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United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 30, 2024
SOLIDION TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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001-41323 |
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87-1993879 |
(State or other jurisdiction
of incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
13355 Noel Road, Suite 1100
Dallas, TX 75240
(Address of principal executive offices, including
zip code)
(972) 918-5120
Registrant’s telephone number, including
area code:
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which
registered |
Common Stock, par value $0.0001 per share |
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STI |
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The Nasdaq Stock Market, LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive
Agreement
Subscription Agreement
On August 30, 2024, Solidion
Technology, Inc. (the “Company”) entered into a private placement transaction (the “Private Placement”),
pursuant to a Securities Purchase Agreement (the “Subscription Agreement”) with certain institutional investors (the
“Purchasers”) for aggregate gross proceeds of approximately $4 million, before deducting fees to the placement agent
and other expenses payable by the Company in connection with the Private Placement. The Company intends to use the net proceeds from the
Private Placement for working capital and general corporate purposes. EF Hutton, LLC, acted as the exclusive placement agent for the Private
Placement. The Private Placement is expected to close on or about September 3, 2024.
As part of the Private Placement,
the Company issued an aggregate of 12,217,470 units and pre-funded units (collectively, the “Units”) at a purchase
price of $0.3274 per unit. Each Unit consists of (i) one share of common stock, par value $0.0001 per share of the Company (the “Common
Stock”) (or one pre-funded warrant to purchase one share of Common Stock (the “Pre-Funded Warrant”)), (ii)
two Series C warrants each to purchase one share of Common Stock (the “Series C Warrant”) and (iii) one Series D warrant
to purchase such number of shares of Common Stock as determined on the Reset Date (as defined below), and in accordance with the terms
therein (the “Series D Warrant” and together with the Pre-Funded Warrant and the Series C Warrant, the “Warrants”).
The Pre-Funded Warrants are
exercisable on issuance at an exercise price of $0.0001 per share of Common Stock and will not expire until exercised in full. The Series
C Warrants are exercisable upon issuance and have an exercise price of $0.3274 per share of Common Stock (subject to certain anti-dilution
and share combination event protections) and have a term of 5.5 years from the date of Stockholder Approval (as defined in the Subscription
Agreement). The Series D Warrants will be exercisable following the Reset Date (as defined in the Series D Warrant), will have an exercise
price of $0.0001 per share of Common Stock and will have a term of 5.5 years from the date of Stockholder Approval (as defined in the
Subscription Agreement). The exercise price and number of shares of Common Stock issuable under the Series C Warrants are subject to
adjustment and the number of shares of Common Stock issuable under the Series D Warrant will be determined following the later to occur
of: (i) the earlier of (A) the first trading day after the date on which a resale registration statement covering the resale of all Registrable
Securities (as defined in the Series D Warrant) has been declared effective for 10 consecutive trading days or (B) the first trading
day after the date on which the Purchasers may sell the Registrable Securities pursuant to Rule 144 under the Securities Act of 1933,
as amended (the “Securities Act”) for a period of 10 consecutive trading days, or (ii) the 11th trading day after Stockholder
Approval (as defined in the Subscription Agreement) is obtained (the “Reset Date”), and to be determined pursuant to the
lowest daily average trading price of the Common Stock during the Reset Period (as defined in the Series D Warrant), subject to a pricing
floor of $0.065 per share of Common Stock, such that the maximum number of shares of Common Stock underlying the Series C Warrants and
Series D Warrants would be an aggregate of approximately 123,076,923 shares and 49,320,990 shares, respectively. In the event either
of clauses (i) or (ii) in the immediately preceding sentence has not occurred, “Reset Date” means the 11th trading
day after twelve months and 30 trading days following the issuance date of the Series D Warrants. The Company has undertaken to file
a resale registration statement covering all of the Registrable Securities on behalf the Purchasers pursuant to a Registration Rights
Agreement (the “Registration Rights Agreement”) also entered into with the Purchasers in connection with the Private
Placement.
The foregoing description
of the Pre-Funded Warrant, Series C Warrant, Series D Warrant, Subscription Agreement and Form of Registration Rights Agreement is qualified
in its entirety by reference to the full text of the Form of Pre-Funded Warrant, Form of Series C Warrant, Form of Series D Warrant, Subscription
Agreement, and Form of Registration Rights Agreement, a copy of each of which is filed as Exhibits 4.1, 4.2, 4.3, 10.1 and 10.2, respectively,
to this Current Report on Form 8-K, and incorporated herein by reference.
Lock-Up Agreement
In connection with the execution
of the Subscription Agreement, certain holders of Common Stock have entered into contemporaneously with the signing of the Subscription
Agreement, a lock-up agreement (the “Lock-Up Agreement”), pursuant to which each such holder of Common Stock will agree,
subject to certain customary exceptions, not to (i) sell, offer to sell, agree to offer or sell, solicit offers to purchase, convert,
contract or agree to sell, pledge, encumber, assign, borrow, or otherwise dispose of, directly or indirectly, any shares of Common Stock
held by them (such shares, together with any securities convertible into or exchangeable for or representing the rights to receive shares
of Common Stock if any, acquired during the Lock-Up Period (as defined below), the “Lock-Up Shares”), (ii) enter into
a transaction that would have the same effect, (iii) enter into any swap, hedge or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Lock-Up Shares or otherwise, or engage in any short sales or other arrangement
with respect to the Lock-Up Shares or (iv) publicly announce any intention to effect any transaction specified in clause (i) or (ii) until
the date that is 6 months after the Closing Date (the period from the date of the Lock-Up Agreement until such date, the “Lock-Up
Period”).
The foregoing description
of the Lock-Up Agreement is qualified in its entirety by reference to the full text of the form of Lock-Up Agreement, a copy of which
is filed as Exhibit 10.3 to this Current Report on Form 8-K, and incorporated herein by reference.
Voting Agreement
In connection with the execution
of the Subscription Agreement, certain holders of Common Stock (as identified in the Voting Agreement) have entered into, contemporaneously
with the signing of the Subscription Agreement, a voting agreement (the “Voting Agreement”), pursuant to which such
holders of Common Stock agree to vote in favor of certain matters relating to the issuance of the Units pursuant to the Subscription Agreement
(as described in the Voting Agreement).
The foregoing description
of the Voting Agreement is qualified in its entirety by reference to the full text of the form of Voting Agreement, a copy of which is
included as Exhibit 10.4 to this Current Report on Form 8-K, and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth
above in Item 1.01 of this Report under the heading “Subscription Agreement” is incorporated by reference herein. The
shares of Common Stock and Warrants to be issued in connection with the Subscription Agreement and the transactions contemplated thereby
will not be registered under the Securities Act, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities
Act and/or Regulation D promulgated thereunder.
Item 7.01 Regulation FD Disclosure.
On August 30, 2024, the Company
issued a press release announcing the execution of the Subscription Agreement. A copy of the press release is furnished as Exhibit 99.1
to this Current Report on Form 8-K, and is incorporated herein by reference.
The information in this Item
7.01, including Exhibit 99.1, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or otherwise subject to liabilities under that section, nor shall it
be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific
reference in such filing.
Forward-Looking Statements
This Current Report on Form
8-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, or the Securities Act,
and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act. The statements contained in this report that are
not purely historical are forward-looking statements. Our forward-looking statements include, but are not limited to, statements regarding
our or our management’s expectations, hopes, beliefs, intentions or strategies regarding the future. In addition, any statements
that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions,
are forward-looking statements. The words “anticipates,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,”
“potential,” “predict,” “project,” “should,” “would” and similar expressions
may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking.
The forward-looking statements
contained in this report are based on our current expectations and beliefs concerning future developments and their potential effects
on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements
involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may cause actual results or
performance to be materially different from those expressed or implied by these forward-looking statements. Should one or more of these
risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from
those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether
as a result of new information, future events or otherwise, except as may be required under applicable laws.
As a result of a number of
known and unknown risks and uncertainties, our actual results or performance may be materially different from those expressed or implied
by these forward-looking statements. Some factors that could cause actual results to differ include: our ability to execute our business
model, including scaling production and increasing the addressable market for our products and services; our ability to raise capital;
the outcome of any legal proceedings that may be instituted against us; the ability to maintain the listing of our securities on the Nasdaq;
the possibility that we may be adversely affected by other economic, business or competitive factors, including supply chain interruptions,
and may not be able to manage other risks and uncertainties; changes in applicable laws or regulations; the possibility that we may be
adversely affected by other economic, business, and/or competitive factors; and other risks and uncertainties described in our Annual
Report on Form 10-K filed with the Securities and Exchange Commission on April 12, 2024.
No Offer or Solicitation
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation
of any vote or approval, nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the securities laws of such other jurisdiction. No offering of
securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an exemption
therefrom.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: August 30, 2024
SOLIDION TECHNOLOGY, INC. |
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By: |
/s/ Jaymes Winters |
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Name: |
Jaymes Winters |
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Title: |
Chief Executive Officer |
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5
Exhibit 4.1
[FORM OF SERIES C WARRANT]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B)
AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II)
UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
SOLIDION TECHNOLOGY, INC.
Series
C Warrant To Purchase Common Shares
Warrant No.: _________
Number of Common Shares: _____________
Date of Issuance: [●], 2024 (“Issuance Date”)
Solidion Technology, Inc., a
Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, [HOLDER],
the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below,
to purchase from the Company, at the Exercise Price (as defined below) then in effect, at any time or times on or after the date hereof,
but not after 11:59 p.m., New York time, on the Expiration Date, (as defined below), ______________ (_____________) fully paid nonassessable
Common Shares, subject to adjustment as provided herein (the “Warrant Shares”). Except as otherwise defined herein,
capitalized terms in this Warrant to Purchase Common Shares (including any Warrants to Purchase Common Shares issued in exchange, transfer
or replacement hereof, this “Warrant”), shall have the meanings set forth in Section 17. This Warrant is one of the
Series C Warrants to purchase Common Shares (the “SPA Warrants”) issued pursuant to Section 1 of that certain Securities
Purchase Agreement, dated as of [●], 2024 (the “Subscription Date”), by and among the Company and the investors
(the “Buyers”) referred to therein (the “Securities Purchase Agreement”). Capitalized terms used
herein and not otherwise defined shall have the definitions ascribed to such terms in the Securities Purchase Agreement.
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise.
Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)), this Warrant may
be exercised by the Holder at any time or times on or after the Issuance Date, in whole or in part, by (i) delivery of a written notice,
in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise
this Warrant and (ii) (A) payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash by wire transfer of immediately
available funds or (B) if the provisions of Section 1(d) are applicable, by notifying the Company that this Warrant is being exercised
pursuant to a Cashless Exercise (as defined in Section 1(d)). The Holder shall not be required to deliver the original Warrant in order
to effect an exercise hereunder. Execution and delivery of the Exercise Notice with respect to less than all of the Warrant Shares shall
have the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining
number of Warrant Shares. On or before the first (1st) Trading Day following the date
on which the Company has received the Exercise Notice, the Company shall transmit by electronic mail an acknowledgment of confirmation
of receipt of the Exercise Notice to the Holder and the Company’s transfer agent (the “Transfer Agent”). On or
before the earlier of (i) the second (2nd) Trading Day and (ii) the number of Trading
Days comprising the Standard Settlement Period, in each case, following the date on which the Holder delivers the Exercise Notice to the
Company, so long as the Holder delivers the Aggregate Exercise Price (or notice of a Cashless Exercise) on or prior to the Trading Day
following the date on which the Company has received the Exercise Notice (the “Share Delivery Date”) (provided that
if the Aggregate Exercise Price has not been delivered by such date, the Share Delivery Date shall be one (1) Trading Day after the Aggregate
Exercise Price (or notice of a Cashless Exercise) is delivered), the Company shall (X) provided that the Transfer Agent is participating
in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program and (A) the Warrant Shares are subject
to an effective resale registration statement in favor of the Holder or (B) if exercised via Cashless Exercise, at a time when Rule 144
would be available for resale of the Warrant Shares by the Holder, credit such aggregate number of Warrant Shares to which the Holder
is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit / Withdrawal
At Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or (A) the
Warrant Shares are not subject to an effective resale registration statement in favor of the Holder and (B) if exercised via Cashless
Exercise, at a time when Rule 144 would not be available for resale of the Warrant Shares by the Holder, deliver to the Holder, book entry
statements evidencing the Warrant Shares, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise.
The Company shall be responsible for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the issuance
of Warrant Shares via DTC, if any. Upon delivery of the Exercise Notice, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such
Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the book entry statements evidencing such Warrant
Shares, as the case may be. If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number
of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon
an exercise, then the Company shall as soon as practicable and in no event later than three (3) Trading Days after any exercise and at
its own expense, issue a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of Warrant Shares
issuable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is
exercised. No fractional Warrant Shares are to be issued upon the exercise of this Warrant, but rather the number of Warrant Shares to
be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes which may be payable with respect to
the issuance and delivery of Warrant Shares upon exercise of this Warrant. The Company’s obligations to issue and deliver Warrant
Shares in accordance with the terms and subject to the conditions hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against
any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination.
(b) Exercise Price.
For purposes of this Warrant, “Exercise Price” means $0.75 per share, subject to adjustment as provided herein.
(c) Company’s Failure
to Timely Deliver Securities. If the Company shall fail to cause the Transfer Agent to transmit to the Holder on or prior to the Share
Delivery Date, Warrant Shares pursuant to an exercise notice delivered by the Holder and if after such date the Holder is required by
its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common Shares
to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request (a) pay in cash to
the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the
Common Shares so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required
to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase
obligation was executed, and (b) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant
Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of Common Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For
example, if the Holder purchases Common Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted
exercise of Common Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (a) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit the Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver Common Shares upon the exercise of
this Warrant as required pursuant to the terms hereof.
(d) Cashless Exercise.
Notwithstanding anything contained herein to the contrary, if the Registration Statement covering the resale of the Warrant Shares is
not available for the resale of such Warrant Shares, the Holder may, in its sole discretion, exercise this Warrant in whole or in part
and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate
Exercise Price, elect instead to receive upon such exercise the “Net Number” of Common Shares determined according to the
following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A x C)
B
For purposes of the foregoing formula:
A= |
the total number of shares with respect to which this Warrant is then being exercised. |
B= |
as applicable: (i) the Weighted Average Price of the Common Shares on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the Weighted Average Price on the Trading Day immediately preceding the date of the applicable Exercise Notice or (z) the bid price of the Common Shares on the principal Trading Market as reported by Bloomberg as of the time of the Holder’s execution of the applicable Exercise Notice, if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 1(a) hereof or (iii) the Weighted Average Price of the Common Shares on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day; |
C= |
the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise. |
If Common Shares are issued pursuant to this Section
1(d), the Company hereby acknowledges and agrees that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired
by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally
issued pursuant to the Securities Purchase Agreement. The Company agrees not to take any position contrary to this Section 1(d).
(e) Disputes. In the
case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall
promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 12.
(f) Beneficial Ownership
Limitations on Exercises. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of
any portion of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to the terms and
conditions of this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving
effect to such exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99%
(the “Maximum Percentage”) of the number of Common Shares outstanding immediately after giving effect to such exercise.
For purposes of the foregoing sentence, the aggregate number of Common Shares beneficially owned by the Holder and the other Attribution
Parties shall include the number of Common Shares held by the Holder and all other Attribution Parties plus the number of Common Shares
issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude the number
of Common Shares which would be issuable upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by
the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including
the Series B Warrants) and Pre-funded Warrants beneficially owned by the Holder or any other Attribution Party subject to a limitation
on conversion or exercise analogous to the limitation contained in this Section 1(f). For purposes of this Section 1(f), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”).
For purposes of this Warrant, in determining the number of outstanding Common Shares the Holder may acquire upon the exercise of this
Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding Common Shares as reflected in (x) the
Company’s most recent Annual Report on Form 10-K, Quarter Report on Form 10-Q, Current Report on Form 8-K or other public filing
with the Securities and Exchange Commission (the “SEC”), as the case may be, (y) a more recent public announcement
by the Company or (3) any other written notice by the Company or the Transfer Agent setting forth the number of Common Shares outstanding
(the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when
the actual number of outstanding Common Shares is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder
in writing of the number of Common Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s
beneficial ownership, as determined pursuant to this Section 1(f), to exceed the Maximum Percentage, the Holder must notify the Company
of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is
reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder
any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder,
the Company shall within one (1) Trading Day confirm orally and in writing or by electronic mail to the Holder the number of Common Shares
then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or exercise
of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported
Outstanding Share Number was reported. In the event that the issuance of Common Shares to the Holder upon exercise of this Warrant results
in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of
the number of outstanding Common Shares (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the
Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess
Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or
to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void,
the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. For purposes of clarity, the Common
Shares issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned
by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No
prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this
paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 1(f) to the extent necessary to correct this paragraph
or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in
this Section 1(f) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation
contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
(g) Insufficient Authorized
Shares. If at any time while this Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved
Common Shares to satisfy its obligation to reserve for issuance upon exercise of this Warrant at least a number of Common Shares equal
to 100% of the number of Common Shares as shall from time to time be necessary to effect the exercise of all of this Warrant then outstanding
without regard to any limitation on exercise included herein and assuming that the shares underlying this Warrant are adjusted based on
a Reset Price equal to $0.065 (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations,
reverse stock splits, or other similar events occurring after the Subscription Date) (the “Required Reserve Amount”
and the failure to have such sufficient number of authorized and unreserved Common Shares, an “Authorized Share Failure”),
then the Company shall immediately take all action necessary to increase the Company’s authorized Common Shares to an amount sufficient
to allow the Company to reserve the Required Reserve Amount for this Warrant then outstanding. Without limiting the generality of the
foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than
sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its shareholders for the approval
of an increase in the number of authorized Common Shares. In connection with such meeting, the Company shall provide each shareholder
with a proxy statement and shall use its best efforts to solicit its shareholders’ approval of such increase in authorized Common
Shares and to cause its board of directors to recommend to the shareholders that they approve such proposal. Notwithstanding the foregoing,
if any such time of an Authorized Share Failure, the Company is able to obtain the approval of holders of a majority of the Common Shares
voting at a general meeting to approve the increase in the number of authorized Common Shares, the Company may satisfy this obligation
by obtaining such approval. In the event that upon any exercise of this Warrant, the Company does not have sufficient authorized shares
to deliver in satisfaction of such exercise, then unless the Holder elects to void such attempted exercise, the Holder may require the
Company to pay to the Holder within three (3) Trading Days of the applicable exercise, cash in an amount equal to the product of (i) the
quotient determined by dividing (x) the number of Warrant Shares that the Company is unable to deliver pursuant to this Section 1(g),
by (y) the total number of Warrant Shares issuable upon exercise of this Warrant (without regard to any limitations or restrictions on
exercise of this Warrant) and (ii) the Black Scholes Value; provided, that (x) references to “the day immediately following the
public announcement of the applicable Fundamental Transaction” in the definition of “Black Scholes Value” shall instead
refer to “the date the Holder exercises this Warrant and the Company cannot deliver the required number of Warrant Shares because
of an Authorized Share Failure” and (y) clause (iii) of the definition of “Black Scholes Value” shall instead refer
to “the underlying price per share used in such calculation shall be the highest Weighted Average Price during the period beginning
on the date of the applicable date of exercise and the date that the Company makes the applicable cash payment.”
(h) Conversion of Warrant.
If, at any time while this Warrant remains outstanding, (i) the Company shall receive a written notice from the Nasdaq Stock Market LLC,
indicating that the Company is not in compliance with the minimum equity standard requirement for continued listing set forth in Nasdaq
Listing Rule 5550(b)(1) or (ii) on the Trading Day prior to the last day of any of the Company’s fiscal reporting periods, the Company
determines in good faith and after consultation with its independent auditors that the Company will not be in compliance with Nasdaq Listing
Rule 5550(b)(1), then without the need for further consent or action by the Holder or the Company, in the event of the occurrence of clause
(i), the Company or the Holder and in the event of the occurrence of clause (ii), solely the Company, may elect to convert all or pro
rata a part of, the remaining unexercised portion of this Warrant into Common Shares, at a ratio of 1 to 1, such that each outstanding
Warrant shall be converted into one Ordinary Share (the “Conversion”), provided however, that if, after giving effect
to the Conversion, the Holder’s beneficial ownership of Common Shares shall exceed the Maximum Percentage, the Holder shall be issued
with Pre-Funded Warrants, substantially in the form as attached to the Securities Purchase Agreement, in lieu of Common Shares. For the
avoidance of doubt, following the Conversion of this Warrant in whole or in part, the converted portion of this Warrant shall be deemed
exercised and be cancelled and be of no further effect. Notwithstanding anything to the contrary contained herein, any Conversion election
by the Company shall be permitted only to the minimum extent the Company in good faith, after consultation with its counsel and auditor,
determines necessary for the Company to remain in compliance with Nasdaq Listing Rule 5550(b)(1).
2. ADJUSTMENT OF EXERCISE
PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and the number of Warrant Shares shall be adjusted from time to time as follows:
(a) Adjustment Upon Issuance
of Common Shares. If and whenever on or after the Subscription Date, the Company issues or sells, or in accordance with this Section
2 is deemed to have issued or sold, any Common Shares (including the issuance or sale of Common Shares owned or held by or for the account
of the Company, but excluding Common Shares deemed to have been issued or sold by the Company in connection with any Excluded Securities)
for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”)
equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale (the foregoing a “Dilutive
Issuance”), then immediately after and subject to the consummation of such Dilutive Issuance, the Exercise Price then in effect
shall be reduced to an amount equal to the New Issuance Price. For the avoidance of doubt, for the purposes of this Section 2(a), pre-funded
warrants to purchase Common Shares shall be treated as Common Shares. For purposes of determining the adjusted Exercise Price under this
Section 2(a), the following shall be applicable:
(i) Issuance of
Options. If the Company in any manner grants or sells any Options and the lowest price per share for which one Ordinary Share is issuable
upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of
any such Option is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section 2(a)(i),
the “lowest price per share for which one Ordinary Share is issuable upon the exercise of any such Option or upon conversion, exercise
or exchange of any Convertible Securities issuable upon exercise of any such Option” shall be equal to the sum of the lowest amounts
of consideration (if any) received or receivable by the Company with respect to any one Ordinary Share upon the granting or sale of the
Option, upon exercise of the Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such
Option less any consideration paid or payable by the Company with respect to such one Ordinary Share upon the granting or sale of such
Option, upon exercise of such Option and upon conversion exercise or exchange of any Convertible Security issuable upon exercise of such
Option. No further adjustment of the Exercise Price shall be made upon the actual issuance of such Common Shares or of such Convertible
Securities upon the exercise of such Options or upon the actual issuance of such Common Shares upon conversion, exercise or exchange of
such Convertible Securities.
