Exhibit 10.5


 


NEITHER
THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO THE COMPANY, THAT THIS WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED,
OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE
STATE SECURITIES LAWS.


 


TESORO
ENTERPRISES, INC.


 


WARRANT
TO PURCHASE SHARES OF COMMON STOCK


 


1.
Issuance. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Tesoro
Enterprises, Inc., a Delaware corporation, its successors and assigns (“Company”), Kevin Levine, his successors
and/or registered assigns (“Investor”), is hereby granted the right to purchase at any time on or after the Issue
Date (as defined below) until December 23, 2022 (the “Expiration Date”), 450,000 fully paid and non-assessable shares
(the “Warrant Shares”) of Company’s common stock, par value $0.00001 per share (the “Common Stock”),
as such number may be adjusted from time to time pursuant to the terms and conditions of this Warrant to Purchase Shares of Common Stock
(this “Warrant”).


 


This
Warrant is being issued pursuant to the terms of that certain Securities Purchase Agreement dated December 23, 2020, to which Company
and Investor are parties (as the same may be amended from time to time, the “Purchase Agreement”). Certain capitalized
terms used herein are defined in Attachment 1 attached hereto and incorporated herein by this reference. This Warrant was issued
to Investor on December 23, 2020 (the “Issue Date”).


 


2.
Exercise of Warrant.


 


2.1.
General.


 


(a)
This Warrant is exercisable in whole or in part at any time and from time to time commencing on the Issue Date and ending on the Expiration
Date. Such exercise shall be effectuated by submitting to Company (either by delivery to Company or by email or facsimile transmission)
a completed and signed Notice of Exercise substantially in the form attached to this Warrant as Exhibit A (the “Notice
of Exercise”). The date a Notice of Exercise is delivered to Company shall be the “Exercise Date,” provided
that, if such exercise represents the full exercise of the outstanding balance of this Warrant, Investor shall tender this Warrant to
Company within five (5) Trading Days thereafter, but only if the Warrant Shares to be delivered pursuant to the Notice of Exercise have
been delivered to Investor as of such date. The Notice of Exercise shall be executed by Investor and shall indicate the number of Warrant
Shares to be issued pursuant to such exercise


 




    	 



    	 



    




 


(b)
The Exercise Price per share of Common Stock for the Warrant Shares shall be payable, at the election of Investor, in cash or by certified
or official bank check or by wire transfer in accordance with instructions provided by Company at the request of Investor.


 


(c)
Upon the appropriate payment to Company of the Exercise Price for the Warrant Shares, Company shall promptly, but in no case later than
the date that is ten (10) Trading Days following the date the Exercise Price is paid to Company (the “Delivery Date”),
deliver or cause Company’s Transfer Agent to deliver the applicable Warrant Shares electronically via the DWAC system to the account
designated by Investor on the Notice of Exercise. If for any reason Company is not able to so deliver the Warrant Shares via the DWAC
system, Company shall instead, on or before the applicable date set forth above in this subsection, issue and deliver to Investor or
its broker (as designated in the Notice of Exercise), via reputable overnight courier, a certificate, registered in the name of Investor
or its designee, representing the applicable number of Warrant Shares.


 


(d)
In no event may this Warrant be net cash settled.


 


2.2.
Ownership Limitation. Notwithstanding anything to the contrary contained in this Warrant, if at any time Lender shall or would
be issued shares of Common Stock under this Warrant, but such issuance would cause Lender (together with its affiliates) to beneficially
own a number of shares exceeding 4.99% of the number of shares of Common Stock outstanding on such date (including for such purpose the
shares of Common Stock issuable upon such issuance) (the “Maximum Percentage”), then Borrower shall not issue to Lender
shares of Common Stock which would exceed the Maximum Percentage. The ownership limitation is enforceable, unconditional and non-waivable
and shall apply to all affiliates and assigns of Lender.


 


3.
Mutilation or Loss of Warrant. Upon receipt by Company of evidence satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant, and (in the case of loss, theft or destruction) receipt of reasonably satisfactory indemnification, and (in the case
of mutilation) upon surrender and cancellation of this Warrant, Company will execute and deliver to Investor a new Warrant of like tenor
and date and any such lost, stolen, destroyed or mutilated Warrant shall thereupon become void.


