EXHIBIT 4.10
AMENDMENT NO. 1
TO
SERIES D WARRANT
TO
PURCHASE COMMON STOCK
OF
RAPTOR NETWORKS TECHNOLOGY, INC.
THIS AMENDMENT NO. 1 TO SERIES D WARRANT TO PURCHASE COMMON STOCK (the
"AMENDMENT") is entered into effective as of December 12, 2005 (the "EFFECTIVE
DATE"), by and among RAPTOR NETWORKS TECHNOLOGY, INC., a Colorado corporation
(the "COMPANY"), and DMK Investments, LLC ("DMK"), Transglobal Investments, LLC
("Transglobal"), and Uptrend Investment, Inc. ("UPTREND") (DMK, Transglobal and
Uptrend each a "HOLDER," and collectively, the "HOLDERS"). The Company and the
Holders may collectively be referred to herein as the "Parties."
R E C I T A L S
A. The Company issued a Series D Warrant to Purchase Common Stock, dated on
or around June 1, 2004, with an exercise price of $3.50 per share of common
stock, to each of the Holders in the following amounts: DMK, for the purchase of
up to 138,889 shares of the Company's common stock; Transglobal, for the
purchase of up to 277,778 shares of the Company's common stock; and Uptrend, for
the purchase of up to 555,556 shares of the Company's common stock (each a
"WARRANT," and collectively the "WARRANTS").
B. The Parties entered into a letter agreement, dated August 8, 2005, and
accepted and agreed to by the Holders on September 20, 2005, whereby the Parties
agreed in principle to certain amendments to the Warrants, a copy of which
letter agreement is attached hereto as EXHIBIT A (the "LETTER AGREEMENT").
C. The Parties desire to formalize the amendments set forth in the Letter
Agreement and amend the Warrants in the manner specifically set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein shall
have the meanings for such terms that are set forth in the Warrants.
2. CERTAIN AMENDMENTS.
(a) AMENDMENT TO SECTION 1(a) - EXERCISE PRICE. The last sentence of
Section 1(a) of the Warrants shall hereby be amended and restated as follows:
"The "EXERCISE PRICE" for each Warrant Share purchased by the
Holder upon the exercise of this Warrant shall be equal to $0.50,
subject to adjustment for the events specified in Section 6 below)."
(b) AMENDMENT TO SECTION 6(c)(i)(A). The parenthetical clause at the
end of the first sentence of Section 6(c)(i)(A) of the Warrants shall be amended
and restated as follows:
"(which, in the case of a deemed issuance or sale, shall be
calculated in accordance with subparagraph (iii) below."
(c) AMENDMENT TO SECTION 6(c)(iv). Section 6(c)(iv) of the Warrants is
hereby amended and restated in its entirety to read as follows:
"(iv) EXCEPTIONS TO ADJUSTMENT OF EXERCISE PRICE. Notwithstanding
the foregoing, no adjustment to the Exercise Price shall be made
pursuant to this paragraph (c) upon the issuance of any Excluded
Securities. For purposes hereof, "EXCLUDED SECURITIES" means (I)
securities purchased under the Securities Purchase Agreement; (II)
securities issued upon exercise of the Warrants; (III) shares of
Common Stock issuable or issued to (x) employees or directors from
time to time upon the exercise of options, in such case granted or to
be granted in the discretion of the Board of Directors pursuant to one
or more stock option plans or restricted stock plans in effect as of
the Issue Date or adopted after the Issue Date by the independent
members of the Board of Directors with substantially the same terms as
such plans in effect as of the Issue Date, and (y) vendors pursuant to
warrants to purchase Common Stock that are outstanding on the date
hereof or issued hereafter, provided such issuances are approved by
the Board of Directors; (IV) shares of Common Stock issued in
connection with any stock split, stock dividend or recapitalization of
the Company; (V) shares of Common Stock issued in connection with the
acquisition by the Company of any corporation or other entity
occurring after the Effective Date and as long as a fairness opinion
with respect to such acquisition is rendered by an investment bank of
national recognition; (VI) shares of Common Stock issued in connection
with any Convertible Securities or Purchase Rights outstanding on the
date hereof; (VII) any Common Stock, warrants to purchase Common
Stock, options to purchase Common Stock, or any other securities that
the Company issued, or which the Company was obligated to issue, prior
to or on September 20, 2005; and (VIII) any issuance of Common Stock,
warrants to purchase Common Stock, options to purchase Common Stock,
or any other securities issued to investors, brokers, dealers or any
other persons or entities in conjunction with, and/or pursuant to the
terms of, the Company's Private Placement Memorandum dated March 15,
2005, as amended.
3. NO OTHER MODIFICATIONS INTENDED. Except as specifically set forth
herein, no other modification of the Warrants is intended or to be implied and
the terms of the Warrants, except as modified herein, shall remain in full force
and effect.
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to
Series D Warrant to Purchase Common Stock effective as of the Effective Date.
COMPANY: RAPTOR NETWORKS TECHNOLOGY, INC.,
a Colorado corporation
By: /s/ Xxx xxx Xxxxx
--------------------------------------
Xxx xxx Xxxxx, Chief Financial Officer
HOLDERS: DMK Investments, LLC
By: /s/ Xxxxxx Xxxx
--------------------------------------
Its: Manager
Transglobal Investments, LLC
By: /s/ Xxxxxx Xx
--------------------------------------
Its: Manager Member
Uptrend Investment, Inc.
By: /s/ Xxxxxxxxx Xxx Xxxx
--------------------------------------
Its: Xxxxxxxxx Xxx Chin (Pres.)
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