(ii) Issuance of
Convertible Securities. If the Company in any manner issues or sells any Convertible Securities and the lowest price per share for
which one Ordinary Share is issuable upon the conversion, exercise or exchange thereof is less than the Applicable Price, then such Ordinary
Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible
Securities for such price per share. For the purposes of this Section 2(a)(ii), the “lowest price per share for which one Ordinary
Share is issuable upon the conversion, exercise or exchange thereof” shall be equal to the sum of the lowest amounts of consideration
(if any) received or receivable by the Company with respect to any one Ordinary Share upon the issuance or sale of the Convertible Security
and upon conversion, exercise or exchange of such Convertible Security less any consideration paid or payable by the Company with respect
to such one Ordinary Share upon the issuance or sale of such Convertible Security and upon conversion, exercise or exchange of such Convertible
Security. No further adjustment of the Exercise Price shall be made upon the actual issuance of such Common Shares upon conversion, exercise
or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any
Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 2(a), no further adjustment
of the Exercise Price shall be made by reason of such issue or sale.
(iii) Change in
Option Price or Rate of Conversion. If the purchase price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible
into or exercisable or exchangeable for Common Shares increases or decreases at any time, the Exercise Price in effect at the time of
such increase or decrease shall be adjusted to the Exercise Price, which would have been in effect at such time had such Options or Convertible
Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate,
as the case may be, at the time initially granted, issued or sold. For purposes of this Section 2(a)(iii), if the terms of any Option
or Convertible Security that was outstanding as of the Subscription Date are increased or decreased in the manner described in the immediately
preceding sentence, then such Option or Convertible Security and the Common Shares deemed issuable upon exercise, conversion or exchange
thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 2(a) shall
be made if such adjustment would result in an increase of the Exercise Price then in effect.
(iv) Calculation
of Consideration Received. In case any Option is issued in connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction, (x) the Options will be deemed to have been issued for twelve and a half cents ($0.125) per Option
(the “Option Value”) and (y) the other securities issued or sold in such integrated transaction shall be deemed to
have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid or
payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value of such Options. If any
Common Shares, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration
other than cash received therefor will be deemed to be the net amount received by the Company therefor. If any Common Shares, Options
or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company
will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the
amount of consideration received by the Company will be the Closing Sale Price of such publicly traded securities on the date of receipt
of such publicly traded securities. If any Common Shares, Options or Convertible Securities are issued to the owners of the non-surviving
entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed
to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Shares,
Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities
will be determined jointly by the Company and the Required Holders. If such parties are unable to reach agreement within ten (10) days
after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration
will be determined within five (5) Business Days after the tenth (10th) day following
the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Required Holders. The determination
of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall
be borne by the Company. Notwithstanding anything to the contrary contained herein, if a calculation pursuant to this Section 2(a)(iv)
would result in an Exercise Price that is lower than the par value of the Common Shares, then the Exercise Price shall be deemed to equal
the par value of the Common Shares.
(v) Record Date.
If the Company takes a record of the holders of Common Shares for the purpose of entitling them (A) to receive a dividend or other distribution
payable in Common Shares, Options or in Convertible Securities or (B) to subscribe for or purchase Common Shares, Options or Convertible
Securities, then such record date will be deemed to be the date of the issue or sale of the Common Shares deemed to have been issued or
sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription
or purchase, as the case may be.
(vi) No Readjustment.
For the avoidance of doubt, in the event that following the consummation of a Dilutive Issuance and the Exercise Price has been adjusted
pursuant to this Section 2(a) and the Dilutive Issuance that triggered such adjustment is unwound, cancelled or expires after the fact
for any reason, the Exercise Price will not be readjusted to the Exercise Price that would have been in effect if such Dilutive Issuance
had not occurred or been consummated.
(b) Voluntary Adjustment
By Company. Subject to the rules and regulations of the primary Trading Market, the Company may at any time during the term of this
Warrant, with the prior written consent of the Required Holders, reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the Board of Directors of the Company.
(c) Adjustment Upon Subdivision
or Combination of Common Shares. If the Company at any time on or after the Subscription Date subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its outstanding Common Shares into a greater number of shares, the Exercise
Price in effect immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise) one
or more classes of its outstanding Common Shares into a smaller number of shares, the Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under
this Section 2(c) shall become effective at the close of business on the date the subdivision or combination becomes effective.
(d) Reset. On the Reset
Date (as such term is defined in the Series B Warrants) for any Registrable Securities, the Exercise Price for such Registrable Securities
shall be adjusted to equal the lower of (i) the Exercise Price then in effect and (ii) the Reset Price determined as of the date of determination.
Upon such reset of the Exercise Price pursuant to this Section 2(d), the number of Warrant Shares issuable immediately prior to such reset
shall be adjusted to the number of Common Shares determined by multiplying the Exercise Price then in effect at issuance by the number
of Warrant Shares acquirable upon exercise of this Warrant for such Registrable Securities immediately prior to such reset and dividing
the product thereof by the Exercise Price resulting from such reset.
(i) Notwithstanding
the foregoing, if a Holder requests to exercise this Warrant in whole or in part on any given date prior to the Reset Date, solely with
respect to such portion of this Warrant being exercised on such applicable Exercise Date, (a) such applicable Reset Date shall be deemed
to mean the Exercise Date, (b) such applicable Reset Period (as such term is defined in the Series B Warrants) shall be deemed to ended
on the Trading Day immediately prior to the Exercise Date and (c) the applicable Reset Price and Reset Share Amount for such exercised
Warrants shall be calculated pursuant to this Section 2(d). For the avoidance of doubt, following the calculation of the Reset Price and
Reset Share Amount pursuant to this Section 2(d)(i), the Company’s obligations with regard to such exercised Warrants shall be deemed
satisfied and no additional Reset Price and Reset Share Amount shall apply to such exercised Warrants.
(ii) Partial Reset.
If less than all of the Registrable Securities have been registered pursuant to the clause (i) of the definition of Reset Date and a Holder
has deemed the condition satisfied as to such Registrable Securities, then the Reset Date shall apply only to such portion of the Registrable
Securities, and the Company’s obligations will continue to apply with regard to the Registrable Securities for which the definition
of Reset Date has not been not satisfied.
(e) Share Combination Event
Adjustment. In addition to the adjustments set forth in this Section 2, if at any time on or after the Issuance Date there occurs
any share split, reverse share split, share dividend, share combination recapitalization or other similar transaction involving the Common
Shares (each, a “Share Combination Event”, and such date on which the Share Combination Event is effected, the “Share
Combination Event Date”) and the lowest Weighted Average Price of the Common Shares during the period commencing on the Trading
Day immediately following the applicable Share Combination Event Date and ending on the fifth (5th)
Trading Day immediately following the applicable Share Combination Event Date (such period the “Share Combination Adjustment
Period” and such price the “Event Market Price”) (provided if the Share Combination Event is effective prior
to the opening of trading on the Principal Market (or if the Common Shares no longer trade on the Principal Market, on the primary Eligible
Market on which the Common Shares then trade), is less than the Exercise Price then in effect (after giving effect to the adjustment in
clause 2(c) above, then, at the close of trading on the Principal Market (or if the Common Shares no longer trade on the Principal Market,
on the primary Eligible Market on which the Common Shares then trade) on the last day of the Share Combination Adjustment Period, the
Exercise Price then in effect on such 5th Trading Day shall be reduced (but in no event
increased) to the Event Market Price and the number of Warrant Shares issuable upon exercise of this Warrant hereunder (such resulting
number, the “Share Combination Issuable Shares”) shall be increased such that the aggregate Exercise Price payable
hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the aggregate Exercise Price on the Issuance
Date for the Warrant Shares then outstanding. For the avoidance of doubt, if the adjustment in this Section 2(e) would otherwise result
in an increase in the Exercise Price hereunder, no adjustment shall be made, and if this Warrant is exercised, on any date on which the
Holder delivers an Exercise Notice to the Company (an “Exercise Date”) during the Share Combination Adjustment Period,
solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Share Combination Adjustment
Period shall be deemed to have ended on, and include, the Trading Day immediately prior to such Exercise Date and the Event Market Price
on such applicable Exercise Date will be the lowest VWAP of the Common Shares immediately prior to the Share Combination Event Date and
ending on, and including the Trading Day immediately prior to such Exercise Date.
(f) Other Events. If
any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including,
without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s
Board of Directors will make an appropriate adjustment in the Exercise Price and the number of Warrant Shares, as mutually determined
by the Company’s Board of Directors and the Required Holders, so as to protect the rights of the Holder; provided that no
such adjustment pursuant to this Section 2(f) will increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined
pursuant to this Section 2.
2. RIGHTS UPON DISTRIBUTION
OF ASSETS. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets)
to holders of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock
or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant and while the Warrant is outstanding, then, in each such case, the Exercise Price shall be adjusted by multiplying
the Exercise Price in effect immediately prior to the record date fixed for determination of shareholders entitled to receive such distribution
by a fraction of which the denominator shall be the Weighted Average Price determined as of the record date mentioned above, and of which
the numerator shall be such Weighted Average Price on such record date less the then per share fair market value at such record date of
the portion of such assets or evidence of indebtedness or rights or warrants so distributed applicable to one outstanding Ordinary Share
as determined by the Board of Directors in good faith. In either case the adjustments shall be described in a statement provided to the
Holder of the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to one Ordinary Share.
Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the record date mentioned
above.
3. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.
(a) Purchase Rights.
In addition to any adjustments pursuant to Section 2 above, if at any time the Company grants, issues or sells any Options, Convertible
Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Shares
(the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights,
the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Common Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation,
the Maximum Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights,
or, if no such record is taken, the date as of which the record holders of Common Shares are to be determined for the grant, issue or
sale of such Purchase Rights (provided, however, that to the extent that the Holder’s right to participate in any
such Purchase Right would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall
not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial ownership of such Common
Shares as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase Right to such extent shall be held
in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted,
issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if
there had been no such limitation).
(b) Fundamental Transactions.
The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes in writing all of the obligations
of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 4(b) pursuant
to written agreements in form and substance satisfactory to the Required Holders, including agreements, if so requested by the Holder,
to deliver to each holder of the SPA Warrants in exchange for such SPA Warrants a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant, including, without limitation, an adjusted exercise price equal
to the value for the Common Shares reflected by the terms of such Fundamental Transaction, and exercisable for a corresponding number
of shares of capital stock equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant (without regard to
any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and satisfactory to the Required Holders, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the Common Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such adjustments to
the number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the occurrence or consummation of such Fundamental Transaction). Any security issuable or potentially issuable to the Holder
pursuant to the terms of this Warrant on the consummation of a Fundamental Transaction that was within the Company’s control to
enter into or to avoid shall be registered and freely tradable by the Holder without any restriction or limitation or the requirement
to be subject to any holding period pursuant to any applicable securities laws. No later than (i)
thirty (30) days prior to the occurrence or consummation of any Fundamental Transaction or (ii) if later, the first Trading Day following
the date the Company first becomes aware of the occurrence or potential occurrence of a Fundamental Transaction, the Company shall deliver
written notice thereof via facsimile or electronic mail and overnight courier to the Holder. Upon the occurrence or consummation
of any Fundamental Transaction that was within the Company’s control to enter into or to avoid, it shall be a required condition
to the occurrence or consummation of any Fundamental Transaction that, the Company and the Successor Entity or Successor Entities, jointly
and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly and severally succeed
to, and be added to the term “Company” under this Warrant (so that from and after the date of such Fundamental Transaction,
each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Company and the Successor Entity or Successor Entities, jointly and severally,
may exercise every right and power of the Company prior thereto and shall assume all of the obligations of the Company prior thereto under
this Warrant with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named
as the Company in this Warrant, and, solely at the request of the Holder, if the Successor Entity and/or Successor Entities is a publicly
traded corporation whose common stock is quoted on or listed for trading on an Eligible Market, shall deliver (in addition to and without
limiting any right under this Warrant) to the Holder in exchange for this Warrant a security of the Successor Entity and/or Successor
Entities evidenced by a written instrument substantially similar in form and substance to this Warrant and exercisable for a corresponding
number of shares of capital stock of the Successor Entity and/or Successor Entities (the “Successor Capital Stock”)
equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise
of this Warrant) prior to such Fundamental Transaction (such corresponding number of shares of Successor Capital Stock to be delivered
to the Holder shall be equal to the greater of (A) the quotient of (i) the aggregate dollar value of all consideration (including cash
consideration and any consideration other than cash (“Non-Cash Consideration”), in such Fundamental Transaction, as
such values are set forth in any definitive agreement for the Fundamental Transaction that has been executed at the time of the first
public announcement of the Fundamental Transaction or, if no such value is determinable from such definitive agreement, as determined
in accordance with Section 12 with the term “Non-Cash Consideration” being substituted for the term “Exercise Price”)
that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other
determination date for the event resulting in such Fundamental Transaction, had this Warrant been exercised immediately prior to such
Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction
(without regard to any limitations on the exercise of this Warrant) (the “Aggregate Consideration”) divided by (ii)
the per share Closing Sale Price of such Successor Capital Stock on the Trading Day immediately prior to the consummation or occurrence
of the Fundamental Transaction and (B) the product of (i) the quotient obtained by dividing (x) the Aggregate Consideration, by (y) the
Closing Sale Price of the Common Shares on the Trading Day immediately prior to the consummation or occurrence of the Fundamental Transaction
and (ii) the highest exchange ratio pursuant to which any shareholder of the Company may exchange Common Shares for Successor Capital
Stock) (provided, however, to the extent that the Holder’s right to receive any such shares of publicly traded common
stock (or their equivalent) of the Successor Entity would result in the Holder and its other Attribution Parties exceeding the Maximum
Percentage, if applicable, then the Holder shall not be entitled to receive such shares to such extent (and shall not be entitled to beneficial
ownership of such shares of publicly traded common stock (or their equivalent) of the Successor Entity as a result of such consideration
to such extent) and the portion of such shares shall be held in abeyance for the Holder until such time or times, as its right thereto
would not result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall
be delivered such shares to the extent as if there had been no such limitation), and such security shall be satisfactory to the Holder,
and with an identical exercise price to the Exercise Price hereunder (such adjustments to the number of shares of capital stock and such
exercise price being for the purpose of protecting after the consummation or occurrence of such Fundamental Transaction the economic value
of this Warrant that was in effect immediately prior to the consummation or occurrence of such Fundamental Transaction, as elected by
the Holder solely at its option). Upon occurrence or consummation of the Fundamental Transaction, and it shall be a required condition
to the occurrence or consummation of such Fundamental Transaction that, the Company and the Successor Entity or Successor Entities shall
deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the occurrence or consummation
of the Fundamental Transaction, as elected by the Holder solely at its option, Common Shares, Successor Capital Stock or, in lieu of the
Common Shares or Successor Capital Stock (or other securities, cash, assets or other property purchasable upon the exercise of this Warrant
prior to such Fundamental Transaction), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants
or other purchase or subscription rights), which for purposes of clarification may continue to be Common Shares, if any, that the Holder
would have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination
date for the event resulting in such Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction
or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction (without regard to any
limitations on the exercise of this Warrant), as adjusted in accordance with the provisions of this Warrant. In addition to and not in
substitution for any other rights hereunder, prior to the occurrence or consummation of any Fundamental Transaction pursuant to which
holders of Common Shares are entitled to receive securities, cash, assets or other property with respect to or in exchange for Common
Shares (a “Corporate Event”), the Company shall make appropriate provision to ensure that, and any applicable Successor
Entity or Successor Entities shall ensure that, and it shall be a required condition to the occurrence or consummation of such Corporate
Event that, the Holder will thereafter have the right to receive upon exercise of this Warrant at any time after the occurrence or consummation
of the Corporate Event, Common Shares or Successor Capital Stock or, if so elected by the Holder, in lieu of the Common Shares (or other
securities, cash, assets or other property) purchasable upon the exercise of this Warrant prior to such Corporate Event (but not in lieu
of such items still issuable under Sections 3 and 4(a), which shall continue to be receivable on the Common Shares or on the such shares
of stock, securities, cash, assets or any other property otherwise receivable with respect to or in exchange for Common Shares), such
shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights
and any Common Shares) which the Holder would have been entitled to receive upon the occurrence or consummation of such Corporate Event
or the record, eligibility or other determination date for the event resulting in such Corporate Event, had this Warrant been exercised
immediately prior to such Corporate Event or the record, eligibility or other determination date for the event resulting in such Corporate
Event (without regard to any limitations on exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a
form and substance reasonably satisfactory to the Holder. The provisions of this Section 4(b) shall apply similarly and equally to successive
Fundamental Transactions and Corporate Events.
(c) Notwithstanding the foregoing,
in the event of Fundamental Transaction, at the request of the Holder delivered before the ninetieth (90th)
day after the occurrence or consummation of such Fundamental Transaction, the Company (or the Successor Entity) shall purchase this Warrant
from the Holder by paying to the Holder, within five (5) Business Days after such request (or, if later, on the effective date of the
Fundamental Transaction), cash in an amount equal to the Black Scholes Value of the remaining unexercised portion of this Warrant on the
date of such Fundamental Transaction; provided, however, that, if such Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in
the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders
of Common Shares of the Company in connection with such Fundamental Transaction, whether that consideration be in the form of cash, stock
or any combination thereof, or whether the holders of Common Shares are given the choice to receive from among alternative forms of consideration
in connection with such Fundamental Transaction; provided, further, that if that if holders of Common Shares of the Company
are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Shares will be deemed to have received
Common Shares of the Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental
Transaction.
4. NON-CIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Amended and Restated Articles of Association or
Bylaws, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and
will at all times in good faith carry out all of the provisions of this Warrant and take all action as may be required to protect the
rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common
Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Common Shares upon the exercise
of this Warrant, and (iii) shall, so long as any of the SPA Warrants are outstanding, take all action necessary to reserve and keep available
out of its authorized and unissued Common Shares, solely for the purpose of effecting the exercise of the SPA Warrants, 100% of the number
of Common Shares as shall from time to time be necessary to effect the exercise of the SPA Warrants then outstanding (without regard to
any limitations on exercise).
5. WARRANT HOLDER NOT DEEMED
A SHAREHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a holder of
this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder
of this Warrant, any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any corporate action
(whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice
of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such
Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed
as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a shareholder
of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the
Company shall provide the Holder with copies of the same notices and other information given to the shareholders of the Company generally,
contemporaneously with the giving thereof to the shareholders.
6. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant.
If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may request, representing
the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares
then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right
to purchase the number of Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new
Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares
then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is
designated by the Holder at the time of such surrender; provided, however, that no SPA Warrants for fractional Warrant Shares
shall be given.
(d) Issuance of New Warrants.
Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor
with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying
this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by
the Holder which, when added to the number of Common Shares underlying the other new Warrants issued in connection with such issuance,
does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face
of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.
7. NOTICES. Whenever
notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section
9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant
to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality
of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Exercise Price, setting
forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on
which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Shares, (B) with
respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or
other property to holders of Common Shares or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution
or liquidation; provided in each case that such information shall be made known to the public prior to or in conjunction with such
notice being provided to the Holder. It is expressly understood and agreed that the time of exercise specified by the Holder in each Exercise
Notice shall be definitive and may not be disputed or challenged by the Company.
8. AMENDMENT AND WAIVER.
Except as otherwise provided herein, the provisions of this Warrant may be amended or waived and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of
the Holder.
9. GOVERNING LAW; JURISDICTION;
JURY TRIAL. This Warrant shall be governed by and 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 New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. The Company hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to the Company at the address set forth in Section 9(f) of the Securities Purchase Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate
to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the
Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment
or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
10. CONSTRUCTION; HEADINGS.
This Warrant shall be deemed to be jointly drafted by the Company and all the Buyers and shall not be construed against any Person as
the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation
of, this Warrant.
11. DISPUTE RESOLUTION.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company
shall submit the disputed determinations or arithmetic calculations via facsimile or electronic mail within two (2) Business Days of receipt
of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder and the Company are unable to agree
upon such determination or calculation of the Exercise Price or the Warrant Shares within three (3) Business Days of such disputed determination
or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) Business Days submit via facsimile or
electronic mail (a) the disputed determination of the Exercise Price to an independent, reputable investment bank selected by the Company
and approved by the Holder or (b) the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside
accountant. The Company shall cause at its expense the investment bank or the accountant, as the case may be, to perform the determinations
or calculations and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives the
disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation, as the case
may be, shall be binding upon all parties absent demonstrable error.
12. REMEDIES, OTHER OBLIGATIONS,
BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available
under this Warrant and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive
relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with
the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach
or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to an injunction restraining
any breach, without the necessity of showing economic loss and without any bond or other security being required.
13. TRANSFER. This Warrant
and the Warrant Shares may be offered for sale, sold, transferred, pledged or assigned without the consent of the Company, except as may
otherwise be required by Section 2(f) of the Securities Purchase Agreement.