 


4.
Rights of Investor. Investor shall not, by virtue of this Warrant alone, be entitled to any rights of a stockholder in Company,
either at law or in equity, and the rights of Investor with respect to or arising under this Warrant are limited to those expressed in
this Warrant and are not enforceable against Company except to the extent set forth herein


 


5.
Adjustments. If Company shall issue any shares of Common Stock as a stock dividend or subdivide the number of outstanding shares
of Common Stock into a greater number of shares, then, in either such case, the Exercise Price in effect before such dividend or subdivision
shall be proportionately reduced and the number of Warrant Shares at that time issuable pursuant to the exercise of this Warrant shall
be proportionately increased; and, conversely, if Company shall contract the number of outstanding shares of Common Stock by combining
such shares into a smaller number of shares, then the Exercise Price in effect before such combination shall be proportionately increased
and the number of Warrant Shares at that time issuable pursuant to the exercise or conversion of this Warrant shall be proportionately
decreased. Each adjustment in the number of shares of Warrant Stock issuable shall be to the nearest whole share.


 


6.
Certificate as to Adjustments. In the case of any adjustment in the Exercise Price or Warrant Shares, Company will promptly give
written notice to Investor in the form of a certificate, certified and confirmed by an officer of the Company, setting forth the adjustment
in reasonable detail.


 




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7.
Transfer to Comply with the Securities Act. This Warrant and the Warrant Shares have not been registered under the Securities
Act of 1933, as amended (the “1933 Act”). Neither this Warrant nor the Warrant Shares may be sold, transferred, pledged
or hypothecated without (a) an effective registration statement under the 1933 Act relating to such security or (b) an opinion of counsel
reasonably satisfactory to Company that registration is not required under the 1933 Act. Until such time as registration has occurred
under the 1933 Act, each certificate for this Warrant and any Warrant Shares shall contain a legend, in form and substance satisfactory
to counsel for Company, setting forth the restrictions on transfer contained in this Section 7.


 


8.
Notices. Any notice required or permitted hereunder shall be given in the manner provided in the subsection titled “Notices”
in the Purchase Agreement, the terms of which are incorporated herein by reference.


 


9.
Supplements and Amendments; Whole Agreement. This Warrant may be amended or supplemented only by an instrument in writing signed
by the parties hereto. This Warrant, together with the Purchase Agreement, contains the full understanding of the parties hereto with
respect to the subject matter hereof and thereof and there are no representations, warranties, agreements or understandings with respect
to the subject matter hereof and thereof other than as expressly contained herein and therein.


 


10.
Governing Law; Venue. This Warrant shall be construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other
than the State of Delaware. Any action brought by either party against the other concerning the transactions contemplated by this Agreement
shall be brought only in the state and federal courts in San Diego County, California. The parties to this Agreement hereby irrevocably
waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction
or venue or based upon forum non conveniens. The prevailing party in any dispute arising under this Agreement shall be entitled to recover
from the other party its reasonable attorney’s fees and costs.


 


11.
Waiver of Jury Trial. EACH OF COMPANY AND INVESTOR IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS WARRANT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY
JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE
OR REGULATION. FURTHER, COMPANY ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS RIGHT TO DEMAND TRIAL BY JURY.


 


12.
Counterparts. This Warrant may be executed in any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Electronic signatures
shall be considered original signatures for all purposes hereof.


 


13.
Attorneys’ Fees. In the event of any litigation or dispute arising from this Warrant, the parties agree that the prevailing
party shall be entitled to an additional award of the full amount of the reasonable attorneys’ fees and expenses paid by said prevailing
party in connection with litigation or dispute.


 


14.
Severability. Whenever possible, each provision of this Warrant shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be invalid or unenforceable in any jurisdiction, such provision shall
be modified to achieve the objective of the parties to the fullest extent permitted and such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Warrant or the validity or enforceability of this Warrant in any other
jurisdiction.


