AMENDMENT AGREEMENT NO. 2
Exhibit 10.1
This Amendment Agreement No. 2 (the "Agreement") dated as of January 24, 2017, is by and between Great Basin Scientific, Inc., a Delaware corporation with offices located at 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 (the "Company"), and the Holder whose signature is set forth below (the "Holder"). All terms used and not defined herein are used as defined in the Securities Purchase Agreement and the Notes (each as defined below), as applicable.
WHEREAS:
A. The Company, the Holder and other Buyers executed and delivered a Securities Purchase Agreement (the "Securities Purchase Agreement") dated as of June 29, 2016 in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the 1933 Act, and Rule 506(b) of Regulation D as promulgated by the SEC under the 1933 Act.
B. The Company authorized the issuance of senior secured convertible notes of the Company (as amended prior to the date hereof, the "Notes"), in the aggregate original principal amount of $75,000,000 which Notes are convertible into shares of Common Stock, in accordance with the terms of the Notes.
C. The Company and the Holder entered into that certain Amendment Agreement dated January 23, 2017. In compliance with Section 19 of the Notes, the Company and the Holder, which alone represents the Required Holders (as defined in each of the Notes), desire to further amend each of the Notes as set forth herein, which amendments shall be binding on the holders of all Notes outstanding as of the execution and delivery of this Agreement by the Company and the Holder, (such time, the "Effective Time").
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. NO CHANGE TO TERMS EXCEPT AS SET FORTH. Except as explicitly set forth in this Agreement, all terms of the Securities Purchase Agreement, Notes, Warrants, the Security Documents and other Transaction Documents, as amended prior to the date hereof, are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects. Except as explicitly set forth herein, the Holder reserves all of its rights, remedies, powers, and privileges. All references herein and in the Securities Purchase Agreement, Notes, Warrants, the Security Documents and other Transaction Documents to the Notes shall mean on and after the Effective Time, respectively, the Securities Purchase Agreement, Notes, Warrants, the Security Documents and such other Transaction Documents, each as amended by this Agreement.
2. CHANGES TO THE NOTES.
a. Section 3(b)(ii) of the Notes is hereby amended by replacing it in its entirety with the following:
"(ii) "Conversion Price" means, as of any Conversion Date or other date of determination, the lowest of (x) $0.50 per share, subject to adjustment as provided herein, (y) 85% of the lower of (I) the lowest Weighted Average Price of the Common Stock and (II) the lowest Closing Bid Price of the Common Stock, in each case, during the five (5) consecutive Trading Day period ending on, and including, the Trading Day on which the Holder delivers a Conversion Notice to the Company (such trading prices to be appropriately adjusted for any share dividend, share split, share combination, reclassification or similar transaction during such five (5) consecutive Trading Day period), and (z) 85% of the Weighted Average Price of the Common Stock during the period beginning at 9:30:01 a.m., New York time (or such other time as the Principal Market publicly announces the official opening of trading), and ending at 1:00:00 p.m., New York time, on the delivery date of the applicable Conversion Notice; provided however, during the period through and including January 24, 2017 to February 15, 2017, the Conversion Price shall not be lowered to an amount lower than 90% of the Weighted Average Price of the Common Stock on the delivery date of the applicable Conversion Notice.
b. Section 3(c)(iv) of the Notes is hereby amended by replacing it in its entirety with the following:
"Reserve Allocation; Disputes. The Company has currently reserved the number of shares of Common Stock set forth on Schedule A for each Holder set forth therein to be issued to each Holder upon such Holder's conversion of its Notes and shall keep such shares reserved for each such Holder's conversion of its Notes as required herein. In the event that the Company increases the number of authorized shares of Common Stock after the date hereof, it shall reserve any additional shares of Common Stock required to be reserved hereunder for each Holder pro rata based on the principal amount of Notes issued to each Holder on the Closing Date. In the event of a dispute as to the number of shares of Common Stock issuable to the Holder in connection with a conversion of this Note, the Company shall issue to the Holder the number of shares of Common Stock not in dispute and resolve such dispute in accordance with Section 26."
c. Section 18(c)(i) of the 2016 Notes is hereby amended by replacing the reference of “55%” with “45%”. For the avoidance of doubt, after giving effect to the foregoing amendment, the Holder’s Pro Rata Share for the Holder as of the date hereof shall be [ ]%.
3. ACKNOWLEDGEMENT. The Company hereby acknowledges and agrees that as of the date hereof a Control Account Holder Release Event has occurred and is continuing.
4. RULE 144. For purposes of Rule 144 of the 1933 Act, the Company acknowledges and agrees that the holding period of the Notes, as amended by this Agreement, commenced on July 1, 2016 and the Company agrees not to take a position contrary thereto or inconsistent therewith.
5. DISCLOSURE OF
TRANSACTIONS AND OTHER MATERIAL INFORMATION. The Company shall, on or before 8:30 a.m., New York City Time, January 24,
2017, file a Current Report on Form 8-K disclosing all material terms of the transactions contemplated hereby attaching the form
of this Agreement as exhibit to such filing (including all attachments), the "8-K Filing"). From
and after the filing of the 8-K Filing, the Holder shall not be in possession of any material, nonpublic information received
from the Company, any of its Subsidiaries or any of its respective officers, directors, employees, agents or affiliates, that
is not disclosed in the 8-K Filing. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees
that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any
of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the
Holder or any of its affiliates, on the other hand, shall terminate and be of no further force or effect. The Company shall not,
and shall cause each of its Subsidiaries and each of their respective officers, directors, employees, agents and affiliates, not
to, provide the Holder with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after
the date hereof without the express prior written consent of the Holder. To the extent that the Company delivers any material,
non-public information to the Holder without such Holder's express prior written consent, the Company hereby covenants and agrees
that the Holder shall not have any duty of confidentiality to the Company, any of its Subsidiaries or any of their respective
officers, directors, employees, affiliates or agents with respect to, or a duty to the Company, any of its Subsidiaries or any
of their respective officers, directors, employees, affiliates or agents not to trade on the basis of, such material, non-public
information. The Company understands and confirms that the undersigned and its affiliates will rely on the foregoing representations
in effecting transactions in securities of the Company. The Company shall not disclose the name of the Holder in any filing, announcement,
release or otherwise, unless such disclosure is required by law or regulation.
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6. The Company shall reimburse the Holder for its legal fees and expenses in connection with the preparation and negotiation of this Agreement and transactions contemplated thereby, by paying on or prior to the fifth (5th) Business Day immediately following the date hereof any such amount to Xxxxxxx Xxxx & Xxxxx LLP (the "Counsel Expense") by wire transfer of immediately available funds in accordance with the written instructions of Xxxxxxx Xxxx & Xxxxx LLP delivered to the Company. The Counsel Expense shall be paid by the Company whether or not the transactions contemplated by this Agreement are consummated. Except as otherwise set forth above, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all stamp and other taxes and duties levied in connection with the transactions contemplated hereby, if any.
7. MISCELLANEOUS. All provisions of Article 9 of the Securities Purchase Agreement are incorporated herein by reference mutatis mutandis; provided, however, that any amendment of this Agreement shall require the consent of the undersigned.
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IN WITNESS WHEREOF, the Holder and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.
| COMPANY: | ||
| Great Basin Scientific, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
IN WITNESS WHEREOF, each Holder and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.
| HOLDER: | ||
| By: | ||
| By: | ||
| Name: | ||
| Title: | ||