14. SEVERABILITY. If
any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
15. DISCLOSURE. Upon
receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith determined
that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries
(as defined in the Securities Purchase Agreement), the Company shall contemporaneously with any such receipt or delivery publicly disclose
such material, nonpublic information on a Report of Foreign Private Issuer on Form 6-K or otherwise. In the event that the Company believes
that a notice contains material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to the
Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume
that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.
16. CERTAIN DEFINITIONS.
For purposes of this Warrant, the following terms shall have the following meanings:
(a) “1933 Act”
means the Securities Act of 1933, as amended.
(b) “Affiliate”
shall have the meaning ascribed to such term in Rule 405 of the 1933 Act.
(c) “Approved Stock
Plan” means any employee benefit plan or share incentive plan which has been approved by the Board of Directors of the Company,
pursuant to which the Company’s securities may be issued to any employee, officer or director for services provided to the Company.
(d) “Attribution
Parties” means, collectively, the following Persons: (i) any investment vehicle, including, any funds, feeder funds or managed
accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment
manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any
Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons
whose beneficial ownership of the Common Shares would or could be aggregated with the Holder’s and the other Attribution Parties
for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all
other Attribution Parties to the Maximum Percentage.
(e) “Black Scholes
Value” means the value of this Warrant calculated using the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg determined as of the day immediately following the public announcement of the applicable Fundamental Transaction,
or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, for pricing purposes
and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this
Warrant as of such date of request, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from
the HVT function on Bloomberg as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction,
or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, (iii) the underlying
price per share used in such calculation shall be the greater of (x) the highest Weighted Average Price of the Common Shares during the
period beginning on the Trading Day prior to the execution of definitive documentation relating to the applicable Fundamental Transaction
and ending on (A) the Trading Day immediately following the public announcement of such Fundamental Transaction, if the applicable Fundamental
Transaction is publicly announced or (B) the Trading Day immediately following the consummation of the applicable Fundamental Transaction
if the applicable Fundamental Transaction is not publicly announced and (y) the sum of the price per share being offered in cash, if any,
plus the value of any non-cash consideration, if any, being offered in the Fundamental Transaction, (iv) a zero cost of borrow and (v)
a 360 day annualization factor.
(f) “Bloomberg”
means Bloomberg Financial Markets.
(g) “Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed.
(h) “Closing Bid
Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and last
closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins
to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then
the last bid price or the last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg,
or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of
such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported on the Pink Open Market. If the Closing Bid Price or the Closing Sale
Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale
Price, as the case may be, of such security on such date shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved
pursuant to Section 12. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction during the applicable calculation period.
(i) Intentionally omitted.
(j) “Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for Common Shares.
(k) Intentionally omitted.
(l) “Eligible Market”
means the Principal Market, the NYSE American, The Nasdaq Global Select Market, The Nasdaq Global Market, The New York Stock Exchange,
Inc., the OTC QB or the OTC QX.
(m) “Excluded Securities”
means any Common Shares issued or issuable or deemed to be issued in accordance with Section 2(a) hereof by the Company: (i) under any
Approved Stock Plan, (ii) upon exercise of any SPA Warrants, any Series B Warrants and any Pre-funded Warrants, in each case, issued pursuant
to the Securities Purchase Agreement; provided, that the terms of such SPA Warrants, Series B Warrants and Pre-funded Warrants
are not amended, modified or changed on or after the Subscription Date, (iii) upon conversion, exercise or exchange of any Options or
Convertible Securities which are outstanding on the day immediately preceding the Subscription Date; provided, that such issuance
of Common Shares upon exercise of such Options or Convertible Securities is made pursuant to the terms of such Options or Convertible
Securities in effect on the date immediately preceding the Subscription Date and such Options or Convertible Securities are not amended,
modified or changed on or after the Subscription Date (iv) upon a dividend or distribution to all holders of Common Shares (including
pursuant to a rights plan) or (v) upon a stock split, reverse stock split, distribution of bonus shares, combination or other recapitalization
events.
(n) “Expiration Date”
means the date sixty-six (66) months after the Stockholder Approval (as defined in the Securities Purchase Agreement) is obtained or,
if such date falls on a day other than a Business Day or on which trading does not take place on the Principal Market (a “Holiday”),
the next day that is not a Holiday.
(o) Intentionally omitted.
(p) Intentionally
omitted.
(q) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another
Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of
the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities,
or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Shares be subject
to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least (x)
50% of the outstanding Common Shares, (y) 50% of the outstanding Common Shares calculated as if any Common Shares held by all Subject
Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were
not outstanding; or (z) such number of Common Shares such that all Subject Entities making or party to, or Affiliated with any Subject
Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding Common Shares, or (iv) consummate a stock purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject
Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding Common
Shares, (y) at least 50% of the outstanding Common Shares calculated as if any Common Shares held by all the Subject Entities making or
party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were not
outstanding; or (z) such number of Common Shares such that the Subject Entities become collectively the beneficial owners (as defined
in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding Common Shares, or (v) reorganize, recapitalize or reclassify its
Common Shares, (B) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or
more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial
owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in outstanding Common Shares, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever,
of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Shares, (y) at least 50%
of the aggregate ordinary voting power represented by issued and outstanding Common Shares not held by all such Subject Entities as of
the Subscription Date calculated as if any Common Shares held by all such Subject Entities were not outstanding, or (z) a percentage of
the aggregate ordinary voting power represented by issued and outstanding Common Shares or other equity securities of the Company sufficient
to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Company
to surrender their Common Shares without approval of the shareholders of the Company or (C) directly or indirectly, including through
Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument
or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary
to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such
instrument or transaction.
(r) “Group” means a “group”
as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(s) Intentionally omitted.
(t) Intentionally omitted.
(u) “Options”
means any rights, warrants or options to subscribe for or purchase (i) Common Shares or (ii) Convertible Securities.
(v) “Common Shares”
means (i) the Company’s Common Shares, no par value, and (ii) any share capital into which such Common Shares shall have been changed
or any share capital resulting from a reclassification, reorganization or reclassification of such Common Shares.
(w) “Parent Entity”
of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose common capital or
equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Required Holders, any other market, exchange
or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Required Holders
or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation
of the Fundamental Transaction.
(x) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency thereof.
(y) “Pre-funded Warrants”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(z) “Principal Market”
means The Nasdaq Capital Market.
(aa) Intentionally omitted.
(bb) Intentionally omitted.
(cc) Intentionally omitted.
(dd) Intentionally omitted.
(ee) “Registration
Rights Agreement” means that certain Registration Rights Agreement dated as of the Subscription Date by and among the Company
and the Buyers.
(ff) “Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale by the Buyers of the Registrable Securities (as defined in the Registration Rights Agreement).
(gg) “Required Holders”
means the holders of the SPA Warrants representing at least a majority of the Common Shares underlying the SPA Warrants then outstanding.
(hh) Intentionally omitted.
(ii) “Reset Date”
shall have the meaning ascribed to such term in the Series B Warrants.
(jj) “Reset Price”
shall have the meaning ascribed to such term in the Series B Warrants.
(kk) Intentionally omitted.
(ll) Intentionally
omitted.
(mm) “Series B Warrants”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(nn) “Standard Settlement
Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Eligible
Market with respect to the Common Shares as in effect on the date of delivery of the applicable Exercise Notice.
(oo) “Subject Entity”
means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(pp) “Successor Entity”
means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by, resulting from or surviving
any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with
which such Fundamental Transaction shall have been entered into.
(qq) Intentionally omitted.
(rr) Intentionally
omitted.
(ss) “Trading Day”
means any day on which the Common Shares are traded on the Principal Market, or, if the Principal Market is not the principal trading
market for the Common Shares on such day, then on the principal securities exchange or securities market on which the Common Shares are
then traded.
(tt) “Weighted Average
Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market
during the period beginning at 9:30:01 a.m., New York time (or such other time as the Principal Market publicly announces is the official
open of trading), and ending at 4:00:00 p.m., New York time (or such other time as the Principal Market publicly announces is the official
close of trading), as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not apply, the
dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30:01 a.m., New York time (or such other time as such market publicly announces is the official open
of trading), and ending at 4:00:00 p.m., New York time (or such other time as such market publicly announces is the official close of
trading), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as
reported on the Pink Open Market. If the Weighted Average Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the
Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute
shall be resolved pursuant to Section 12 with the term “Weighted Average Price” being substituted for the term “Exercise
Price.” All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction during the applicable calculation period.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this
Warrant to Purchase Common Shares to be duly executed as of the Issuance Date set out above.
SOLIDION TECHNOLOGY, INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS
WARRANT TO PURCHASE COMMON SHARES
SOLIDION TECHNOLOGY, INC.
The undersigned holder hereby
exercises the right to purchase _________________ Common Shares (“Warrant Shares”) of Solidion Technology, Inc., a
Delaware corporation (the “Company”), evidenced by the attached Warrant to Purchase Common Shares (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Exercise Price.
The Holder intends that payment of the Exercise Price shall be made as:
____________ a “Cash
Exercise” with respect to _________________ Warrant Shares; and/or
____________ a “Cashless
Exercise” with respect to _______________ Warrant Shares, resulting in a delivery obligation of the Company to the Holder of
__________ Common Shares representing the applicable Net Number.
2. Payment of Exercise Price.
In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto,
the holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance with the terms of the
Warrant.
3. Delivery of Warrant Shares.
The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Warrant.
Date: _______________ __, ______
Name of Registered Holder
ACKNOWLEDGMENT
The Company hereby acknowledges
this Exercise Notice and hereby directs Continental Stock & Transfer Company, LLC to issue the above indicated number of Common Shares
in accordance with the Transfer Agent Instructions dated [●], 2024 from the Company and acknowledged and agreed to by Continental
Stock & Transfer Company, LLC.
SOLIDION TECHNOLOGY, INC. |
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Name: |
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Title: |
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19
Exhibit 4.2
[FORM OF SERIES D WARRANT]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B)
AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II)
UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
SOLIDION TECHNOLOGY, INC.
Series
D Warrant To Purchase Common Shares
Warrant No.: ______
Number of Common Shares: The Maximum Eligibility
Number
Date of Issuance: [●], 2024 (“Issuance Date”)
Solidion Technology, Inc., a
Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, [HOLDER], the registered holder hereof or its permitted
assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise
Price (as defined below) then in effect, at any time or times on or after the date hereof, but not after 11:59 p.m., New York time, on
the Expiration Date, (as defined below), up to the Maximum Eligibility Number (as defined below) of fully paid nonassessable Common Shares,
subject to adjustment as provided herein (the “Warrant Shares”). Except as otherwise defined herein, capitalized terms
in this Warrant to Purchase Common Shares (including any Warrants to Purchase Common Shares issued in exchange, transfer or replacement
hereof, this “Warrant”), shall have the meanings set forth in Section 17. This Warrant is one of the Series D Warrants
to purchase Common Shares (the “SPA Warrants”) issued pursuant to Section 1 of that certain Securities Purchase Agreement,
dated as of [●], 2024 (the “Subscription Date”), by and among the Company and the investors (the “Buyers”)
referred to therein (the “Securities Purchase Agreement”). Capitalized terms used herein and not otherwise defined
shall have the definitions ascribed to such terms in the Securities Purchase Agreement.
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise.
Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)), this Warrant may
be exercised by the Holder at any time or times on or after the Reset Date, in whole or in part, by (i) delivery of a written notice,
in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise
this Warrant and (ii) (A) payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash by wire transfer of immediately
available funds or (B) by notifying the Company that this Warrant is being exercised pursuant to a Cashless Exercise (as defined in Section
1(d)). The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery
of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original
Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. On or before the first
(1st) Trading Day following the date on which the Company has received the Exercise Notice,
the Company shall transmit by electronic mail an acknowledgment of confirmation of receipt of the Exercise Notice to the Holder and the
Company’s transfer agent (the “Transfer Agent”). On or before the earlier of (i) the second (2nd)
Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period, in each case, following the date on which the
Holder delivers the Exercise Notice to the Company, so long as the Holder delivers the Aggregate Exercise Price (or notice of a Cashless
Exercise) on or prior to the Trading Day following the date on which the Company has received the Exercise Notice (the “Share
Delivery Date”) (provided that if the Aggregate Exercise Price has not been delivered by such date, the Share Delivery Date
shall be one (1) Trading Day after the Aggregate Exercise Price (or notice of a Cashless Exercise) is delivered), the Company shall (X)
provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities
Transfer Program and (A) the Warrant Shares are subject to an effective resale registration statement in favor of the Holder or (B) if
exercised via Cashless Exercise, at a time when Rule 144 would be available for resale of the Warrant Shares by the Holder, credit such
aggregate number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s
balance account with DTC through its Deposit / Withdrawal At Custodian system, or (Y) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program or (A) the Warrant Shares are not subject to an effective resale registration statement
in favor of the Holder and (B) if exercised via Cashless Exercise, at a time when Rule 144 would not be available for resale of the Warrant
Shares by the Holder, deliver to the Holder, book entry statements evidencing the Warrant Shares, for the number of Warrant Shares to
which the Holder is entitled pursuant to such exercise. The Company shall be responsible for all fees and expenses of the Transfer Agent
and all fees and expenses with respect to the issuance of Warrant Shares via DTC, if any. Upon delivery of the Exercise Notice, the Holder
shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery
of the book entry statements evidencing such Warrant Shares, as the case may be. If this Warrant is submitted in connection with any exercise
pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the
number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than three
(3) Trading Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section 7(d)) representing the right
to purchase the number of Warrant Shares issuable immediately prior to such exercise under this Warrant, less the number of Warrant Shares
with respect to which this Warrant is exercised. No fractional Warrant Shares are to be issued upon the exercise of this Warrant, but
rather the number of Warrant Shares to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes
which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant. The Company’s obligations
to issue and deliver Warrant Shares in accordance with the terms and subject to the conditions hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination. Notwithstanding any provision of this Warrant to the contrary, no more than
the Maximum Eligibility Number of Warrant Shares shall be exercisable hereunder.
(b) Exercise Price.
For purposes of this Warrant, “Exercise Price” means $0.0001 per share, subject to adjustment as provided herein.
(c) Company’s Failure
to Timely Deliver Securities. If the Company shall fail to cause its Transfer Agent to transmit to the Holder on or prior to the Share
Delivery Date, Warrant Shares pursuant to an exercise notice delivered by the Holder and if after such date the Holder is required by
its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common Shares
to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request, (a) pay in cash to the
Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Common
Shares so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver
to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation
was executed, and (b) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares
for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of
Common Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example,
if the Holder purchases Common Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise
of Common Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (a) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit the Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver Common Shares upon the exercise of
this Warrant as required pursuant to the terms hereof.
(d) Cashless Exercise.
While the Series D Warrants are outstanding, the Company will use its best efforts to maintain the effectiveness of the Registration Statement.
Notwithstanding anything contained herein to the contrary, if the Registration Statement covering the resale of the Warrant Shares is
not available for the resale of such Warrant Shares, the Holder may, in its sole discretion, exercise this Warrant in whole or in part
and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate
Exercise Price, elect instead to receive upon such exercise the “Net Number” of Common Shares determined according to the
following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A x C)
B
For purposes of the foregoing formula:
| A= | the total number of shares with respect to which this Warrant
is then being exercised. |
B= |
as applicable: (i) the Weighted Average Price of the Common Shares on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the Weighted Average Price on the Trading Day immediately preceding the date of the applicable Exercise Notice or (z) the bid price of the Common Shares on the principal Trading Market as reported by Bloomberg as of the time of the Holder’s execution of the applicable Exercise Notice, if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 1(a) hereof or (iii) the Weighted Average Price of the Common Shares on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day; |
C= |
the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise. |
If Common Shares are issued pursuant to this Section
1(d), the Company hereby acknowledges and agrees that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired
by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally
issued pursuant to the Securities Purchase Agreement. The Company agrees not to take any position contrary to this Section 1(d).
(e) Disputes. In the
case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall
promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 12.
(f) Beneficial Ownership
Limitations on Exercises. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of
any portion of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to the terms and
conditions of this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving
effect to such exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99%
(the “Maximum Percentage”) of the number of Common Shares outstanding immediately after giving effect to such exercise.
For purposes of the foregoing sentence, the aggregate number of Common Shares beneficially owned by the Holder and the other Attribution
Parties shall include the number of Common Shares held by the Holder and all other Attribution Parties plus the number of Common Shares
issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude the number
of Common Shares which would be issuable upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by
the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including
the Series A Warrants) and Pre-funded Warrants beneficially owned by the Holder or any other Attribution Party subject to a limitation
on conversion or exercise analogous to the limitation contained in this Section 1(f). For purposes of this Section 1(f), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”).
For purposes of this Warrant, in determining the number of outstanding Common Shares the Holder may acquire upon the exercise of this
Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding Common Shares as reflected in (x) the
Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing
with the Securities and Exchange Commission (the “SEC”), as the case may be, (y) a more recent public announcement
by the Company or (3) any other written notice by the Company or the Transfer Agent setting forth the number of Common Shares outstanding
(the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when
the actual number of outstanding Common Shares is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder
in writing of the number of Common Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s
beneficial ownership, as determined pursuant to this Section 1(f), to exceed the Maximum Percentage, the Holder must notify the Company
of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is
reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder
any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder,
the Company shall within one (1) Trading Day confirm orally and in writing or by electronic mail to the Holder the number of Common Shares
then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or exercise
of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported
Outstanding Share Number was reported. In the event that the issuance of Common Shares to the Holder upon exercise of this Warrant results
in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of
the number of outstanding Common Shares (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the
Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess
Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or
to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void,
the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. For purposes of clarity, the Common
Shares issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned
by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No
prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this
paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 1(f) to the extent necessary to correct this paragraph
or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in
this Section 1(f) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation
contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
(g) Insufficient Authorized
Shares. If at any time while this Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved
Common Shares to satisfy its obligation to reserve for issuance upon exercise of this Warrant at least a number of Common Shares equal
to 100% of the number of Common Shares as shall from time to time be necessary to effect the exercise of all of this Warrant then outstanding
without regard to any limitation on exercise included herein and assuming that the Maximum Eligibility Number is being determined based
on a Reset Price equal to $0.065 (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification,
combinations, reverse stock splits or other similar events occurring after the Subscription Date) (the “Required Reserve Amount”
and the failure to have such sufficient number of authorized and unreserved Common Shares, an “Authorized Share Failure”),
then the Company shall immediately take all action necessary to increase the Company’s authorized Common Shares to an amount sufficient
to allow the Company to reserve the Required Reserve Amount for this Warrant then outstanding. Without limiting the generality of the
foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than
sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its shareholders for the approval
of an increase in the number of authorized Common Shares. In connection with such meeting, the Company shall provide each shareholder
with a proxy statement and shall use its best efforts to solicit its shareholders’ approval of such increase in authorized Common
Shares and to cause its board of directors to recommend to the shareholders that they approve such proposal. Notwithstanding the foregoing,
if any such time of an Authorized Share Failure, the Company is able to obtain the approval of holders of a majority of the shares voting
at a general meeting to approve the increase in the number of authorized Common Shares, the Company may satisfy this obligation by obtaining
such approval. In the event that upon any exercise of this Warrant, the Company does not have sufficient authorized shares to deliver
in satisfaction of such exercise, then unless the Holder elects to void such attempted exercise, the Holder may require the Company to
pay to the Holder within three (3) Trading Days of the applicable exercise, cash in an amount equal to the product of (i) the quotient
determined by dividing (x) the number of Warrant Shares that the Company is unable to deliver pursuant to this Section 1(g), by (y) the
total number of Warrant Shares issuable upon exercise of this Warrant (without regard to any limitations or restrictions on exercise of
this Warrant) and (ii) the Black Scholes Value; provided, that (x) references to “the day immediately following the public announcement
of the applicable Fundamental Transaction” in the definition of “Black Scholes Value” shall instead refer to “the
date the Holder exercises this Warrant and the Company cannot deliver the required number of Warrant Shares because of an Authorized Share
Failure” and (y) clause (iii) of the definition of “Black Scholes Value” shall instead refer to “the underlying
price per share used in such calculation shall be the highest Weighted Average Price during the period beginning on the date of the applicable
date of exercise and the date that the Company makes the applicable cash payment.”
2. ADJUSTMENT OF EXERCISE
PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and the number of Warrant Shares shall be adjusted from time to time as follows:
(a) Maximum Eligibility
Number Reset. The Maximum Eligibility Number shall be increased (but not decreased) on the Reset Date to equal the Reset Share Amount.
(i) Notwithstanding the foregoing,
if a Holder requests to exercise this Warrant in whole or in part, on any given date prior to the Reset Date, solely with respect to such
portion of this Warrant being exercised on such applicable date (the “Exercise Date”), (a) such applicable Reset Date
shall be deemed to mean the Exercise Date, (b) such applicable Reset Period shall be deemed to have ended on the Trading Day immediately
prior to the Exercise Date, and (c) the applicable Reset Price and Reset Share Amount for such exercised Warrants shall be calculated
pursuant to this Section 2(a). For the avoidance of doubt, following the calculation of the Reset Price and Reset Share Amount pursuant
to this Section 2(a)(i), the Company’s obligations with regard to such exercised Warrants shall be deemed satisfied and no additional
Reset Price and Reset Share Amount shall apply to such exercised Warrants.
(b) Adjustment Upon Subdivision
or Combination of Common Shares. If the Company at any time on or after the Subscription Date subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its outstanding Common Shares into a greater number of shares, the Exercise
Price in effect immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise) one
or more classes of its outstanding Common Shares into a smaller number of shares, the Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under
this Section 2(b) shall become effective at the close of business on the date the subdivision or combination becomes effective.
(c) Partial Reset.
