AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT DATED NOVEMBER 6, 2023 and THE CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS of THE SERIES C CONVERTIBLE PREFERRED STOCK
Exhibit 10.3
AMENDMENT TO
THE SECURITIES PURCHASE AGREEMENT
DATED NOVEMBER 6, 2023
and
THE CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS
of
THE SERIES C CONVERTIBLE PREFERRED STOCK
This amendment (the “Amendment”) to (i) the Securities Purchase Agreement dated November 6, 2023 (the “Agreement”), entered into by and between Xxxx Alliance, Inc., a Delaware corporation (the “Company”), and Xxxx & Company, Inc., a Delaware corporation (the “Purchaser”), (ii) the Certificate of Designation of Preferences, Rights and Limitations of the Series C Convertible Preferred Stock filed with the Secretary of State of Delaware on November 15, 2023 (the “COD”) and (iii) the number of warrants (the “Series C Warrants”), is dated March 25, 2024. All capitalized terms in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Agreement, the COD and/or the Series C Warrants, as applicable.
WHEREAS, the Company and the Purchaser desire to amend the Agreement, the COD and the Series C Warrants.
NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound hereby, the parties hereto agree as follows:
| 1. | The definition of “Subscription Amount” in the SPA is hereby deleted and replaced in its entirety by the following: |
“Subscription Amount” means up to $75,000,000 some of which may consist of the surrender for cancellation of the Note.
| 2. | Section 2.1 of the SPA is hereby deleted and replaced in its entirety by the following: |
“2.1 Closing. On each Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, the Securities for the Subscription Amount (such purchase and sale being a “Closing”). Contemporaneously with or promptly following a Closing, the Purchaser shall deliver to the Company the Purchaser’s Subscription Amount as set forth on the signature page hereto executed by the Purchaser by a wire transfer of immediately available funds and the Company shall, on the Closing Date, deliver to the Purchaser a certificate representing the number of Preferred Shares and the Warrant purchased by the Purchaser at the particular Closing as determined pursuant to Section 2.2(a). The Company and the Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the particular Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3 and receipt of the Subscription Amount by the Company, the Closing shall occur at the principal offices of the Company or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, each Closing Date shall occur on or before June 30, 2024, provided, however, that the Purchaser may extend such the Closing Date for an additional ninety (90) days, by notice to the Company (such outside date, the “Termination Date”).”
| 3. | Section 2 of the COD is hereby deleted and replaced in its entirety by the following: |
Designation, Amount and Par Value. The series of preferred stock shall be designated as “Series C Convertible Preferred Stock” (the “Series C Preferred Stock”) and the number of shares of such series shall be 75,000 (which shall not be subject to increase without the written consent of the holder (each, a “Holder” and collectively, the “Holders”) of a majority of the then outstanding shares of the Series C Preferred Stock). Each share of Series C Preferred Stock shall have a par value of $0.001 per share and a stated value equal to $1,000.00 (the “Stated Value”).
| 4 | The terms of the Series C Warrants are hereby modified in their entirety to reflect the increase in the Subscription Amount. |
| 5. | This Amendment shall be binding on the Company and the Purchaser and all of their respective successors, heirs, personal representatives and assigns and permitted transferees. |
| 6. | Except as amended hereby, the Agreement shall remain unmodified and is hereby ratified in all respects. |
| 7. | This Amendment may be executed and delivered (including by electronic or facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. |
Agreed this 25th day of March, 2024.
| XXXX ALLIANCE, INC. | XXXX & COMPANY, INC. | ||
| By: | /s/ Xxxxx Xxxxxx | By: | Xxxxxx X. Xxxx, III |
| Xxxxx Xxxxxx | Xxxxxx X. Xxxx, III | ||
| President | Chief Executive Officer | ||
