AMENDMENT TO RIGHTS AGREEMENT
This Amendment No. 6 (this “Amendment”) dated the 11th day of December, 2023 to the Rights Agreement, dated March 11, 2018, as amended by Amendment No. 1 thereto, dated March 8, 2019, as further amended by Amendment No. 2 thereto, dated March 10, 2020, Amendment No. 3 thereto, dated March 8, 2021, Amendment No. 4 thereto, dated March 11, 2022, and Amendment No. 5 thereto, dated March 13, 2023 (the “Agreement”), by and between NightHawk Biosciences, Inc. (formerly known as Heat Biologics, Inc.) (the “Company”) and Continental Stock Transfer & Trust Company, as Rights Agent (the “Rights Agent”). Capitalized terms used herein without definition shall have the meanings assigned in the Agreement.
WHEREAS, the Company and the Rights Agent are parties to the Agreement;
WHEREAS, pursuant to Section 27 of the Agreement, the Company and the Rights Agent may, for so long as the Rights are redeemable, from time to time, change or supplement the provisions under the Agreement as the Company may deem necessary or desirable, without the approval of any holders of the Rights;
WHEREAS, as of the date hereof, a Flip-In Event has not occurred and, as such, the Rights are presently redeemable; and
WHEREAS, the Board of Directors of the Company has determined that it is desirable and in the best interest of the Company and its stockholders to amend the definition of “Acquiring Person” in Section 1(a) of the Agreement in accordance with Section 27 of the Agreement.
NOW THEREFORE, in consideration of the premises and the respective agreements set forth herein, the parties hereby agree as follows:
| 1. | Amendment to Section 1(a); Definition of “Acquiring Person.” The definition of “Acquiring Person” in Section 1(a) of the Agreement is amended by inserting the following at the end of such section: |
“Notwithstanding anything in this Section 1(a) or this Agreement to the contrary, none of Jeffrey Wolf or Elusys Holdings Inc. (“Elusys Holdings,” collectively with Mr. Wolf, the “Purchase Agreement Parties” and each an “Purchase Agreement Party”) nor any of their respective Affiliates or Associates, either individually or together, is, nor shall any of them, be deemed to be, an “Acquiring Person” solely by virtue of, or as a result of (i) the approval, execution, and delivery of the Asset and Equity Interests Purchase Agreement, to be dated on or about December 11, 2023, by and between the Company and Elusys Holdings (as it may be amended from time to time, the “Purchase Agreement”), (ii) the approval, execution, and delivery of the Convertible Promissory Note contemplated by the Purchase Agreement (the “Convertible Note”), (iii) the public announcement or public disclosure of the Purchase Agreement, the Convertible Note or any of transactions contemplated thereby, (iv) the issuance to the Purchase Agreement Parties of, or the right to be issued, shares of Common Stock pursuant to the Convertible Note, (v) the acquisition of, or the right to acquire, Beneficial Ownership by the Purchase Agreement Parties of any shares of Common Stock issued or issuable upon the conversion of the Convertible Note, or (vi) the