 


[Remainder
of page intentionally left blank; signature page follows]


 






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IN
WITNESS WHEREOF, Company has caused this Warrant to be duly executed as of the Issue Date.


 


	 	COMPANY:
	 	 	 
	 	Tesoro
    Enterprises, Inc.
	 	 	 
	 	 	 
	 	By:	 
	 	 	Brian
    Foote, President and CEO


 


[Signature
page to Warrant]


 




    	 



    	 



    

 





ATTACHMENT
1


DEFINITIONS


 


For
purposes of this Warrant, the following terms shall have the following meanings:


 


A1.
“DTC” means the Depository Trust Company or any successor thereto.


A2.
“DTC Eligible” means, with respect to the Common Stock, that such Common Stock is eligible to be deposited in certificate
form at the DTC, cleared and converted into electronic shares by the DTC and held in the name of the clearing firm servicing Investor’s
brokerage firm for the benefit of Investor.


 


A3.
“DTC/FAST Program” means the DTC’s Fast Automated Securities Transfer program.


 


A4.
“DWAC” means the DTC’s Deposit/Withdrawal at Custodian system.


 


A5.
“Exercise Price” means $0.25 per share of Common Stock, as the same may be adjusted from time to time pursuant to
the terms and conditions of this Warrant.


 


A6.
“Trading Day” means any day the New York Stock Exchange is open for trading.


 




    	 



    	 



    

 





EXHIBIT
A


 


NOTICE
OF EXERCISE OF WARRANT


 


TO:
TESORO ENTERPRISES, INC.


ATTN:
_______________


VIA
FAX TO: ( )______________ EMAIL: ______________


 


The
undersigned hereby irrevocably elects to exercise the right, represented by the Warrant to Purchase Shares of Common Stock dated as of
[_______] (the “Warrant”), to purchase shares of the common stock, $0.00001 par value (“Common Stock”),
of Tesoro Enterprises, Inc., and tenders herewith payment in accordance with Section 2 of the Warrant, as follows:


 





	 	Warrant
    Shares: _______________________
	 	 
	 	 Exercise
    Price: $_______________________ 
	 	 
	 	 Purchase
    Price: $___________________ = (Exercise Price x Warrant Shares)


 




		Payment
    is being made by:
		_______	enclosed
    check 
		_______	wire
    transfer
		_______	other














 





Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to them in the Warrant.


 


It
is the intention of Investor to comply with the provisions of Section 2.2 of the Warrant regarding certain limits on Investor’s
right to receive shares thereunder. Investor believes this exercise complies with the provisions of such Section 2.2. Nonetheless, to
the extent that, pursuant to the exercise effected hereby, Investor would receive more shares of Common Stock than permitted under Section
2.2, Company shall not be obligated and shall not issue to Investor such excess shares until such time, if ever, that Investor could
receive such excess shares without violating, and in full compliance with, Section 2.2 of the Warrant.


 


As
contemplated by the Warrant, this Notice of Exercise is being sent by email to the officer indicated above.


 


If
this Notice of Exercise represents the full exercise of the entire Warrant, Investor will surrender (or cause to be surrendered) the
Warrant to Company at the address indicated above by express courier within five (5) Trading Days after the Warrant Shares to be delivered
pursuant to this Notice of Exercise have been delivered to Investor.


 


To
the extent the Warrant Shares are not able to be delivered to Investor via the DWAC system, please deliver certificates representing
the Warrant Shares to Investor via reputable overnight courier after receipt of this Notice of Exercise (by facsimile transmission or
otherwise) to:


 


_____________________________________


____________________________________


___________________________________


 


Exhibit
A to Warrant, Page 1


 




    	 



    	 



    







 


Dated:
_____________________


 


___________________________


[Name
of Investor]


 


By:________________________


 


Exhibit
A to Warrant, Page 2


 









    	 



    	 



    

 





EXHIBIT
C


 


WIRING
INSTRUCTIONS


 


Bank:
JPMorgan Chase Bank, N.A.


Name
on Account: Culhane, Meadows, Haughian & Walsh, PLLC


Routing
No.: 111000614


Trust
IOLTA Account No.: 216838617


Reference:
Tesoro Enterprises Note and Warrant