If less than all of the Registrable Securities have been registered pursuant to the clause (i) of the definition of Reset Date and a Holder
has deemed the condition satisfied as to such Registrable Securities, then the Reset Date shall apply only to such portion of the Registrable
Securities, and the Company’s obligations will continue to apply with regard to the Registrable Securities for which the definition
of Reset Date has not been not satisfied.
3. RIGHTS UPON DISTRIBUTION
OF ASSETS. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets)
to holders of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock
or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of Common Shares acquirable upon complete exercise of
this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum
Percentage) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as
of which the record holders of Common Shares are to be determined for the participation in such Distribution (provided, however,
that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to such extent (and
shall not be entitled to beneficial ownership of such Common Shares as a result of such Distribution (and beneficial ownership) to such
extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times as its right
thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the
Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution
held similarly in abeyance) to the same extent as if there had been no such limitation).
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.
(a) Purchase Rights.
In addition to any adjustments pursuant to Section 2 above, if at any time the Company grants, issues or sells any Options, Convertible
Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Shares
(the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights,
the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Common Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation,
the Maximum Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights,
or, if no such record is taken, the date as of which the record holders of Common Shares are to be determined for the grant, issue or
sale of such Purchase Rights (provided, however, that to the extent that the Holder’s right to participate in any
such Purchase Right would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall
not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial ownership of such Common
Shares as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase Right to such extent shall be held
in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted,
issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if
there had been no such limitation).
(b)
Fundamental Transactions. The Company shall not enter into a Fundamental Transaction unless the Successor Entity assumes in writing
all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this
Section 4(b) pursuant to written agreements in form and substance satisfactory to the Required Holders, including agreements , if so
requested by the Holder, to deliver to each holder of the SPA Warrants in exchange for such SPA Warrants a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Warrant, including, without limitation,
an adjusted exercise price equal to the value for the Common Shares reflected by the terms of such Fundamental Transaction, and exercisable
for a corresponding number of shares of capital stock equivalent to the Common Shares acquirable and receivable upon exercise of this
Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and satisfactory to
the Required Holders, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking
into account the relative value of the Common Shares pursuant to such Fundamental Transaction and the value of such shares of capital
stock, such adjustments to the number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the occurrence or consummation of such Fundamental Transaction). Any security issuable or
potentially issuable to the Holder pursuant to the terms of this Warrant on the consummation of a Fundamental Transaction that was within
the Company’s control to enter into or to avoid shall be registered and freely tradable by the Holder without any restriction or
limitation or the requirement to be subject to any holding period pursuant to any applicable securities laws. No
later than (i) thirty (30) days prior to the occurrence or consummation of any Fundamental Transaction or (ii) if later, the first Trading
Day following the date the Company first becomes aware of the occurrence or potential occurrence of a Fundamental Transaction, the Company
shall deliver written notice thereof via facsimile or electronic mail and overnight courier to the Holder. Upon the occurrence
or consummation of any Fundamental Transaction that was within the Company’s control to enter into or to avoid, it shall be a required
condition to the occurrence or consummation of any such Fundamental Transaction that, the Company and the Successor Entity or Successor
Entities, jointly and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly
and severally succeed to, and be added to the term “Company” under this Warrant (so that from and after the date of such
Fundamental Transaction, each and every provision of this Warrant referring to the “Company” shall refer instead to each
of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Company and the Successor Entity or Successor
Entities, jointly and severally, may exercise every right and power of the Company prior thereto and shall assume all of the obligations
of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity or Successor Entities,
jointly and severally, had been named as the Company in this Warrant, and, solely at the request of the Holder, if the Successor Entity
and/or Successor Entities is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible Market,
shall deliver (in addition to and without limiting any right under this Warrant) to the Holder in exchange for this Warrant a security
of the Successor Entity and/or Successor Entities evidenced by a written instrument substantially similar in form and substance to this
Warrant and exercisable for a corresponding number of shares of capital stock of the Successor Entity and/or Successor Entities (the
“Successor Capital Stock”) equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant
(without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction (such corresponding number
of shares of Successor Capital Stock to be delivered to the Holder shall be equal to the greater of (A) the quotient of (i) the aggregate
dollar value of all consideration (including cash consideration and any consideration other than cash (“Non-Cash Consideration”),
in such Fundamental Transaction, as such values are set forth in any definitive agreement for the Fundamental Transaction that has been
executed at the time of the first public announcement of the Fundamental Transaction or, if no such value is determinable from such definitive
agreement, as determined in accordance with Section 12 with the term “Non-Cash Consideration” being substituted for the term
“Exercise Price”) that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction
or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction, had this Warrant been
exercised immediately prior to such Fundamental Transaction or the record, eligibility or other determination date for the event resulting
in such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant) (the “Aggregate Consideration”)
divided by (ii) the per share Closing Sale Price of such Successor Capital Stock on the Trading Day immediately prior to the consummation
or occurrence of the Fundamental Transaction and (B) the product of (i) the quotient obtained by dividing (x) the Aggregate Consideration,
by (y) the Closing Sale Price of the Common Shares on the Trading Day immediately prior to the consummation or occurrence of the Fundamental
Transaction and (ii) the highest exchange ratio pursuant to which any shareholder of the Company may exchange Common Shares for Successor
Capital Stock) (provided, however, to the extent that the Holder’s right to receive any such shares of publicly traded
common stock (or their equivalent) of the Successor Entity would result in the Holder and its other Attribution Parties exceeding the
Maximum Percentage, if applicable, then the Holder shall not be entitled to receive such shares to such extent (and shall not be entitled
to beneficial ownership of such shares of publicly traded common stock (or their equivalent) of the Successor Entity as a result of such
consideration to such extent) and the portion of such shares shall be held in abeyance for the Holder until such time or times, as its
right thereto would not result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, at which time or times
the Holder shall be delivered such shares to the extent as if there had been no such limitation), and such security shall be satisfactory
to the Holder, and with an identical exercise price to the Exercise Price hereunder (such adjustments to the number of shares of capital
stock and such exercise price being for the purpose of protecting after the consummation or occurrence of such Fundamental Transaction
the economic value of this Warrant that was in effect immediately prior to the consummation or occurrence of such Fundamental Transaction,
as elected by the Holder solely at its option). Upon occurrence or consummation of the Fundamental Transaction that
was within the Company’s control to enter into or to avoid, and it shall be a required condition to the occurrence or consummation
of such Fundamental Transaction that, the Company and the Successor Entity or Successor Entities shall deliver to the Holder confirmation
that there shall be issued upon exercise of this Warrant at any time after the occurrence or consummation of the Fundamental Transaction,
as elected by the Holder solely at its option, Common Shares, Successor Capital Stock or, in lieu of the Common Shares or Successor Capital
Stock (or other securities, cash, assets or other property purchasable upon the exercise of this Warrant prior to such Fundamental Transaction),
such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription
rights), which for purposes of clarification may continue to be Common Shares, if any, that the Holder would have been entitled to receive
upon the happening of such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in
such Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction or the record, eligibility
or other determination date for the event resulting in such Fundamental Transaction (without regard to any limitations on the exercise
of this Warrant), as adjusted in accordance with the provisions of this Warrant. In addition to and not in substitution for any other
rights hereunder, prior to the occurrence or consummation of any Fundamental Transaction that was
within the Company’s control to enter into or to avoid, pursuant to which holders of Common Shares are entitled to receive
securities, cash, assets or other property with respect to or in exchange for Common Shares (a “Corporate Event”),
the Company shall make appropriate provision to ensure that, and any applicable Successor Entity or Successor Entities shall ensure that,
and it shall be a required condition to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have
the right to receive upon exercise of this Warrant at any time after the occurrence or consummation of the Corporate Event, Common Shares
or Successor Capital Stock or, if so elected by the Holder, in lieu of the Common Shares (or other securities, cash, assets or other
property) purchasable upon the exercise of this Warrant prior to such Corporate Event (but not in lieu of such items still issuable under
Sections 3 and 4(a), which shall continue to be receivable on the Common Shares or on the such shares of stock, securities, cash, assets
or any other property otherwise receivable with respect to or in exchange for Common Shares), such shares of stock, securities, cash,
assets or any other property whatsoever (including warrants or other purchase or subscription rights and any Common Shares) which the
Holder would have been entitled to receive upon the occurrence or consummation of such Corporate Event or the record, eligibility or
other determination date for the event resulting in such Corporate Event, had this Warrant been exercised immediately prior to such Corporate
Event or the record, eligibility or other determination date for the event resulting in such Corporate Event (without regard to any limitations
on exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory
to the Holder. The provisions of this Section 4(b) shall apply similarly and equally to successive Fundamental Transactions and Corporate
Events.
5. NON-CIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Amended and Restated Articles of Association or
Bylaws, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and
will at all times in good faith carry out all of the provisions of this Warrant and take all action as may be required to protect the
rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common
Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Common Shares upon the exercise
of this Warrant, and (iii) shall, so long as any of the SPA Warrants are outstanding, take all action necessary to reserve and keep available
out of its authorized and unissued Common Shares, solely for the purpose of effecting the exercise of the SPA Warrants, 100% of the number
of Common Shares as shall from time to time be necessary to effect the exercise of the SPA Warrants then outstanding (without regard to
any limitations on exercise and assuming that the Maximum Eligibility Number is being determined based on a Reset Price equal to $0.065
(as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits
or other similar events occurring after the Subscription Date)).
6. WARRANT HOLDER NOT DEEMED
A SHAREHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a holder of
this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder
of this Warrant, any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any corporate action
(whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice
of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such
Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed
as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a shareholder
of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the
Company shall provide the Holder with copies of the same notices and other information given to the shareholders of the Company generally,
contemporaneously with the giving thereof to the shareholders.
7. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant.
If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may request, representing
the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares
then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right
to purchase the number of Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new
Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares
then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is
designated by the Holder at the time of such surrender; provided, however, that no SPA Warrants for fractional Warrant Shares
shall be given.
(d) Issuance of New Warrants.
Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor
with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying
this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by
the Holder which, when added to the number of Common Shares underlying the other new Warrants issued in connection with such issuance,
does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face
of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.
8. NOTICES. Whenever
notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section
9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant
to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality
of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Exercise Price, setting
forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on
which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Shares, (B) with
respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or
other property to holders of Common Shares or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution
or liquidation; provided in each case that such information shall be made known to the public prior to or in conjunction with such
notice being provided to the Holder. It is expressly understood and agreed that the time of exercise specified by the Holder in each Exercise
Notice shall be definitive and may not be disputed or challenged by the Company.
9. AMENDMENT AND WAIVER.
Except as otherwise provided herein, the provisions of this Warrant may be amended or waived and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of
the Holder.
10. GOVERNING LAW; JURISDICTION;
JURY TRIAL. This Warrant shall be governed by and 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 New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. The Company hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to the Company at the address set forth in Section 9(f) of the Securities Purchase Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate
to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the
Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment
or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
11. CONSTRUCTION; HEADINGS.
This Warrant shall be deemed to be jointly drafted by the Company and all the Buyers and shall not be construed against any Person as
the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation
of, this Warrant.
12. DISPUTE RESOLUTION.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company
shall submit the disputed determinations or arithmetic calculations via facsimile or electronic mail within two (2) Business Days of receipt
of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder and the Company are unable to agree
upon such determination or calculation of the Exercise Price or the Warrant Shares within three (3) Business Days of such disputed determination
or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) Business Days submit via facsimile or
electronic mail (a) the disputed determination of the Exercise Price to an independent, reputable investment bank selected by the Company
and approved by the Holder or (b) the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside
accountant. The Company shall cause at its expense the investment bank or the accountant, as the case may be, to perform the determinations
or calculations and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives the
disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation, as the case
may be, shall be binding upon all parties absent demonstrable error.
13. REMEDIES, OTHER OBLIGATIONS,
BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available
under this Warrant and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive
relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with
the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach
or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to an injunction restraining
any breach, without the necessity of showing economic loss and without any bond or other security being required.
14. TRANSFER. This Warrant
and the Warrant Shares may be offered for sale, sold, transferred, pledged or assigned without the consent of the Company, except as may
otherwise be required by Section 2(f) of the Securities Purchase Agreement.
15. SEVERABILITY. If
any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
16. DISCLOSURE. Upon
receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith determined
that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries
(as defined in the Securities Purchase Agreement), the Company shall contemporaneously with any such receipt or delivery publicly disclose
such material, nonpublic information on a Report of Foreign Private Issuer on Form 6-K or otherwise. In the event that the Company believes
that a notice contains material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to the
Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume
that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.
17. CERTAIN DEFINITIONS.
For purposes of this Warrant, the following terms shall have the following meanings:
(a) “1933 Act”
means the Securities Act of 1933, as amended.
(b) “Affiliate”
shall have the meaning ascribed to such term in Rule 405 of the 1933 Act.
(c) Intentionally omitted.
(d) “Attribution
Parties” means, collectively, the following Persons: (i) any investment vehicle, including, any funds, feeder funds or managed
accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment
manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any
Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons
whose beneficial ownership of the Common Shares would or could be aggregated with the Holder’s and the other Attribution Parties
for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all
other Attribution Parties to the Maximum Percentage.
(e) “Black Scholes
Value” means the value of this Warrant calculated using the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg determined as of the day immediately following the public announcement of the applicable Fundamental Transaction,
or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, for pricing purposes
and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this
Warrant as of such date of request, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from
the HVT function on Bloomberg as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction,
or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, (iii) the underlying
price per share used in such calculation shall be the greater of (x) the highest Weighted Average Price of the Common Shares during the
period beginning on the Trading Day prior to the execution of definitive documentation relating to the applicable Fundamental Transaction
and ending on (A) the Trading Day immediately following the public announcement of such Fundamental Transaction, if the applicable Fundamental
Transaction is publicly announced or (B) the Trading Day immediately following the consummation of the applicable Fundamental Transaction
if the applicable Fundamental Transaction is not publicly announced and (y) the sum of the price per share being offered in cash, if any,
plus the value of any non-cash consideration, if any, being offered in the Fundamental Transaction, (iv) a zero cost of borrow and (v)
a 360 day annualization factor.
(f) “Bloomberg”
means Bloomberg Financial Markets.
(g) “Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed.
(h) “Closing Bid
Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and last
closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins
to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then
the last bid price or the last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg,
or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of
such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported on the Pink Open Market. If the Closing Bid Price or the Closing Sale
Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale
Price, as the case may be, of such security on such date shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved
pursuant to Section 12. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction during the applicable calculation period.
(i) “Closing Date”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(j) “Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for Common Shares.
(k) Intentionally omitted.
(l) “Eligible Market”
means the Principal Market, the NYSE American, The Nasdaq Global Select Market, The Nasdaq Global Market, The New York Stock Exchange,
Inc., the OTC QB or the OTC QX.
(m) Intentionally omitted.
(n) “Expiration Date”
means the date sixty-six (66) months after the Stockholder Approval (as defined in the Securities Purchase Agreement) is obtained or,
if such date falls on a day other than a Business Day or on which trading does not take place on the Principal Market (a “Holiday”),
the next day that is not a Holiday.
(o) Reserved.
(p) Reserved.
(q) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation)
another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or
assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more
Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common
Shares be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders
of more than either (x) 50% of the outstanding Common Shares, (y) 50% of the outstanding Common Shares calculated as if any Common Shares
held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or
exchange offer were not outstanding; or (z) such number of Common Shares such that all Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined
in Rule 13d-3 under the 1934 Act) of more than 50% of the outstanding Common Shares, or (iv) consummate a stock purchase agreement or
other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) more than 50% of
the outstanding Common Shares, (y) more than 50% of the outstanding Common Shares calculated as if any Common Shares held by all the
Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other
business combination were not outstanding; or (z) such number of Common Shares such that the Subject Entities become collectively the
beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of more than 50% of the outstanding Common Shares, or (v) reorganize,
recapitalize or reclassify its Common Shares, (B) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates
or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to
be or become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through
acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding Common Shares, merger, consolidation,
business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification
or otherwise in any manner whatsoever, of either (x) more than 50% of the aggregate ordinary voting power represented by issued and outstanding
Common Shares, (y) more than 50% of the aggregate ordinary voting power represented by issued and outstanding Common Shares not held
by all such Subject Entities as of the Subscription Date calculated as if any Common Shares held by all such Subject Entities were not
outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding Common Shares or other
equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction
requiring other shareholders of the Company to surrender their Common Shares without approval of the shareholders of the Company or (C)
directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of
or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this
definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the
terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective
or inconsistent with the intended treatment of such instrument or transaction.
(r) “Group” means a “group”
as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(s) “Maximum Eligibility
Number” means initially zero (0) and such number shall be increased (but not decreased) on the Reset Date in accordance with
Section 2(a), subject to any exercise pursuant to Section 2(c).
(t) Intentionally omitted.
(u) “Options”
means any rights, warrants or options to subscribe for or purchase (i) Common Shares or (ii) Convertible Securities.
(v) “Common Shares”
means (i) the Company’s Common Shares, par value $0.0001 per share, and (ii) any share capital into which such Common Shares shall
have been changed or any share capital resulting from a reclassification, reorganization or reclassification of such Common Shares.
(w) “Parent Entity”
of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose common capital or
equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Required Holders, any other market, exchange
or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Required Holders
or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation
of the Fundamental Transaction.
(x) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency thereof.
(y) “Pre-funded Warrants”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(z) “Principal Market”
means The Nasdaq Capital Market.
(aa) “Public Information
Failure” shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(bb) “Purchase Price”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(cc) “Purchased Shares”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(dd) “Registrable
Securities” shall have the meaning ascribed to such term in the Registration Rights Agreement.
(ee) “Registration
Rights Agreement” means that certain Registration Rights Agreement dated as of the Subscription Date by and among the Company
and the Buyers.
(ff) “Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale by the Buyers of the Registrable Securities (as defined in the Registration Rights Agreement).
(gg) “Required Holders”
means the holders of the SPA Warrants representing at least a majority of the Common Shares underlying the SPA Warrants then outstanding.
(hh) “Reset Date”
means the date that is the later of (i) the earlier of (A) the first (1st) Trading Day
after the date on which for ten (10) consecutive Trading Days all Registrable Securities have become and remained registered pursuant
to an effective Registration Statement that is available for the resale of all Registrable Securities, provided, if less than all
Registrable Securities have become registered for resale on the date that a Registration Statement is declared effective, the Holder with
respect to itself only, shall have the right in its sole and absolute discretion to deem such condition satisfied, including with regard
only to the Registrable Securities that have been so registered or (B) the first (1st)
Trading Day after the date on which the Holder, for ten (10) consecutive Trading Days, can sell all Registrable Securities pursuant to
Rule 144 without restriction or limitation and the Company has not had a Public Information Failure, or (ii) the eleventh (11th)
Trading Day after the Stockholder Approval (as defined in the Securities Purchase Agreement) is obtained. In the event either of clauses
(i) or (ii) in the immediately preceding sentence has not occurred, “Reset Date” means the eleventh (11th)
Trading Day after twelve (12) months and thirty (30) Trading Days immediately following the Issuance Date.
(ii) “Reset Period”
means the period commencing on the Reset Period Start Date (as defined below) and ending on the tenth (10th)
Trading Day after the Reset Period Start Date (the reset goes into effect on the eleventh (11th)
Trading Day after the Reset Period Start Date). The “Reset Period Start Date” shall mean the later of (i) the earlier of (A)
the first (1st) Trading Day after a Registration Statement is declared effective, or (B)
the first (1st) Trading Day after the date on which the Holder can sell all Registrable
Securities pursuant to Rule 144 without restriction or limitation, or (ii) the first (1st)
Trading Day after the Stockholder Approval (as defined in the Securities Purchase Agreement) is obtained. In the event either of clauses
(i) or (ii) in the immediately preceding sentence has not occurred, “Reset Period Start Date” means the first (1st)
Trading Day after twelve (12) months and thirty (30) Trading Days immediately following the Issuance Date.
(jj) “Reset Price”
means the greater of (i) 80% of the lowest daily Weighted Average Price of the Common Shares during the Reset Period and (ii) $0.065 (as
adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or
other similar events occurring after the Subscription Date).
(kk) “Reset
Share Amount” means the number of Common Shares equal to the number (if positive) obtained by subtracting (I) the sum of (x)
the number of Purchased Shares purchased by the Holder on the Closing Date pursuant to the Securities Purchase Agreement (as adjusted
for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar
events occurring after the Subscription Date) and (y) the number of Common Shares issuable upon exercise in full of any Pre-funded Warrants
(without regard to any limitation on exercise contained therein) purchased by the Holder on the Closing Date pursuant to the Securities
Purchase Agreement (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations,
reverse stock splits or other similar events occurring after the Subscription Date), from (II) the quotient determined by dividing (x)
the sum of (i) the aggregate Purchase Price paid by the Holder on the Closing Date and (ii) the aggregate of all exercise prices paid
or payable by the Holder upon exercise in full of the Pre-Funded Warrants, by (y) the applicable Reset Price determined as of the Reset
Date.
(ll) Intentionally omitted.
(mm) “Series A Warrants”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(nn) “Standard Settlement
Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Eligible
Market with respect to the Common Shares as in effect on the date of delivery of the applicable Exercise Notice.
(oo) “Subject Entity”
means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(pp) “Successor Entity”
means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by, resulting from or surviving
any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with
which such Fundamental Transaction shall have been entered into.
(qq) Intentionally omitted.
(rr) Intentionally
omitted.
(ss) “Trading Day”
means any day on which the Common Shares are traded on the Principal Market, or, if the Principal Market is not the principal trading
market for the Common Shares on such day, then on the principal securities exchange or securities market on which the Common Shares are
then traded.
