and stockholders necessary for the
authorization, execution, delivery and performance of this
Amendment by the Company, the authorization, sale, issuance and
delivery of the Securities contemplated herein and the performance
of the Company’s obligations hereunder and thereunder has
been taken, other than obtaining the requisite filings necessary to
authorize and effect the issuance of Warrant Shares upon exercise
of the Warrants. This Amendment has been duly executed and
delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except: (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
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C.
Representations of Registered
Holder. Registered Holder hereby represents and warrants as
follows:
a.
Organization; Authority.
Registered Holder is either an individual or an entity duly
incorporated or formed, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation with
full right, corporate, partnership, limited liability company or
similar power and authority to enter into and to consummate the
transactions contemplated by this Amendment and otherwise to carry
out its obligations hereunder. The execution and delivery of this
Amendment and performance by Registered Holder of the transactions
contemplated by this Amendment have been duly authorized by all
necessary corporate, partnership, limited liability company or
similar action, as applicable, on the part of Registered Holder.
This Amendment has been duly executed by Registered Holder, and
when delivered by Registered Holder in accordance with the terms
hereof, shall constitute the valid and legally binding obligation
of Registered Holder, enforceable against it in accordance with its
terms, except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
D.
Full Force and Effect. All of
the provisions of the Warrant are ratified and confirmed except as
modified by this Amendment.
E.
Counterpart. This Amendment may
be executed in counterparts, each of which shall be deemed an
original but all of which together shall be deemed one original.
PDF or facsimile copies of manually executed signature pages to
this Amendment are fully binding and enforceable without the need
for delivery of the original manually executed signature
page.
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F.
Governing Law. This Amendment
shall be governed by the laws of the state of Delaware, without
giving effect to conflict of law principles.
G.
Independent Counsel. The
Registered Holder represents that it has had the opportunity to
consult with its own counsel concerning entry into this Amendment,
including, but not limited to, any potential reporting requirements
and trading restrictions under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), arising
from or in connection with the transactions contemplated by this
Amendment and the Agreement (including Sections 10, 13 and 16 of
the Exchange Act).
H.
Cooperation. Each party hereto
agrees to execute and deliver such additional documents and
instruments and to perform such additional acts as any party may
reasonably request or as may be reasonably necessary or appropriate
to effectuate, consummate and perform any other terms, provisions,
or conditions of this Amendment.
[Remainder of page intentionally left blank. Signature page
follows.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized signatories as of
the Effective Date.
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ROOT9B HOLDINGS, INC. |
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By:
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Name:
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Title:
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGE FOR REGISTERED HOLDER FOLLOWS]
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Agreed
to and accepted:
REGISTERED
HOLDERS:
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[INVESTOR] |
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By:
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Name: |
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Its: |
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