(tt) “Weighted Average
Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market
during the period beginning at 9:30:01 a.m., New York time (or such other time as the Principal Market publicly announces is the official
open of trading), and ending at 4:00:00 p.m., New York time (or such other time as the Principal Market publicly announces is the official
close of trading), as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not apply, the
dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30:01 a.m., New York time (or such other time as such market publicly announces is the official open
of trading), and ending at 4:00:00 p.m., New York time (or such other time as such market publicly announces is the official close of
trading), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as
reported on the Pink Open Market. If the Weighted Average Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the
Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute
shall be resolved pursuant to Section 12 with the term “Weighted Average Price” being substituted for the term “Exercise
Price.” All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction during the applicable calculation period.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Company has caused this Warrant to Purchase Common Shares to be duly executed as of the Issuance Date set out above.
SOLIDION TECHNOLOGY, INC. |
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EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS
WARRANT TO PURCHASE COMMON SHARES
SOLIDION TECHNOLOGY, INC.
The undersigned holder hereby
exercises the right to purchase _________________ Common Shares (“Warrant Shares”) of Solidion Technology, Inc., a
Delaware corporation (the “Company”), evidenced by the attached Warrant to Purchase Common Shares (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Exercise Price.
The Holder intends that payment of the Exercise Price shall be made as:
____________ a “Cash
Exercise” with respect to _________________ Warrant Shares; and/or
____________ a “Cashless
Exercise” with respect to _______________ Warrant Shares, resulting in a delivery obligation of the Company to the Holder of
__________ Common Shares representing the applicable Net Number.
2. Payment of Exercise Price.
In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto,
the holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance with the terms of the
Warrant.
3. Delivery of Warrant Shares.
The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Warrant.
Date: _______________ __, ______
________________________
Name of Registered Holder
ACKNOWLEDGMENT
The Company hereby acknowledges
this Exercise Notice and hereby directs Continental Stock & Transfer Company, LLC to issue the above indicated number of Common Shares
in accordance with the Transfer Agent Instructions dated [●], 2024 from the Company and acknowledged and agreed to by Continental
Stock & Transfer Company, LLC.
SOLIDION TECHNOLOGY, INC. |
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Exhibit 4.3
[FORM OF PRE-FUNDED WARRANT]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B)
AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II)
UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
SOLIDION TECHNOLOGY, INC.
Pre-funded
Warrant To Purchase Common Shares
Warrant No.: ________
Number of Common Shares: _____________
Date of Issuance: N/A (“Issuance Date”)
Solidion Technology, Inc., a
Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, [HOLDER], the registered holder hereof or its permitted
assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise
Price (as defined below) then in effect, at any time or times on or after the date hereof until this Warrant is exercised in full ______________
(_____________) fully paid and nonassessable Common Shares, subject to adjustment as
provided herein (the “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant to Purchase
Common Shares (including any Warrants to Purchase Common Shares issued in exchange, transfer or replacement hereof, this “Warrant”),
shall have the meanings set forth in Section 17. This Warrant is one of the Pre-funded Warrants (the “SPA Warrants”)
issued pursuant to Section 1 of that certain Securities Purchase Agreement, dated as of [●], 2024 (the “Subscription Date”),
by and among the Company and the investors (the “Buyers”) party thereto (the “Securities Purchase Agreement”).
Capitalized terms used herein and not otherwise defined shall have the definitions ascribed to such terms in the Securities Purchase Agreement.
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise.
Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)), this Warrant may
be exercised by the Holder at any time or times on or after the Issuance Date, in whole or in part, by (i) delivery of a written notice,
in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise
this Warrant and (ii) (A) payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash by wire transfer of immediately
available funds or (B) by notifying the Company that this Warrant is being exercised pursuant to a Cashless Exercise (as defined in Section
1(d)). The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery
of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original
Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. On or before the first
(1st) Trading Day following the date on which the Company has received the Exercise Notice,
the Company shall transmit by electronic mail an acknowledgment of confirmation of receipt of the Exercise Notice to the Holder and the
Company’s transfer agent (the “Transfer Agent”). On or before the earlier of (i) the second (2nd)
Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period, in each case, following the date on which the
Holder delivers the Exercise Notice to the Company, so long as the Holder delivers the Aggregate Exercise Price (or notice of a Cashless
Exercise) on or prior to the Trading Day following the date on which the Company has received the Exercise Notice (the “Share
Delivery Date”) (provided that if the Aggregate Exercise Price has not been delivered by such date, the Share Delivery Date
shall be one (1) Trading Day after the Aggregate Exercise Price (or notice of a Cashless Exercise) is delivered), the Company shall (X)
provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities
Transfer Program and (A) the Warrant Shares are subject to an effective resale registration statement in favor of the Holder or (B) if
exercised via Cashless Exercise, at a time when Rule 144 would be available for resale of the Warrant Shares by the Holder, credit such
aggregate number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s
balance account with DTC through its Deposit / Withdrawal At Custodian system, or (Y) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program or (A) the Warrant Shares are not subject to an effective resale registration statement
in favor of the Holder and (B) if exercised via Cashless Exercise, at a time when Rule 144 would not be available for resale of the Warrant
Shares by the Holder, deliver to the Holder book entry statements evidencing the Warrant Shares registered in the Company’s share
register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such
exercise. The Company shall be responsible for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the
issuance of Warrant Shares via DTC, if any. Upon delivery of the Exercise Notice, the Holder shall be deemed for all corporate purposes
to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date
such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the book entry statements evidencing such
Warrant Shares, as the case may be. If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the
number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired
upon an exercise, then the Company shall as soon as practicable and in no event later than three (3) Trading Days after any exercise and
at its own expense, issue a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of Warrant Shares
issuable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is
exercised. No fractional Warrant Shares are to be issued upon the exercise of this Warrant, but rather the number of Warrant Shares to
be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes which may be payable with respect to
the issuance and delivery of Warrant Shares upon exercise of this Warrant. The Company’s obligations to issue and deliver Warrant
Shares in accordance with the terms and subject to the conditions hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against
any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination.
(b) Exercise Price.
The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share, was pre-funded to the
Company on or prior to the Issuance Date and, consequently, no additional consideration (other than the nominal exercise price of $0.0001
per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not
be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any
reason whatsoever, including in the event this Warrant shall not have been exercised. The remaining unpaid exercise price per Ordinary
Share under this Warrant shall be $0.0001, subject to adjustment hereunder (the “Exercise Price”).
(c) Company’s Failure
to Timely Deliver Securities. If the Company shall fail to cause its transfer agent to transmit to the Holder on or prior to the Share
Delivery Date, Warrant Shares pursuant to an exercise notice delivered by the Holder and if after such date the Holder is required by
its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common Shares
to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request, (a) pay in cash to the
Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Common
Shares so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver
to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation
was executed, and (b) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares
for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of
Common Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example,
if the Holder purchases Common Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise
of Common Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (a) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit the Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver Common Shares upon the exercise of
this Warrant as required pursuant to the terms hereof.
(d) Cashless Exercise.
While the Pre-funded Warrants are outstanding, the Company will use its reasonable best efforts to maintain the effectiveness of the Registration
Statement. Notwithstanding anything contained herein to the contrary, if the Registration Statement covering the resale of the Warrant
Shares is not available for the resale of such Warrant Shares, the Holder may, in its sole discretion, exercise this Warrant in whole
or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of Common Shares determined according
to the following formula (a “Cashless Exercise”):
Net Number = |
(A x B) - (A x C) |
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For purposes of the foregoing formula:
A |
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the total number of shares with respect to which this Warrant is then being exercised. |
B |
= |
as applicable: (i) the Weighted Average Price of the Common Shares on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Shares on the principal Trading Market as reported by Bloomberg as of the time of the Holder’s execution of the applicable Exercise Notice, if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 1(a) hereof or (iii) the Weighted Average Price of the Common Shares on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day; |
C |
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the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise. |
If Common Shares are issued pursuant to this Section
1(d), the Company hereby acknowledges and agrees that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired
by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally
issued pursuant to the Securities Purchase Agreement. The Company agrees not to take any position contrary to this Section 1(d).
(e) Disputes. In the
case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall
promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 12.
(f) Beneficial Ownership
Limitations on Exercises. Notwithstanding anything to the contrary contained herein, no exercise of any portion of this Warrant shall
be effected, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to the terms and conditions of
this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such
exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the number of Common Shares outstanding immediately after giving effect to such exercise. For purposes of the
foregoing sentence, the aggregate number of Common Shares beneficially owned by the Holder and the other Attribution Parties shall include
the number of Common Shares held by the Holder and all other Attribution Parties plus the number of Common Shares issuable upon exercise
of this Warrant with respect to which the determination of such sentence is being made, but shall exclude the number of Common Shares
which would be issuable upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any
of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the
Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including the Series C Warrants
and the Series D Warrants (each as defined in the Securities Purchase Agreement)) and Pre-funded Warrants beneficially owned by the Holder
or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section
1(f). For purposes of this Section 1(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended (the “1934 Act”). For purposes of this Warrant, in determining the number of outstanding Common
Shares the Holder may acquire upon the exercise of this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number
of outstanding Common Shares as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission (the “SEC”), as
the case may be, (y) a more recent public announcement by the Company or (3) any other written notice by the Company or the Transfer Agent
setting forth the number of Common Shares outstanding (the “Reported Outstanding Share Number”). If the Company receives
an Exercise Notice from the Holder at a time when the actual number of outstanding Common Shares is less than the Reported Outstanding
Share Number, the Company shall (i) notify the Holder in writing of the number of Common Shares then outstanding and, to the extent that
such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f), to exceed
the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise
Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably
practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at
any time, upon the written or oral request of the Holder, the Company shall within one (1) Trading Day confirm orally and in writing or
by electronic mail to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and
any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance
of Common Shares to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially
own, in the aggregate, more than the Maximum Percentage of the number of outstanding Common Shares (as determined under Section 13(d)
of the 1934 Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial
ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled
ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the
issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder
for the Excess Shares. For purposes of clarity, the Common Shares issuable pursuant to the terms of this Warrant in excess of the Maximum
Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule
16a-1(a)(1) of the 1934 Act. No prior inability to exercise this Warrant pursuant to this
paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination
of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 1(f) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective
or inconsistent with the intended beneficial ownership limitation contained in this Section 1(f) or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply
to a successor holder of this Warrant.
(g) Insufficient Authorized
Shares. If at any time while this Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved
Common Shares to satisfy its obligation to reserve for issuance upon exercise of this Warrant at least a number of Common Shares equal
to 100% of the number of Common Shares as shall from time to time be necessary to effect the exercise of all of this Warrant then outstanding
without regard to any limitation on exercise included herein (the “Required Reserve Amount” and the failure to have
such sufficient number of authorized and unreserved Common Shares, an “Authorized Share Failure”), then the Company
shall immediately take all action necessary to increase the Company’s authorized Common Shares to an amount sufficient to allow
the Company to reserve the Required Reserve Amount for this Warrant then outstanding. Without limiting the generality of the foregoing
sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60)
days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its shareholders for the approval of an
increase in the number of authorized Common Shares. In connection with such meeting, the Company shall provide each shareholder with a
proxy statement and shall use its best efforts to solicit its shareholders’ approval of such increase in authorized Common Shares
and to cause its board of directors to recommend to the shareholders that they approve such proposal. Notwithstanding the foregoing, if
any such time of an Authorized Share Failure, the Company is able to obtain the approval of holders of a majority of the shares voting
at a general meeting to approve the increase in the number of authorized Common Shares, the Company may satisfy this obligation by obtaining
such approval. In the event that upon any exercise of this Warrant, the Company does not have sufficient authorized shares to deliver
in satisfaction of such exercise, then unless the Holder elects to void such attempted exercise, the Holder may require the Company to
pay to the Holder within three (3) Trading Days of the applicable exercise, cash in an amount equal to the product of (i) the quotient
determined by dividing (x) the number of Warrant Shares that the Company is unable to deliver pursuant to this Section 1(g), by (y) the
total number of Warrant Shares issuable upon exercise of this Warrant (without regard to any limitations or restrictions on exercise of
this Warrant) and (ii) the Black Scholes Value (as defined in the Series C Warrants); provided, that (x) references to “the day
immediately following the public announcement of the applicable Fundamental Transaction” in the definition of “Black Scholes
Value” shall instead refer to “the date the Holder exercises this Warrant and the Company cannot deliver the required number
of Warrant Shares because of an Authorized Share Failure” and (y) clause (iii) of the definition of “Black Scholes Value”
shall instead refer to “the underlying price per share used in such calculation shall be the highest Weighted Average Price during
the period beginning on the date of the applicable date of exercise and the date that the Company makes the applicable cash payment.”
2. ADJUSTMENT OF EXERCISE
PRICE AND NUMBER OF WARRANT SHARES. If the Company at any time on or after the Subscription Date subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its outstanding Common Shares into a greater number of shares, the Exercise
Price in effect immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise) one
or more classes of its outstanding Common Shares into a smaller number of shares, the Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under
this Section 2 shall become effective at the close of business on the date the subdivision or combination becomes effective.
3. RIGHTS UPON DISTRIBUTION
OF ASSETS. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets)
to holders of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock
or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of Common Shares acquirable upon complete exercise of
this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum
Percentage) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as
of which the record holders of Common Shares are to be determined for the participation in such Distribution (provided, however,
that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to such extent (and
shall not be entitled to beneficial ownership of such Common Shares as a result of such Distribution (and beneficial ownership) to such
extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times as its right
thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the
Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution
held similarly in abeyance) to the same extent as if there had been no such limitation).
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.
(a) Purchase Rights.
If at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities
or other property pro rata to the record holders of any class of Common Shares (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of Common Shares acquirable upon complete exercise of this Warrant (without regard to any limitations
or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately before the date on which
a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record
holders of Common Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that
to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to such extent (and
shall not be entitled to beneficial ownership of such Common Shares as a result of such Purchase Right (and beneficial ownership) to such
extent) and such Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until such time or times as its
right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times
the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent
Purchase Right held similarly in abeyance) to the same extent as if there had been no such limitation).
(b) Fundamental Transactions.
The Company shall not enter into a Fundamental Transaction unless the Successor Entity assumes in writing all of the obligations of the
Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 4(b) pursuant to written
agreements in form and substance satisfactory to the Required Holders, including agreements , if so requested by the Holder, to deliver
to each holder of the SPA Warrants in exchange for such SPA Warrants a security of the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant, including, without limitation, an adjusted exercise price equal to the value
for the Common Shares reflected by the terms of such Fundamental Transaction, and exercisable for a corresponding number of shares of
capital stock equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations
on the exercise of this Warrant) prior to such Fundamental Transaction, and satisfactory to the Required Holders, and with an exercise
price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Common
Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such adjustments to the number of shares
of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the
occurrence or consummation of such Fundamental Transaction). Any security issuable or potentially issuable to the Holder pursuant to the
terms of this Warrant on the consummation of a Fundamental Transaction that was within the Company’s control to enter into or to
avoid shall be registered and freely tradable by the Holder without any restriction or limitation or the requirement to be subject to
any holding period pursuant to any applicable securities laws. No later than (i) thirty (30) days
prior to the occurrence or consummation of any Fundamental Transaction or (ii) if later, the first Trading Day following the date the
Company first becomes aware of the occurrence or potential occurrence of a Fundamental Transaction, the Company shall deliver written
notice thereof via facsimile or electronic mail and overnight courier to the Holder. Upon the occurrence or consummation of any
Fundamental Transaction that was within the Company’s control to enter into or to avoid,
it shall be a required condition to the occurrence or consummation of any such Fundamental Transaction that, the Company and the Successor
Entity or Successor Entities, jointly and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities
to jointly and severally succeed to, and be added to the term “Company” under this Warrant (so that from and after the date
of such Fundamental Transaction, each and every provision of this Warrant referring to the “Company” shall refer instead to
each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Company and the Successor Entity or
Successor Entities, jointly and severally, may exercise every right and power of the Company prior thereto and shall assume all of the
obligations of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity or Successor
Entities, jointly and severally, had been named as the Company in this Warrant, and, solely at the request of the Holder, if the Successor
Entity and/or Successor Entities is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible
Market, shall deliver (in addition to and without limiting any right under this Warrant) to the Holder in exchange for this Warrant a
security of the Successor Entity and/or Successor Entities evidenced by a written instrument substantially similar in form and substance
to this Warrant and exercisable for a corresponding number of shares of capital stock of the Successor Entity and/or Successor Entities
(the “Successor Capital Stock”) equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant
(without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction (such corresponding number of
shares of Successor Capital Stock to be delivered to the Holder shall be equal to the greater of (A) the quotient of (i) the aggregate
dollar value of all consideration (including cash consideration and any consideration other than cash (“Non-Cash Consideration”),
in such Fundamental Transaction, as such values are set forth in any definitive agreement for the Fundamental Transaction that has been
executed at the time of the first public announcement of the Fundamental Transaction or, if no such value is determinable from such definitive
agreement, as determined in accordance with Section 12 with the term “Non-Cash Consideration” being substituted for the term
“Exercise Price”) that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction or
the record, eligibility or other determination date for the event resulting in such Fundamental Transaction, had this Warrant been exercised
immediately prior to such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such
Fundamental Transaction (without regard to any limitations on the exercise of this Warrant) (the “Aggregate Consideration”)
divided by (ii) the per share Closing Sale Price of such Successor Capital Stock on the Trading Day immediately prior to the consummation
or occurrence of the Fundamental Transaction and (B) the product of (i) the quotient obtained by dividing (x) the Aggregate Consideration,
by (y) the Closing Sale Price of the Common Shares on the Trading Day immediately prior to the consummation or occurrence of the Fundamental
Transaction and (ii) the highest exchange ratio pursuant to which any shareholder of the Company may exchange Common Shares for Successor
Capital Stock) (provided, however, to the extent that the Holder’s right to receive any such shares of publicly traded
common stock (or their equivalent) of the Successor Entity would result in the Holder and its other Attribution Parties exceeding the
Maximum Percentage, if applicable, then the Holder shall not be entitled to receive such shares to such extent (and shall not be entitled
to beneficial ownership of such shares of publicly traded common stock (or their equivalent) of the Successor Entity as a result of such
consideration to such extent) and the portion of such shares shall be held in abeyance for the Holder until such time or times, as its
right thereto would not result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, at which time or times
the Holder shall be delivered such shares to the extent as if there had been no such limitation), and such security shall be satisfactory
to the Holder, and with an identical exercise price to the Exercise Price hereunder (such adjustments to the number of shares of capital
stock and such exercise price being for the purpose of protecting after the consummation or occurrence of such Fundamental Transaction
the economic value of this Warrant that was in effect immediately prior to the consummation or occurrence of such Fundamental Transaction,
as elected by the Holder solely at its option). Upon occurrence or consummation of the Fundamental Transaction that
was within the Company’s control to enter into or to avoid, and it shall be a required condition to the occurrence or consummation
of such Fundamental Transaction that, the Company and the Successor Entity or Successor Entities shall deliver to the Holder confirmation
that there shall be issued upon exercise of this Warrant at any time after the occurrence or consummation of the Fundamental Transaction,
as elected by the Holder solely at its option, Common Shares, Successor Capital Stock or, in lieu of the Common Shares or Successor Capital
Stock (or other securities, cash, assets or other property purchasable upon the exercise of this Warrant prior to such Fundamental Transaction),
such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription
rights), which for purposes of clarification may continue to be Common Shares, if any, that the Holder would have been entitled to receive
upon the happening of such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such
Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction or the record, eligibility
or other determination date for the event resulting in such Fundamental Transaction (without regard to any limitations on the exercise
of this Warrant), as adjusted in accordance with the provisions of this Warrant. In addition to and not in substitution for any other
rights hereunder, prior to the occurrence or consummation of any Fundamental Transaction that was
within the Company’s control to enter into or to avoid, pursuant to which holders of Common Shares are entitled to receive
securities, cash, assets or other property with respect to or in exchange for Common Shares (a “Corporate Event”),
the Company shall make appropriate provision to ensure that, and any applicable Successor Entity or Successor Entities shall ensure that,
and it shall be a required condition to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have the
right to receive upon exercise of this Warrant at any time after the occurrence or consummation of the Corporate Event, Common Shares
or Successor Capital Stock or, if so elected by the Holder, in lieu of the Common Shares (or other securities, cash, assets or other property)
purchasable upon the exercise of this Warrant prior to such Corporate Event (but not in lieu of such items still issuable under Sections
3 and 4(a), which shall continue to be receivable on the Common Shares or on the such shares of stock, securities, cash, assets or any
other property otherwise receivable with respect to or in exchange for Common Shares), such shares of stock, securities, cash, assets
or any other property whatsoever (including warrants or other purchase or subscription rights and any Common Shares) which the Holder
would have been entitled to receive upon the occurrence or consummation of such Corporate Event or the record, eligibility or other determination
date for the event resulting in such Corporate Event, had this Warrant been exercised immediately prior to such Corporate Event or the
record, eligibility or other determination date for the event resulting in such Corporate Event (without regard to any limitations on
exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory
to the Holder. The provisions of this Section 4(b) shall apply similarly and equally to successive Fundamental Transactions and Corporate
Events.
5. NON-CIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Amended and Restated Articles of Association or
Bylaws, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and
will at all times in good faith carry out all of the provisions of this Warrant and take all action as may be required to protect the
rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common
Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Common Shares upon the exercise
of this Warrant, and (iii) shall, so long as any of the SPA Warrants are outstanding, take all action necessary to reserve and keep available
out of its authorized and unissued Common Shares, solely for the purpose of effecting the exercise of the SPA Warrants, 100% of the number
of Common Shares as shall from time to time be necessary to effect the exercise of the SPA Warrants then outstanding (without regard to
any limitations on exercise).
6. WARRANT HOLDER NOT DEEMED
A SHAREHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a holder of
this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder
of this Warrant, any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any corporate action
(whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice
of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such
Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed
as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a shareholder
of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the
Company shall provide the Holder with copies of the same notices and other information given to the shareholders of the Company generally,
contemporaneously with the giving thereof to the shareholders.
7. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant.
If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may request, representing
the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares
then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right
to purchase the number of Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new
Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares
then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is
designated by the Holder at the time of such surrender; provided, however, that no SPA Warrants for fractional Warrant Shares
shall be given.
(d) Issuance of New Warrants.
Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor
with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying
this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by
the Holder which, when added to the number of Common Shares underlying the other new Warrants issued in connection with such issuance,
does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face
of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.
8. NOTICES. Whenever
notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section
9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant
to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality
of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Exercise Price, setting
forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on
which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Shares, (B) with
respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or
other property to holders of Common Shares or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution
or liquidation; provided in each case that such information shall be made known to the public prior to or in conjunction with such
notice being provided to the Holder. It is expressly understood and agreed that the time of exercise specified by the Holder in each Exercise
Notice shall be definitive and may not be disputed or challenged by the Company.
9. AMENDMENT AND WAIVER.
Except as otherwise provided herein, the provisions of this Warrant may be amended or waived and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of
the Holder.
10. GOVERNING LAW; JURISDICTION;
JURY TRIAL. This Warrant shall be governed by and 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 New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. The Company hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to the Company at the address set forth in Section 9(f) of the Securities Purchase Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate
to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the
Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment
or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
11. CONSTRUCTION; HEADINGS.
This Warrant shall be deemed to be jointly drafted by the Company and all the Buyers and shall not be construed against any Person as
the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation
of, this Warrant.
12. DISPUTE RESOLUTION.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company
shall submit the disputed determinations or arithmetic calculations via facsimile or electronic mail within two (2) Business Days of receipt
of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder and the Company are unable to agree
upon such determination or calculation of the Exercise Price or the Warrant Shares within three (3) Business Days of such disputed determination
or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) Business Days submit via facsimile or
electronic mail (a) the disputed determination of the Exercise Price to an independent, reputable investment bank selected by the Company
and approved by the Holder or (b) the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside
accountant. The Company shall cause at its expense the investment bank or the accountant, as the case may be, to perform the determinations
or calculations and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives the
disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation, as the case
may be, shall be binding upon all parties absent demonstrable error.
13. REMEDIES, OTHER OBLIGATIONS,
BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available
under this Warrant and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive
relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with
the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach
or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to an injunction restraining
any breach, without the necessity of showing economic loss and without any bond or other security being required.
14. TRANSFER. This Warrant
and the Warrant Shares may be offered for sale, sold, transferred, pledged or assigned without the consent of the Company, except as may
otherwise be required by Section 2(f) of the Securities Purchase Agreement.
15. SEVERABILITY. If
any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
16. DISCLOSURE. Upon
receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith determined
that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries
(as defined in the Securities Purchase Agreement), the Company shall contemporaneously with any such receipt or delivery publicly disclose
such material, nonpublic information on a Report of Foreign Private Issuer on Form 6-K or otherwise. In the event that the Company believes
that a notice contains material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to the
Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume
that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.
17. CERTAIN DEFINITIONS.
For purposes of this Warrant, the following terms shall have the following meanings:
(a) “1933 Act”
means the Securities Act of 1933, as amended.
(b) “Affiliate”
shall have the meaning ascribed to such term in Rule 405 of the 1933 Act.
(a) “Attribution
Parties” means, collectively, the following Persons: (i) any investment vehicle, including, any funds, feeder funds or managed
accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment
manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any
Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons
whose beneficial ownership of the Common Shares would or could be aggregated with the Holder’s and the other Attribution Parties
for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all
other Attribution Parties to the Maximum Percentage.
(b) “Bloomberg”
means Bloomberg Financial Markets.
(c) “Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed.
(d) “Closing Bid
Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and last
closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins
to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then
the last bid price or the last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg,
or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of
such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported on the Pink Open Market. If the Closing Bid Price or the Closing Sale
Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale
Price, as the case may be, of such security on such date shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved
pursuant to Section 12. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction during the applicable calculation period.
(e) “Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for Common Shares.
(f) Intentionally omitted.
(g) “Eligible Market”
means the Principal Market, the NYSE American, The Nasdaq Global Select Market, The Nasdaq Global Market, The New York Stock Exchange,
Inc., the OTC QB or the OTC QX.
(h) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another
Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of
the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities,
or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Shares be subject
to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of more than
either (x) 50% of the outstanding Common Shares, (y) 50% of the outstanding Common Shares calculated as if any Common Shares held by all
Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer
were not outstanding; or (z) such number of Common Shares such that all Subject Entities making or party to, or Affiliated with any Subject
Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of more than 50% of the outstanding Common Shares, or (iv) consummate a stock purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject
Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) more than 50% of the outstanding Common
Shares, (y) more than 50% of the outstanding Common Shares calculated as if any Common Shares held by all the Subject Entities making
or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were
not outstanding; or (z) such number of Common Shares such that the Subject Entities become collectively the beneficial owners (as defined
in Rule 13d-3 under the 1934 Act) of more than 50% of the outstanding Common Shares, or (v) reorganize, recapitalize or reclassify its
Common Shares, (B) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or
more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial
owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in outstanding Common Shares, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever,
of either (x) more than 50% of the aggregate ordinary voting power represented by issued and outstanding Common Shares, (y) more than
50% of the aggregate ordinary voting power represented by issued and outstanding Common Shares not held by all such Subject Entities as
of the Subscription Date calculated as if any Common Shares held by all such Subject Entities were not outstanding, or (z) a percentage
of the aggregate ordinary voting power represented by issued and outstanding Common Shares or other equity securities of the Company sufficient
to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Company
to surrender their Common Shares without approval of the shareholders of the Company or (C) directly or indirectly, including through
Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument
or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary
to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such
instrument or transaction.
(i) “Group” means a “group”
as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(j) “Options”
means any rights, warrants or options to subscribe for or purchase (i) Common Shares or (ii) Convertible Securities.
(k) “Common Shares”
means (i) the Company’s Common Shares, par value $0.0001 per share, and (ii) any share capital into which such Common Shares shall
have been changed or any share capital resulting from a reclassification, reorganization or reclassification of such Common Shares.
(l) “Parent Entity”
of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose common capital or
equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Required Holders, any other market, exchange
or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Required Holders
or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation
of the Fundamental Transaction.
(m) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency thereof.
(n) “Pre-funded Warrants”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(o) “Principal Market”
means The Nasdaq Capital Market.
(p) “Registration
Rights Agreement” means that certain Registration Rights Agreement dated as of the Subscription Date by and among the Company
and the Buyers.
(q) “Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale by the Buyers of the Registrable Securities (as defined in the Registration Rights Agreement).
(r) “Required Holders”
means the holders of the SPA Warrants representing at least a majority of the Common Shares underlying the SPA Warrants then outstanding.
(s) “Standard Settlement
Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Eligible
Market with respect to the Common Shares as in effect on the date of delivery of the applicable Exercise Notice.
(t) “Subject Entity”
means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(u) “Successor Entity”
means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by, resulting from or surviving
any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with
which such Fundamental Transaction shall have been entered into.
(v) “Trading Day”
means any day on which the Common Shares are traded on the Principal Market, or, if the Principal Market is not the principal trading
market for the Common Shares on such day, then on the principal securities exchange or securities market on which the Common Shares are
then traded.
(w) “Weighted Average
Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market
during the period beginning at 9:30:01 a.m., New York time (or such other time as the Principal Market publicly announces is the official
open of trading), and ending at 4:00:00 p.m., New York time (or such other time as the Principal Market publicly announces is the official
close of trading), as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not apply, the
dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30:01 a.m., New York time (or such other time as such market publicly announces is the official open
of trading), and ending at 4:00:00 p.m., New York time (or such other time as such market publicly announces is the official close of
trading), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as
reported on the Pink Open Market. If the Weighted Average Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the
Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute
shall be resolved pursuant to Section 12 with the term “Weighted Average Price” being substituted for the term “Exercise
Price.” All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction during the applicable calculation period.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Company has caused this Warrant to Purchase Common Shares to be duly executed as of the Issuance Date set out above.
SOLIDION TECHNOLOGY, INC. |
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EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS
WARRANT TO PURCHASE COMMON SHARES
SOLIDION TECHNOLOGY, INC.
The undersigned holder hereby
exercises the right to purchase _________________ Common Shares (“Warrant Shares”) of Solidion Technology, Inc., a
Delaware corporation (the “Company”), evidenced by the attached Warrant to Purchase Common Shares (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Exercise Price.
The Holder intends that payment of the Exercise Price shall be made as:
____________ a “Cash
Exercise” with respect to _________________ Warrant Shares; and/or
____________ a “Cashless
Exercise” with respect to _______________ Warrant Shares, resulting in a delivery obligation of the Company to the Holder of
__________ Common Shares representing the applicable Net Number.
2. Payment of Exercise Price.
In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto,
the holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance with the terms of the
Warrant.
3. Delivery of Warrant Shares.
The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Warrant.
Date: _______________ __, ______
Name of Registered Holder
ACKNOWLEDGMENT
The Company hereby acknowledges
this Exercise Notice and hereby directs Continental Stock Transfer & Trust to issue the above indicated number of Common Shares in
accordance with the Transfer Agent Instructions dated [●], 2024 from the Company and acknowledged and agreed to by Continental Stock
Transfer & Trust.
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15
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT
(this “Agreement”), dated as of [●], 2024, by and among Solidion Technology Inc., a Delaware corporation, with
headquarters located at 13355 Noel Rd, Suite 1100, Dallas, Texas (the “Company”), and the investors listed on the Schedule
of Buyers attached hereto (individually, a “Buyer” and collectively, the “Buyers”).
WHEREAS:
A. The Company and each Buyer
is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of
the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation D (“Regulation D”)
as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act.
B. Each Buyer wishes to purchase
from the Company, and the Company wishes to issue and sell to each Buyer, upon the terms and conditions stated in this Agreement, an aggregate
number of units consisting of: (i) the aggregate number of the Company’s shares of common stock, par value $0.0001 per share (the
“Common Shares”), set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers (which shall collectively
be referred to herein as the “Purchased Shares”) and/or pre-funded warrants, in substantially the form attached hereto
as Exhibit A (the “Pre-Funded Warrants”), to purchase that number of Common Shares set forth opposite such Buyer’s
name in column (5) on the Schedule of Buyers (the Common Shares underlying the Pre-Funded Warrants, collectively, the “Pre-Funded
Warrant Shares”), at an exercise price equal to $0.0001 per Pre-Funded Warrant Share; which aggregate amount for all Buyers
together of Purchased Shares and Pre-Funded Warrant Shares shall be Common Shares, (ii) warrants, in substantially the form attached hereto
as Exhibit B (the “Series C Warrants”), to purchase initially up to that number of Common Shares set forth opposite
such Buyer’s name in column (4) on the Schedule of Buyers (the Common Shares underlying the Series C Warrants, collectively, the
“Series C Warrant Shares”) at an exercise price equal to $0.3274 per each whole Series C Warrant Share and (iii) warrants,
in substantially the form attached hereto as Exhibit C (the “Series D Warrants” and, together with the Pre-Funded
Warrants and Series C Warrants, the “Warrants”) to purchase initially up to that number of Common Shares set forth
therein and exercisable in accordance with its terms and conditions (the Common Shares underlying the Series D Warrants, collectively,
the “Series D Warrant Shares” and, together with Pre-Funded Warrant Shares and the Series C Warrant Shares, the “Warrant
Shares”) at an exercise price equal to $0.0001 per Series D Warrant Share. The Purchased Shares, the Warrants and the Warrant
Shares collectively are referred to herein as the “Securities.”
C. Contemporaneously with
the execution and delivery of this Agreement, the parties hereto are executing and delivering a Registration Rights Agreement, in substantially
the form attached hereto as Exhibit D (the “Registration Rights Agreement”), pursuant to which the Company has
agreed to provide certain registration rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement)
under the 1933 Act and the rules and regulations promulgated thereunder, and applicable state securities laws.
D. Contemporaneously with
the execution and delivery of this Agreement, and as a material inducement for the Buyers to enter into this Agreement and to consummate
the transactions, certain stockholders of the Company, representing more than 50.1% of the issued and outstanding Common Shares, will
enter into that certain voting agreement, dated as of the date hereof, substantially in the form attached hereto as Exhibit E (the
“Voting Agreement”)
NOW, THEREFORE, in
consideration of the foregoing and of the agreements and covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and each Buyer hereby agree as follows:
1. PURCHASE AND SALE OF
SECURITIES.
(a) Purchase of Purchased
Shares and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall
issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined
below), (w) the number of Purchased Shares as is set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers, along
with (x) Series C Warrants to acquire up to that number of Series C Warrant Shares as is set forth opposite such Buyer’s name in
column (4) on the Schedule of Buyers, (y) Series D Warrants to acquire Series D Warrant Shares in accordance with its terms and conditions
and (z) Pre-Funded Warrants to acquire up to that number of Pre-Funded Warrant Shares as is set forth opposite such Buyer’s name
in column (5) on the Schedule of Buyers (the “Closing”). Notwithstanding anything herein to the contrary, in no event
will any Buyer’s voting rights in the Company or ownership of the Company’s issued share capital exceed 4.99% of the number
of Common Shares outstanding immediately after giving effect to the issuance of the Securities on the Closing Date, and such Buyer shall
purchase Pre-Funded Warrants in lieu of the Purchased Shares, as set forth opposite such Buyer’s name in column (3) on the Schedule
of Buyers.
(b) Closing. The date
and time of the Closing (the “Closing Date”) shall take place remotely via the exchange of documents and signatures,
on the date hereof (or such other date and time as is mutually agreed to by the Company and each Buyer) after notification of satisfaction
(or waiver) of the conditions to the Closing set forth in Sections 6 and 7 below.
(c) Purchase Price. The
purchase price for the Purchased Shares and the related Warrants to be purchased by each Buyer at the Closing shall be the amount set
forth opposite such Buyer’s name in column (6) of the Schedule of Buyers (the “Purchase Price”), which shall
be equal to (i) the amount of $0.3274 per Purchased Share and related Warrants and (ii) the amount of $0 per Pre-Funded Warrant and related
Warrants.
(d)
Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of the Lead Investor
(as defined in the Schedule of Buyers), any amounts withheld pursuant to Section 4(g)) to the Company for the Purchased Shares and the
Warrants to be issued and sold to such Buyer at the Closing by wire transfer of immediately available funds in accordance with the Company’s
written wire instructions and (ii) the Company shall deliver to each Buyer (w) book entry statements, evidencing the number of Purchased
Shares such Buyer is purchasing as is set forth opposite such Buyer’s name in column (3) of the Schedule of Buyers, (x) a Series
C Warrant initially exercisable for such number of Series C Warrant Shares as is set forth opposite such Buyer’s name in column
(4) of the Schedule of Buyers, (y) a Series D Warrant pursuant to which such Buyer shall have the right to purchase Series D Warrant Shares
in accordance with its terms and conditions, and (z) a Pre-Funded Warrant pursuant to which such Buyer shall have the right to acquire
such number of Pre-Funded Warrant Shares as is set forth opposite such Buyer’s name in column (5) of the Schedule of Buyers, in
each case duly executed on behalf of the Company and registered in the name of such Buyer or its designee.
2. BUYER’S REPRESENTATIONS
AND WARRANTIES. Each Buyer, severally and not jointly, represents and warrants with respect to only itself to the Company that:
(a) No Public Sale or Distribution.
Such Buyer is (i) acquiring the Purchased Shares and the Warrants and (ii) upon exercise of the Warrants (other than pursuant to a Cashless
Exercise (as defined in the Warrants)) will acquire the Warrant Shares issuable upon exercise of the Warrants, for its own account and
not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered
or exempted under the 1933 Act; provided, however, that by making the representations herein, such Buyer does not agree
to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption under the 1933 Act. Such Buyer is acquiring the Securities hereunder
in the ordinary course of its business. Such Buyer does not presently have any agreement or understanding, directly or indirectly, with
any Person to distribute any of the Securities. As used herein, “Person” means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or
any department or agency thereof.
(b) Accredited Investor Status.
Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D.
(c) Reliance on Exemptions.
Such Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements
of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Buyer’s
compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order
to determine the availability of such exemptions and the eligibility of such Buyer to acquire the Securities.
(d) Information. Such
Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and its advisors, if
any, have been afforded the opportunity to ask questions of the Company regarding its business and affairs. Notwithstanding the foregoing,
other than knowledge of the transactions contemplated by this Agreement, the Company has not disclosed to the Buyer any material nonpublic
information regarding the Company or otherwise and will not disclose such information unless such information is disclosed to the public
prior to or promptly following such disclosure to the Buyer. Neither such inquiries nor any other due diligence investigations conducted
by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely on the Company’s
representations and warranties contained herein. Such Buyer understands that its investment in the Securities involves a high degree of
risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision
with respect to its acquisition of the Securities.
(e) No Governmental Review.
Such Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made
any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities
passed upon or endorsed the merits of the offering of the Securities.
(f) Transfer or Resale.
Such Buyer understands that except as provided in the Registration Rights Agreement: (i) the Securities have not been and are not being
registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder, (B) such Buyer shall have delivered to the Company an opinion of counsel, in a generally acceptable
form, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption
from such registration, or (C) such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or
transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act, as amended, (or a successor rule thereto) (collectively,
“Rule 144”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms
of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person
through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other
Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to comply with the terms
and conditions of any exemption thereunder. Notwithstanding the foregoing, the Securities may be pledged in connection with a bona fide
margin account or other loan or financing arrangement secured by the Securities and such pledge of Securities shall not be deemed to be
a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to provide
the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction
Document (as defined in Section 3(b)), including, without limitation, this Section 2(f).
(g) Legends. Such Buyer
understands that the certificates or other instruments representing the Purchased Shares and the Warrants and, until such time as the
resale of the Purchased Shares and the Warrant Shares have been registered under the 1933 Act as contemplated by the Registration Rights
Agreement, the stock certificates representing the Warrant Shares, except as set forth below, shall bear a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against transfer of such stock certificates):
[NEITHER THE ISSUANCE AND SALE
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN][THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL SELECTED BY THE HOLDER,
IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
The legend set forth above shall be removed and
the Company shall issue a certificate or book entry statement for the without such legend to the holder of the Securities upon which it
is stamped or issue to such holder by electronic delivery at the applicable balance account at The Depository Trust Company (“DTC”),
if (i) such Securities are registered for resale under the 1933 Act, (ii) in connection with a sale, assignment or other transfer, such
holder provides the Company with an opinion of counsel, in a generally acceptable form, to the effect that such sale, assignment or transfer
of the Securities may be made without registration under the applicable requirements of the 1933 Act, or (iii) the Securities can be sold,
assigned or transferred pursuant to Rule 144 or Rule 144A. The Company shall be responsible for the fees of its transfer agent and all
DTC fees associated with such issuance. If the Company shall fail to cause the transfer agent to issue to the holder of the Securities
within two (2) Trading Days (as defined in the Warrants) after the occurrence of any of (i) through (iii) above , a certificate without
such legend to such holder or to issue such Securities to such holder by electronic delivery at the applicable balance account at DTC,
and if on or after such Trading Day the holder purchases (in an open market transaction or otherwise) Common Shares to deliver in satisfaction
of a sale by the holder of such Securities that the holder anticipated receiving without legend from the Company, then the Company shall
promptly honor its obligation to deliver to the holder such unlegended Securities as provided above and pay cash to the holder in the
amount if any, by which (x) the holder’s total purchase price (including brokerage commissions, if any) for the Common Shares so
purchased, exceeds (y) the amount obtained by multiplying (1) such number of Common Shares, times (2) the price at which the sell order
giving rise to such purchase obligation was executed, The Company shall be responsible for the fees of its transfer agent and all DTC
fees associated with such issuance.
(h) Validity; Enforcement.
This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered on behalf of such Buyer
and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with their respective
terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights
and remedies.
(i) No Conflicts. The
execution, delivery and performance by such Buyer of this Agreement and the Registration Rights Agreement and the consummation by such
Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such Buyer
or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
such Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state
securities laws) applicable to such Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or
violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability
of such Buyer to perform its obligations hereunder.
3. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY.
The Company represents and warrants
to each of the Buyers that, as of the date hereof and as of the Closing Date:
(a)
Organization and Qualification. Each of the Company and each of its “Subsidiaries” (which for purposes of this
Agreement means any entity in which the Company, directly or indirectly, owns a controlling interest in any of the capital stock or holds
an equity or similar interest) are entities duly organized and validly existing and in good standing under the laws of the jurisdiction
in which they are formed, and have the requisite power and authorization to own their properties and to carry on their business as now
being conducted and as presently proposed to be conducted. Each of the Company and each of its Subsidiaries is duly qualified as a foreign
entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted
by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably
be expected to have a Material Adverse Effect. As used in this Agreement, “Material Adverse Effect” means any material
adverse effect on the business, properties, assets, liabilities, operations, results of operations, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries, individually or taken as a whole, or on the transactions contemplated hereby or on the
other Transaction Documents or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority
or ability of the Company to perform any of its obligations under any of the Transaction Documents (as defined below). The Company has
no Subsidiaries except as set forth in Schedule 3(a). The outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company or another Subsidiary free and
clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital stock or ownership interests in the Subsidiaries are outstanding.
(b) Authorization; Enforcement;
Validity. The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement,
the Warrants, the Registration Rights Agreement, the Lock-Up Agreements (as defined in Section 7(x)), the Irrevocable Transfer Agent Instructions
(as defined in Section 5(b)), the Voting Agreement, and each of the other agreements entered into by the parties hereto in connection
with the transactions contemplated by this Agreement (collectively, the “Transaction Documents”) and to issue the Securities
in accordance with the terms hereof and thereof. The execution and delivery of this Agreement and the other Transaction Documents by the
Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance
of the Purchased Shares and the Warrants and the reservation for issuance and the issuance of the Warrant Shares issuable upon exercise
of the Warrants have been duly authorized by the Company’s Board of Directors and (other than the filing with the SEC of one or
more Registration Statements (as defined in the Registration Rights Agreement) in accordance with the requirements of the Registration
Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies and submission of a
listing application with Nasdaq if applicable) no further filing, consent or authorization is required by the Company, its Board of Directors
or its shareholders. This Agreement and the other Transaction Documents have been duly executed and delivered by the Company, and constitute
the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(c) Issuance of Securities.
The issuance of the Securities has been duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents,
the Purchased Shares and the Warrants shall be validly issued and free from all preemptive or similar rights (except for those which have
been validly waived prior to the date hereof), taxes, liens and charges and other encumbrances with respect to the issue thereof and the
Purchased Shares will be fully paid and nonassessable with the holders being entitled to all rights accorded to a holder of Common Shares.
As of the Closing Date, a number of Common Shares shall have been duly authorized and reserved for issuance which equals at least the
sum of (i) the maximum number of Common Shares issuable upon exercise of the Series C Warrants, (ii) the maximum number of Common Shares
issuable upon exercise of the Pre-Funded Warrants and (iii) the maximum number of Common Shares issuable upon exercise of the Series D
Warrants, in each case, without giving effect to any limitation on exercise set forth therein and, with respect to the Series D Warrants,
assuming that the Maximum Eligibility Number (as defined in the Series D Warrants) is determined based on a Reset Price (as defined in
the Series D Warrants) equal to $0.15 (as adjusted for share splits, share dividends, recapitalizations, reorganizations, reclassification,
combinations, reverse stock splits or other similar events occurring after the date hereof) (the “Required Reserved Amount”).
Upon exercise of the Warrants in accordance with the Warrants and receipt of the exercise price thereunder, the Warrant Shares when issued
will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances
with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Shares. Assuming the accuracy
of each of the representations and warranties set forth in Section 2 of this Agreement, the offer and issuance by the Company of the Securities
is exempt from registration under the 1933 Act.
(d) No Conflicts. The
execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of the Purchased Shares and the Warrants and reservation
for issuance and issuance of the Warrant Shares) will not (i) result in a violation of the Amended and Restated Certificate of Incorporation
(as defined below) or other organizational documents of the Company or any of its Subsidiaries, any capital stock of the Company or any
of its Subsidiaries or the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any
of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign,
federal and state securities laws and regulations and the rules and regulations of The Nasdaq Global Market (the “Principal Market”)
and including all applicable foreign, federal, state laws, rules and regulations) applicable to the Company or any of its Subsidiaries
or by which any property or asset of the Company or any of its Subsidiaries is bound or affected except, with respect to clauses (ii)
and (iii) above, for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually
or in the aggregate, have a Material Adverse Effect.
(e) Consents. The Company
is not required to obtain any consent from, authorization or order of, or make any filing or registration with (other than the filing
with the SEC of one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement, a Form D
with the SEC and any other filings as may be required by any state securities agencies and the filing of required notices and/or applications
to the Principal Market for the issuance and sale of the securities hereby), any court, governmental agency or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction
Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations
which the Company is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the Closing Date
(or in the case of filings detailed above, will be made timely after the Closing Date), and the Company is unaware of any facts or circumstances
which might prevent the Company from obtaining or effecting any of the registration, application or filings contemplated by the Transaction
Documents. The Company is not in violation of the listing requirements of the Principal Market and has no knowledge of any facts or circumstances
which would reasonably lead to delisting or suspension of the Common Shares in the foreseeable future. The issuance by the Company of
the Securities shall not have the effect of delisting or suspending the Common Shares from the Principal Market.
(f) Acknowledgment Regarding
Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the capacity of an arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and that no Buyer is (i)
an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate” of the Company or any of its Subsidiaries
(as defined in Rule 144) or (iii) to the knowledge of the Company, a “beneficial owner” of more than 10% of the Common Shares
(as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)). The Company
further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any
similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given
by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby
and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company further represents to each Buyer that the
Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and
its representatives.
(g) No General Solicitation;
Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with
the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory
fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising out
of the transactions contemplated hereby, including, without limitation, placement agent fees payable to EF Hutton LLC (the “Placement
Agent”) in connection with the sale of the Securities. The Company shall pay, and hold each Buyer harmless against, any liability,
loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such
claim. The Company acknowledges that it has engaged the Placement Agent in connection with the sale of the Securities. Other than the
Placement Agent, neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection with the
offer or sale of the Securities.
(h) No Integrated Offering.
None of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of
the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings or otherwise, or cause this
offering of the Securities to require approval of shareholders of the Company for purposes of the 1933 Act or any applicable shareholder
approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which
any of the securities of the Company are listed or designated for quotation. None of the Company, its Subsidiaries, their affiliates nor
any Person acting on their behalf will take any action or steps that would require registration of the issuance of any of the Securities
under the 1933 Act or cause the offering of any of the Securities to be integrated with other offerings for purposes of any such applicable
shareholder approval provisions.
(i) Application of Takeover
Protections; Rights Agreement. The Company and its Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, interested shareholder, business combination, poison pill (including, without limitation,
any distribution under a rights agreement) or other similar anti-takeover provision under the Amended and Restated Certificate of Incorporation
or other organizational documents or the laws of the jurisdiction of its formation which is or could become applicable to any Buyer as
a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities
and any Buyer’s ownership of the Securities. The Company and its Board of Directors have taken all necessary action, if any, in
order to render inapplicable any shareholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common
Shares or a change in control of the Company or any of its Subsidiaries.
(j) SEC Documents; Financial
Statements. Since February 2, 2024, the Company has timely filed all reports, schedules, forms, statements and other documents required
to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof
or prior to the Closing Date, and all exhibits included therein and financial statements, notes and schedules thereto (other than exhibits
to such documents) and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”).
As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act applicable
to the Company and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents,
at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. As of their respective filing dates, the financial statements of the Company included in the SEC Documents complied as
to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with the U.S. generally accepted accounting principles (“GAAP”)
consistently applied during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto,
or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the
results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments which will not be material, either individually or in the aggregate). No other information provided by or on behalf
of the Company to any of the Buyers which is not included in the SEC Documents (including, without limitation, information referred to
in Section 2(d) of this Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they
are or were made, not misleading.
(k) Absence of Certain Changes.
Since February 2, 2024, there has been no material adverse change and no material adverse development in the business, assets, liabilities,
properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or any of its Subsidiaries.
Since February 2, 2024, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets,
individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business or (iii) had capital expenditures,
individually or in the aggregate, in excess of $100,000. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection
pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the
Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries,
individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby
to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(k), “Insolvent” means,
with respect to any Person, (i) the present fair saleable value of such Person’s assets is less than the amount required to pay
such Person’s total Indebtedness (as defined in Section 3(r)), (ii) such Person is unable to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) such Person intends to incur or believes that
it will incur debts that would be beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital with
which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.
(l) No Undisclosed Events,
Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is contemplated
to occur with respect to the Company, its Subsidiaries or their respective business, properties, prospects, operations or financial condition,
that would be required to be disclosed by the Company under applicable securities laws on a registration statement on Form S-1 filed with
the SEC relating to an issuance and sale by the Company of its Common Shares and which has not been publicly announced.
(m) Conduct of Business;
Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under its Amended
and Restated Certificate of Incorporation, any certificate of designations, preferences or rights of any other outstanding series of preferred
stock of the Company or any of its Subsidiaries or their organizational charter, certificate of formation or certificate of incorporation
or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute,
ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries
will conduct its business in violation of any of the foregoing, except in all cases for possible violations which would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and each of its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate foreign, federal or state regulatory authorities necessary to conduct their respective
businesses, except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate,
a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit. Without limiting the generality of the foregoing, the Company is not
in violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances
that would reasonably lead to delisting or suspension of the Common Shares by the Principal Market in the foreseeable future. Since February
2, 2024, (i) the Common Shares have been listed or designated for quotation on the Principal Market, (ii) trading in the Common Shares
have not been suspended by the SEC or the Principal Market and (iii) the Company has received no communication, written or oral, from
the SEC or the Principal Market regarding the suspension or delisting of the Common Shares from the Principal Market.
(n) Foreign Corrupt Practices.
Neither the Company, nor any of its Subsidiaries, nor any director, officer, agent, employee or other Person acting on behalf of the Company
or any of its Subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its Subsidiaries (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made
any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated
or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
(o) Sarbanes-Oxley Act.
The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective
as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the
date hereof to the extent applicable to the Company.
(p) Transactions With Affiliates.
Except as disclosed in the SEC Documents, none of the officers, directors or employees of the Company or any of its Subsidiaries is presently
a party to any transaction with the Company or any of its Subsidiaries (other than for ordinary course services as employees, officers
or directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director or employee or,
to the knowledge of the Company or any of its Subsidiaries, any corporation, partnership, trust or other Person in which any such officer,
director, or employee has a substantial interest or is an employee, officer, director, trustee or partner.
(q) Equity Capitalization.
As of the date hereof, the authorized share capital stock of the Company consists of (i) 300,000,000 Common Shares, of which as of the
date hereof, 92,729,443 are issued and outstanding, 9,500,000 shares are reserved for issuance pursuant to the Company’s stock option
and purchase plans and 40,151,517 shares are reserved for issuance pursuant to securities (other than the aforementioned options and Warrants)
exercisable or exchangeable for, or convertible into, Common Shares and (ii) 2,000,000 preferred shares, of which none are outstanding.
No Common Shares are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly
issued, fully paid and nonassessable. 70,048,362 of the Company’s issued and outstanding Common Shares on the date hereof are as
of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act) of the Company or any of
its Subsidiaries. (i) Except as disclosed in the SEC Documents, none of the Company’s or any Subsidiary’s capital stock is
subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary;
(ii) except as disclosed in the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock
of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into,
or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) except as disclosed in the SEC
Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments
evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become
bound; (iv) except as disclosed in as disclosed in the SEC Documents, there are no financing statements securing obligations in any amounts
filed in connection with the Company or any of its Subsidiaries; (v), except as disclosed in the SEC Documents, there are no agreements
or arrangements (other than pursuant to the Registration Rights Agreement) under which the Company or any of its Subsidiaries is obligated
to register the sale of any of their securities under the 1933 Act; (vi) as disclosed in the SEC Documents, there are no outstanding securities
or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security
of the Company or any of its Subsidiaries; (vii) except as disclosed in the SEC Documents, there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in the SEC Documents,
neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed
in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s
or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse
Effect. True, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as
in effect on the date hereof (the “Amended and Restated Certificate of Incorporation”), and the terms of all securities
convertible into, or exercisable or exchangeable for, Common Shares and the material rights of the holders thereof in respect thereto
have heretofore been filed as part of the SEC Documents.
(r) Indebtedness and
Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documents, has any outstanding
Indebtedness (as defined below), (ii) except as disclosed in the SEC Documents, is a party to any contract, agreement or instrument, the
violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument would reasonably be expected
to result in a Material Adverse Effect, (iii) except as disclosed in the SEC Documents, is in violation of any term of, or in default
under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result,
individually or in the aggregate, in a Material Adverse Effect, or (iv) except as disclosed in the SEC Documents, is a party to any contract,
agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or
is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means,
without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase
price of property or services (including, without limitation, “finance leases” in accordance with GAAP, consistently applied
during the periods involved) (other than trade payables entered into in the ordinary course of business consistent with past practice),
(C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations
evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement,
or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale
of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently
applied for the periods covered thereby, is classified as a finance lease, (G) all indebtedness referred to in clauses (A) through (F)
above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage,
claim, lien, tax, right of first refusal, pledge, charge, security interest or other encumbrance upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become
liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of
the kinds referred to in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any
direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, finance lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is
to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect
thereto.
(s) Absence of Litigation.
There is no action, suit, proceeding, inquiry or investigation before or by the Principal Market, any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company
or any of its Subsidiaries, the Common Shares or any of the Company’s Subsidiaries or any of the Company’s or its Subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, except as disclosed in the SEC
Documents.
(t) Insurance. The Company
and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for and neither the
Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect.
(u) Employee Relations.
Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member of a union. The
Company believes that its and its Subsidiaries’ relations with their respective employees are good. No executive officer (as defined
in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has notified the Company
or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such officer’s
employment with the Company or any such Subsidiary. No executive officer or other key employee of the Company or any of its Subsidiaries
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment
of each such executive officer or other key employee (as the case may be) does not subject the Company or any of its Subsidiaries to any
liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all federal, state, local
and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms and conditions of employment
and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(v) Title. The Company
and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property
owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as do not materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company and any of its Subsidiaries. Any real property and facilities held under lease by the Company
or any of its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.
(w) Intellectual Property
Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service marks,
service mark registrations, service names, patents, patent rights, copyrights, original works of authorship, inventions, licenses, approvals,
governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations therefor (“Intellectual
Property Rights”) necessary to conduct their respective businesses as now conducted and as presently proposed to be conducted.
Except as disclosed in the SEC Documents, none of the Company’s or its Subsidiaries’ Intellectual Property Rights have expired,
terminated or been abandoned, or are expected to expire, terminate or be abandoned, within three years from the date of this Agreement.
The Company has no knowledge of any infringement by the Company or any of its Subsidiaries of Intellectual Property Rights of others.
There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries, being threatened,
against the Company or any of its Subsidiaries regarding their Intellectual Property Rights. The Company is not aware of any facts or
circumstances which might give rise to any of the foregoing infringements or claims, actions or proceedings. The Company and each of its
Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property
Rights.
(x) Environmental Laws.
The Company and its Subsidiaries (A) are in compliance with all Environmental Laws (as defined below), (B) have received all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in
compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (A), (B) and
(C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term
“Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations issued, entered, promulgated or approved thereunder.
(y) Subsidiary Rights.
The Company or one of its Subsidiaries has the right to vote, and (subject to limitations imposed by applicable law or the Subsidiaries
charter documents) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such
Subsidiary.
(z) Tax Status. Except
as disclosed in the SEC Documents, the Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state
income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all
taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. Except as disclosed in
the SEC Documents, there are no unpaid taxes in any material amount claimed in writing to be due by the taxing authority of any jurisdiction,
and according to the best knowledge of the officers of the Company and its Subsidiaries, there is no basis for any such claim.
(aa) Internal Accounting
and Disclosure Controls. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, consistently applied
during the periods involved and applicable law, and to maintain asset and liability accountability, (iii) access to assets or incurrence
of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability
for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken
with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under
the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files or
submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of
the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company’s management, including
its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions
regarding required disclosure. Except as disclosed in the SEC Documents, during the twelve months prior to the date hereof neither the
Company nor any of its Subsidiaries has received any notice or correspondence from any accountant relating to any material weakness in
any part of the system of internal accounting controls of the Company or any of its Subsidiaries.
(bb)
Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries
and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is
not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.
(cc) Investment Company Status.
Neither the Company nor any of its Subsidiaries is, and upon consummation of the sale of the Securities, and for so long as any Buyer
holds any Securities, will not be, an “investment company,” an affiliate of an “investment company,” a company
controlled by an “investment company” or an “affiliated person” of, or “promoter” or “principal
underwriter” for, an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(dd) Acknowledgement Regarding
Buyers’ Trading Activity. The Company acknowledges and agrees that (i) none of the Buyers has been asked to agree, nor has any
Buyer agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities
based on securities issued by the Company or to hold the Securities for any specified term; (ii) any Buyer, and counter-parties in “derivative”
transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short” position in the Common
Shares and (iii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any
“derivative” transaction. The Company further understands and acknowledges that one or more Buyers may engage in hedging and/or
trading activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods
that the value of the Warrant Shares are being determined and such hedging and/or trading activities, if any, can reduce the value of
the existing shareholders’ equity interest in the Company both at and after the time the hedging and/or trading activities are being
conducted. The Company acknowledges that such aforementioned hedging and/or trading activities do not constitute a breach of this Agreement,
the Warrants or any of the documents executed in connection herewith.
(ee) Manipulation of Price.
The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause
or to result, or that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of any of the Securities, (ii) other than the Placement Agent, sold, bid for, purchased,
or paid any compensation for soliciting purchases of, any of the Securities, or (iii) other than the Placement Agent, paid or agreed to
pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(ff) U.S. Real Property Holding
Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any of the Securities are held by
any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code
of 1986, as amended, and the Company and each Subsidiary shall so certify upon any Buyer’s request.
(gg) Eligibility for Registration.
The Company is eligible to register the Purchased Shares and the Warrant Shares for resale by the Buyers using Form S-1 promulgated under
the 1933 Act.
(hh) Transfer Taxes.
On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection
with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully paid or provided
for by the Company, and all laws imposing such taxes will be or will have been complied with.
(ii) Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company Act of 1956, as amended
(the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).
Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the
outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises
a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal
Reserve.
(jj) Compliance
with Anti-Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements and all other applicable
U.S. and non-U.S. anti-money laundering laws, rules and regulations, including, but not limited to, those of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the United States Bank Secrecy Act,
as amended by the USA PATRIOT Act of 2001, and the United States Money Laundering Control Act of 1986 (18 U.S.C. §§1956 and
1957), as amended, as well as the implementing rules and regulations promulgated thereunder, and
the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency or self-regulatory body (collectively, the
“Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or,
to the knowledge of the Company, threatened.
(kk) No
Conflicts with Sanctions Laws. Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, agent, affiliate
or other person associated with or acting on behalf of the Company or any of its Subsidiaries or affiliates is, or is directly or indirectly
owned or controlled by, a Person that is currently the subject or the target of any sanctions administered or enforced by the U.S. government
(including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”)
or the U.S. Departments of State or Commerce and including, without limitation, the designation as a “Specially Designated National”
or on the “Sectoral Sanctions Identifications List”, collectively “Blocked Persons”), the United Nations Security
Council, the European Union, Her Majesty’s Treasury or any other relevant sanctions authority (collectively, “Sanctions
Laws”); neither the Company, any of its Subsidiaries, nor any director, officer,
employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of its Subsidiaries or affiliates,
is located, organized or resident in a country or territory that is the subject or target of a comprehensive embargo or Sanctions Laws
prohibiting trade with the country or territory, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria (each,
a “Sanctioned Country”); the Company maintains in effect and enforces policies and procedures designed to ensure
compliance by the Company and its Subsidiaries with applicable Sanctions Laws; neither the Company,
any of its Subsidiaries, nor any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of
the Company or any of its Subsidiaries or affiliates, acting in any capacity in connection with the operations of the Company, conducts
any business with or for the benefit of any Blocked Person or engages in making or receiving any contribution of funds, goods or services
to, from or for the benefit of any Blocked Person, or deals in, or otherwise engages in any transaction relating to, any property or interests
in property blocked or subject to blocking pursuant to any applicable Sanctions Laws; no action
of the Company or any of its Subsidiaries in connection with (i) the execution, delivery and performance of this Agreement and the other
Transaction Documents, (ii) the issuance and sale of the Securities, or (iii) the direct or indirect use of proceeds from the Securities
or the consummation of any other transaction contemplated hereby or by the other Transaction Documents or the fulfillment of the terms
hereof or thereof, will result in the proceeds of the transactions contemplated hereby and by the other Transaction Documents being used,
or loaned, contributed or otherwise made available, directly or indirectly, to any Subsidiary, joint venture partner or other person or
entity, for the purpose of (i) unlawfully funding or facilitating any activities of or business with any person that, at the time of such
funding or facilitation, is the subject or target of Sanctions Laws, (ii) unlawfully funding or facilitating any activities of or business
in any Sanctioned Country or (iii) in any other manner that will result in a violation by any Person (including any Person participating
in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions Laws. For the past five (5) years, the Company
and its Subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that
at the time of the dealing or transaction is or was the subject or the target of Sanctions Laws or with any Sanctioned Country.
(ll) Anti-Bribery.
Neither the Company nor any of the Subsidiaries has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any law. Neither the Company, nor any of its
Subsidiaries or affiliates, nor any director, officer, agent, employee or other person associated with or acting on behalf of the Company,
or any of its Subsidiaries or affiliates, has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official
or employee, to any employee or agent of a private entity with which the Company does or seeks to do business or to foreign or domestic
political parties or campaigns, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the U.K. Bribery Act 2010, or any other similar
law of any other jurisdiction in which the Company operates its business, including, in each case, the rules and regulations thereunder
(the “Anti-Bribery Laws”), (iv) taken, is currently taking or will take any action in furtherance of an offer, payment,
gift or anything else of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will
be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any
improper advantage or (v) otherwise made any offer, bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment;
the Company and each of its respective Subsidiaries has instituted and has maintained, and will continue to maintain, policies and procedures
reasonably designed to promote and achieve compliance with the laws referred to in (iii) above and with this representation and
warranty; none of the Company, nor any of its Subsidiaries or affiliates will directly or indirectly use the proceeds of the convertible
securities or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other
person or entity for the purpose of financing or facilitating any activity that would violate the laws and regulations referred to in
(iii) above; there are, and have been, no allegations, investigations or inquiries with regard to a potential violation of any Anti-Bribery
Laws by the Company, its Subsidiaries or affiliates, or any of their respective current or former directors, officers, employees, shareholders,
representatives or agents, or other persons acting or purporting to act on their behalf.
(mm) No Additional Agreements.
The Company does not have any agreement or understanding with any Buyer with respect to the transactions contemplated by the Transaction
Documents other than as specified in the Transaction Documents.
(nn) Disclosure. Except
for discussions specifically regarding the offer and sale of the Securities, the Company confirms that neither it nor any other Person
acting on its behalf has provided any of the Buyers or their agents or counsel with any information that constitutes or could reasonably
be expected to constitute material, non-public information concerning the Company or any of its Subsidiaries, other than the existence
of the transactions contemplated by this Agreement and the other Transaction Documents. The Company understands and confirms that each
of the Buyers will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure provided
to the Buyers regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the schedules
to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or on
behalf of the Company or any of its Subsidiaries to you pursuant to or in connection with this Agreement and the other Transaction Documents,
taken as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will not
contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they are made, not misleading. Each press release issued by the Company or any of its Subsidiaries
during the twelve (12) months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect
to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results
thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before
the date hereof or announcement by the Company but which has not been so publicly disclosed. The Company acknowledges and agrees that
no Buyer makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically
set forth in Section 2.
(oo) Stock Option Plans.
Each stock option granted by the Company was granted (i) in accordance with the terms of the applicable Company stock option plan and
(ii) with an exercise price at least equal to the fair market value of the Common Shares on the date such stock option would be considered
granted under GAAP, consistently applied during the periods involved and applicable law. No stock option granted under the Company’s
stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(pp) No Disagreements with
Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably anticipated by the Company
to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current
with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations
under any of the Transaction Documents.
(qq) No Disqualification
Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“Regulation
D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other
officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding
voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the 1933
Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together,
“Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i)
to (viii) under the 1933 Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2)
or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Buyers
a copy of any disclosures provided thereunder.
(rr) Other Covered Persons.
The Company is not aware of any Person (other than the Placement Agent) that has been or will be paid (directly or indirectly) remuneration
for solicitation of Buyers or potential purchasers in connection with the sale of any Regulation D Securities.
(ss) Dilutive
Effect. The Company understands and acknowledges that the number of Warrant Shares issuable pursuant to terms of the Warrants will
increase in certain circumstances. The Company further acknowledges that its obligation to issue Warrant Shares pursuant to the terms
of the Warrants in accordance with this Agreement and the Warrants is absolute and unconditional regardless of the dilutive effect that
such issuance may have on the ownership interests of other shareholders of the Company.
4. COVENANTS.
(a) Best Efforts. Each
party shall use its reasonable best efforts timely to satisfy each of the covenants and the conditions to be satisfied by it as provided
in Sections 6 and 7 of this Agreement.
(b) Form D and Blue Sky.
The Company agrees to file a Form D with respect to the Securities as required under Regulation D. The Company shall, on or before the
Closing Date, take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify
the Securities for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky”
laws of the states of the United States (or to obtain an exemption from such qualification). The Company shall make all filings and reports
relating to the offer and sale of the Securities required under applicable securities or “Blue Sky” laws of the states of
the United States following the Closing Date.
(c) Reporting Status.
Until the date on which the Investors (as defined in the Registration Rights Agreement) shall have sold all of the Purchased Shares and
Warrant Shares and none of the Warrants are outstanding (the “Reporting Period”), the Company shall timely file all
reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required
to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit
such termination, and the Company shall take all actions necessary to maintain its eligibility to register the resale of the Purchased
Shares and Warrant Shares by the Investors on Form S-3 or such other applicable form.
(d) Use of Proceeds.
The Company intends to use the proceeds from the sale of the Securities for general corporate purposes and for working capital purposes,
as well as for potential acquisitions.
(e) Financial Information.
The Company agrees to send the following to each Investor (as defined in the Registration Rights Agreement) during the Reporting Period
(i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, within one (1)
Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, any Current
Reports on Form 8-K (or any analogous reports under the 1934 Act) and any registration statements (other than on Form S-8) or amendments
filed pursuant to the 1933 Act, (ii) unless the following are filed with the SEC through EDGAR and are available to the public through
the EDGAR system, within one (1) Business Day after the filing thereof with the SEC or are available to the public on the Company’s
website on the same day as the release thereof, e-mailed copies of all press releases issued by the Company or any of its Subsidiaries
and (iii) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, within one
(1) Business Day after the filing thereof with the SEC or are available to the public on the Company’s website on the same day as
the release thereof, copies of any notices and other information made available or given to the shareholders of the Company generally,
contemporaneously with the making available or giving thereof to the shareholders. As used herein, “Business Day” means
any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to
remain closed.
(f) Listing. The Company
shall promptly secure the listing of all of the Registrable Securities (as defined in the Registration Rights Agreement) upon each national
securities exchange and automated quotation system, if any, upon which the Common Shares are then listed (subject to official notice of
issuance) and shall maintain such listing of all Registrable Securities from time to time issuable under the terms of the Transaction
Documents. The Company shall maintain the authorization for quotation of the Common Shares on the Principal Market or any other Eligible
Market (as defined in the Warrants). Neither the Company nor any of its Subsidiaries shall take any action which would be reasonably expected
to result in the delisting or suspension of the Common Shares on the Principal Market. The Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section 4(f).
(g) Fees. The Company
shall reimburse the Lead Investor (a Buyer) or its designee(s) (in addition to any other expense amounts paid to any Buyer or its counsel
prior to the date of this Agreement) for up to $125,000 of costs and expenses incurred in connection with the transactions contemplated
by the Transaction Documents (including all legal fees and disbursements in connection therewith, documentation and implementation of
the transactions contemplated by the Transaction Documents and due diligence in connection therewith), which amount shall be withheld
by such Buyer from its Purchase Price at the Closing, to the extent not previously reimbursed by the Company. Notwithstanding the foregoing,
in no event will the fees of counsel of the Lead Investor reimbursed by the Company pursuant to this Section 4(g) (in addition to any
other expense amounts paid to any Buyer or its counsel prior to the date of this Agreement) exceed $125,000 without the prior approval
from the Company. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or broker’s
commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby, including,
without limitation, any fees or commissions payable to the Placement Agent, including any legal fees and expenses of the Placement Agent.
The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable
attorney’s fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise
set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities
to the Buyers.
(h) Pledge of Securities.
The Company acknowledges and agrees that the Securities may be pledged by an Investor in connection with a bona fide margin agreement
or other loan or financing arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer,
sale or assignment of the Securities hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company
with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including,
without limitation, Section 2(f) hereof; provided that an Investor and its pledgee shall be required to comply with the provisions
of Section 2(f) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to execute
and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to
such pledgee by an Investor.
(i) Disclosure of Transactions
and Other Material Information. On or before the Disclosure Time (as defined below), the Company shall (A) issue a press release disclosing
all material terms of the transactions contemplated hereby and (B) simultaneously file a Current Report on Form 8-K describing the terms
of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching the material Transaction
Documents (including, without limitation, this Agreement (and all schedules and exhibits to this Agreement required to be filed under
the rules and regulations of the 1934 Act), the form of the Warrants, the form of Lock-Up Agreement and the form of the Registration Rights
Agreement as exhibits to such filing (including all attachments), the “8-K Filing”). From and after the earlier of
the filing of the 8-K Filing or the issuance of the press release, no Buyer shall be in possession of any material, non-public information
received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents, 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 any of the Buyers or any of their
affiliates, on the other hand, shall terminate. The Company shall not, and shall cause each of its Subsidiaries and its and each of their
respective officers, directors, employees, affiliates and agents, not to, provide any Buyer with any material, non-public information
regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer.
If a Buyer has, or believes it has, received any such material, non-public information regarding the Company or any of its Subsidiaries
from the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents, it may provide
the Company with written notice thereof. The Company shall, within two (2) Trading Days of receipt of such notice, make public disclosure
of such material, non-public information. In the event of a breach of the foregoing covenant by the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees, affiliates and agents, in addition to any other remedy provided herein
or in the Transaction Documents, a Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement
or otherwise, of such material, non-public information without the prior approval by the Company, its Subsidiaries, or any of its or their
respective officers, directors, employees, affiliates or agents. No Buyer shall have any liability to the Company, its Subsidiaries, or
any of its or their respective officers, directors, employees, affiliates or agents for any such disclosure. To the extent that the Company
delivers any material, non-public information to a Buyer without such Buyer’s consent, the Company hereby covenants and agrees that
such Buyer 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. Subject to the foregoing,
neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of any
Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K
Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause
(i) each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release).
Except for the Registration Statement required to be filed pursuant to the Registration Rights Agreement, without the prior written consent
of any applicable Buyer, neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of such Buyer in any filing,
announcement, release or otherwise. As used herein, “Disclosure Time” means, (i) if this Agreement is signed after
9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading
Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, or (ii) if this Agreement
is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York
City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
(j) Corporate Existence.
So long as any Buyer beneficially owns any Warrants, the Company shall maintain its corporate existence and shall not be party to any
Fundamental Transaction (as defined in the Warrants) unless the Company is in compliance with the applicable provisions governing Fundamental
Transactions set forth in the Warrants.
(k) Reservation of Shares.
So long as any Buyer owns any Warrants, the Company shall take all action necessary to at all times after the date hereof have authorized,
and reserved for the purpose of issuance, no less than the number of Common Shares issuable upon exercise of the Warrants then outstanding
(without taking into account any limitations on the exercise of the Warrants set forth in the Warrants). If at any time the number of
Common Shares authorized and reserved for issuance is not sufficient to meet the Required Reserved Amount, the Company will promptly take
all corporate action necessary to authorize and reserve a sufficient number of shares, including, without limitation, calling a special
meeting of shareholders to authorize additional shares to meet the Company’s obligations under Section 3(c), in the case of an insufficient
number of authorized shares, obtain shareholder approval of an increase in such authorized number of shares, and voting the management
shares of the Company in favor of an increase in the authorized shares of the Company to ensure that the number of authorized shares is
sufficient to meet the Required Reserved Amount.
(l) Conduct of Business.
The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation of any governmental
entity, including, without limitation, FCPA and other applicable Anti-Bribery Laws, OFAC regulations and other applicable Sanctions Laws,
and Anti-Money Laundering Laws.
(i) Neither the Company,
nor any of its Subsidiaries or affiliates, directors, officers, employees, representatives or agents shall:
(a) conduct any business
or engage in any transaction or dealing with or for the benefit of any Blocked Person, including the making or receiving of any contribution
of funds, goods or services to, from or for the benefit of any Blocked Person;
(b) deal in, or otherwise
engage in any transaction relating to, any property or interests in property blocked or subject to blocking pursuant to the applicable
Sanctions Laws;
(c) use any of the
proceeds of the transactions contemplated by this Agreement to finance, promote or otherwise support in any manner any illegal activity,
including, without limitation, any Anti-Money Laundering Laws, Sanctions Laws, or Anti-Bribery Laws; or
(d) violate, attempt
to violate, or engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, any
of the Anti-Money Laundering Laws, Sanctions Laws, or Anti-Bribery Laws.
(ii) The Company shall maintain
in effect and enforce policies and procedures designed to ensure compliance by the Company and its Subsidiaries and their directors, officers,
employees, agents representatives and affiliates with the Sanctions Laws and Anti-Bribery Laws.
(iii) The
Company will promptly notify the Buyers in writing if any of the Company, or any of its Subsidiaries or affiliates, directors,
officers, employees, representatives or agents, shall become a Blocked Person, or become directly
or indirectly owned or controlled by a Blocked Person.
(iv) The Company shall provide
such information and documentation as the Buyers or any of their affiliates may require to satisfy compliance with the Anti-Money Laundering
Laws, Sanctions Laws, or Anti-Bribery Laws.
(v) The covenants set forth
above shall be ongoing. The Company shall promptly notify the Buyers in writing should it become aware (a) of any changes to these covenants,
or (b) if it cannot comply with the covenants set forth herein. The Company shall also promptly notify the Buyers in writing should they
become aware of an investigation, litigation or regulatory action relating to an alleged or potential violation of the Anti-Money Laundering
Laws, Sanctions Laws, and Anti-Bribery Laws.
(m) Additional Issuances
of Securities.
(i) For purposes of this
Agreement, the following definitions shall apply.
(1) “Convertible
Securities” means any stock or securities (other than Options) convertible into or exercisable or exchangeable for Common Shares.
(2) “Options”
means any rights, warrants or options to subscribe for or purchase Common Shares or Convertible Securities.
(3) “Common
Shares Equivalents” means, collectively, Options and Convertible Securities, and any other securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at any time Common Shares, including, without limitation, any debt, preferred
stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Shares.
(4) “Resale
Satisfaction Date” means the date for which, commencing on the Trigger Date, an aggregate of thirty (30) Trading Days have occurred
on which (a) one or more Registration Statement(s) covering the resale of all Registrable Securities has been effective and available
for the re-sale of all such Registrable Securities and/or (b) all of the Registrable Securities may be sold without restriction or limitation
pursuant to Rule 144. For the sake of clarity, (x) the Trading Days referred to in this definition may be non-consecutive and (y) Trading
Days referred to in subsection (a) may be combined with those in subsection (b) for purposes of aggregating the thirty (30) Trading Day
period.
(5) “Trigger
Date” means the later of (1) the earlier of (x) such date as one or more Registration Statement(s) covering the resale of all
Registrable Securities has been effective and available for the re-sale of all such Registrable Securities and (y) such date as all of
the Registrable Securities may be sold without restriction or limitation pursuant to Rule 144; provided that in no event shall such date
referred to in clause (x) or (y) occur later than (a) six (6) months from the date hereof if the Company satisfies the current public
information requirements under Rule 144(c) during the periods set forth in Section 4(m)(ii) hereof or (b) twelve (12) months from the
date hereof otherwise, or (2) the date Stockholder Approval is obtained.
(6) “Variable
Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities
either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations
for the Common Shares at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange
price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence
of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Shares, other
than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without
limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities
at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each
Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy
shall be in addition to any right to collect damages.
(ii) Except as provided
in Schedule 4(m)(ii), from the date hereof until the later of (a) the date that is sixty (60) calendar days after the Trigger Date
or (b) the Resale Satisfaction Date, the Company shall not, directly or indirectly, file any registration statement with the SEC, or
file any amendment or supplement thereto or cause any registration statement or amendment thereto to be declared effective by the
SEC, other than amendments or supplements to registration statements (but not amendments or supplements to shelf registration
statements) that are filed and declared effective with the SEC prior to the date hereof or grant any registration rights to any
Person that can be exercised prior to such time as set forth above, other than pursuant to the Registration Rights Agreement. From
the date hereof until the later of (a) the date that is sixty (60) calendar days after the Trigger Date or (b) the Resale
Satisfaction Date (the later of (a) or (b) is referred to herein as the “Subsequent Placement Restrictive
Period”), the Company shall not, (1) directly or indirectly, offer, sell, grant any option to purchase, or otherwise
dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its
Subsidiaries’ debt, equity or equity equivalent securities, including without limitation any debt, preferred stock or other
instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or
exercisable for Common Shares or Common Share Equivalents, including, without limitation, any rights, warrants or options to
subscribe for or purchase Common Shares or directly or indirectly convertible into or exchangeable or exercisable for Common Shares
at a price which varies or may vary with the market price of the Common Shares, including by way of one or more reset(s) to any
fixed price (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent
Placement”), (2) enter into, or effect a transaction under, any agreement, including, but not limited to, an equity line
of credit or “at-the-market” offering, whereby the Company may issue securities at a future determined price or (3) be
party to any solicitations, negotiations or discussions with regard to the foregoing. Notwithstanding the foregoing restriction with
respect to a Subsequent Placement during the Subsequent Placement Restrictive Period, the Company may (A) enter into a merger,
acquisition, asset purchase, share exchange or similar transaction, which requires the Company to enter into a Subsequent Placement
(the “M&A Placement”), so long as the securities issued in such M&A Placement are not registerable prior
to the end of the Subsequent Placement Restrictive Period or (B) enter into a Subsequent Placement in connection with a project
financing with any of the U.S., federal, state or local governments. From the date hereof until the date that that the Securities
are no longer outstanding, the Company and each Subsidiary shall be prohibited from entering into an agreement to effect any
Subsequent Placement involving a Variable Rate Transaction.
(iii) The restrictions contained
in subsection (ii) of this Section 4(m) shall not apply in connection with the issuance of any Excluded Securities (as defined in the
Series C Warrants).
(n) Participation in Future
Financing.
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(i) |
From the date hereof until the eighteen (18)-month anniversary of the Closing Date, upon any issuance by the Company or any of its Subsidiaries of Common Shares or Common Shares Equivalents for cash consideration, Indebtedness or a combination of units thereof (a “Subsequent Financing”), the Buyers that purchase at least $700,000 of Securities pursuant to this Agreement individually shall have the right to participate altogether in up to an amount of the Subsequent Financing equal to 50% of the Subsequent Financing on a pro rata basis (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing. |
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(ii) |
At least two (2) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Buyer a written notice of its intention to effect a Subsequent Financing (the “Pre-Notice”), which Pre-Notice shall ask such Buyer if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of a Buyer, and only upon a request by such Buyer, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Buyer. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. For the purposes of this Agreement the “Trading Day” means a day on which the Principal Market is open for trading. |
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(iii) |
Any Buyer desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the second (2nd) Trading Day after all of the Buyers have received the Pre-Notice that such Buyer is willing to participate in the Subsequent Financing, the amount of such Buyer’s participation, and representing and warranting that such Buyer has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Buyer as of such second (2nd) Trading Day, such Buyer shall be deemed to have notified the Company that it does not elect to participate. |
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(iv) |
If by 5:30 p.m. (New York City time) on the second (2nd ) Trading Day after all of the Buyers have received the Pre-Notice, notifications by the Buyers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the Participation Maximum of the Subsequent Financing, then the Company may effect the remaining portion of such Participation Maximum of the Subsequent Financing (and for avoidance of doubt, the other 50% of such Subsequent Financing) on the terms and with the Persons set forth in the Subsequent Financing Notice. |
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(v) |
If by 5:30 p.m. (New York City time) on the second (2nd) Trading Day after all of the Buyers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Buyers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Buyers shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the Purchase Price of Securities purchased on the Closing Date by a Buyer participating under this Section 4(o) and (y) the sum of the aggregate Purchase Price of Securities purchased on the Closing Dates by all Buyers participating under this Section 4(o). |
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(vi) |
The Company must provide the Buyers with a second Subsequent Financing Notice, and the Buyers will again have the right of participation set forth above in this Section 4(o), if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms in all material respects set forth in such Subsequent Financing Notice within ten (10) Trading Days after the date of the initial Subsequent Financing Notice. |
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(vii) |
The Company and each Buyer agree that if any Buyer elects to participate in the Subsequent Financing, the transaction documents related to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one or more of the Buyers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Buyer shall be required to agree to any restrictions on trading as to any of the Securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Buyer, or unless all Buyers and other participants in such Subsequent Financing shall be bound by the same term or provision. |
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(viii) |
Notwithstanding anything to the contrary in this Section 4(o) and unless otherwise agreed to by such Buyer, the Company shall either confirm in writing to such Buyer that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Buyer will not be in possession of any material, non-public information, by the thirtieth (30th) day following delivery of the Subsequent Financing Notice. If by such thirtieth (30th) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Buyer, such transaction shall be deemed to have been abandoned and such Buyer shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. |
(o) Lock-Up. The Company
shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements (or any substantially similar lock-up agreements
signed by transferees of the initial parties to the Lock-Up Agreements) except to extend the term of the lock-up period and shall enforce
the provisions of each Lock-Up Agreement (or any substantially similar lock-up agreements signed by transferees of the initial parties
to the Lock-Up Agreements) in accordance with its terms. If any officer or director that is a party to a Lock-Up Agreement (or any substantially
similar lock-up agreements signed by transferees of the initial parties to the Lock-Up Agreements) breaches any provision of a Lock-Up
Agreement, the Company shall promptly use its best efforts to seek specific performance of the terms of such Lock-Up Agreement (or any
substantially similar lock-up agreements signed by transferees of the initial parties to the Lock-Up Agreements).
(p) Notice of Disqualification
Events. The Company will notify the Buyers in writing, prior to the Closing Date of (i) any Disqualification Event relating to any
Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Issuer
Covered Person.
(q) FAST Compliance.
While any Warrants are outstanding, the Company shall maintain a transfer agent that participates in the DTC Fast Automated Securities
Transfer Program.
(r) Stockholder Approval
and Information Statement. The Company shall hold a special meeting of stockholders at the earliest practicable date after the date
hereof, but in no event later than ninety (90) days after the Closing Date for the purpose of obtaining Stockholder Approval (as defined
below), if required to effect the purpose thereof, with the recommendation of the board of directors of the Company that such proposal
be approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management
proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company
shall use its reasonable best efforts to obtain such Stockholder Approval, and request that its officers and directors, cast their proxies
in favor of such proposal. If the Company does not obtain Stockholder Approval at the first meeting, the Company shall call a meeting
every three (3) months thereafter to seek Stockholder Approval until the earlier of the date Stockholder Approval is obtained or the Warrants
are no longer outstanding. Notwithstanding the foregoing, the Company may, in lieu of holding a special meeting of stockholders as aforesaid,
obtain the written consent of a majority of its stockholders covering the Stockholder Approval so long as prior to forty-five (45) days
after the Closing Date, such written consents are obtained and in accordance with Rule 14c-2 of Securities Exchange Act of 1934, as amended,
at least twenty (20) days shall have transpired from the date on which a written information statement containing the information specified
in Schedule 14C detailing such Stockholder Approval shall have been filed with the SEC and delivered to stockholders of the Company. “Stockholder
Approval” means such approval as may be required by the applicable rules and regulations of Principal Market from the stockholders
of the Company to consent to (i) any issuance of the Securities and (ii) a proposal to effectuate a reverse stock split whereby the authorized
share capital is not split and in a range sufficient to satisfy the requirement in Section 4(s) (such corporate action, the “Reverse
Split”). Without limiting the foregoing, the Company shall enforce the obligations of each of the stockholders of the Company
party to a Voting Agreement, including through the exercise of proxies provided thereunder, to the extent necessary or appropriate to
cause each such stockholder to (i) appear at the Company’s stockholders meeting or otherwise cause the shares of the Company outstanding
and beneficially owned by such stockholder to be counted as present thereat for purposes of calculating a quorum, and (ii) vote, or cause
to be voted, all of the Common Shares outstanding and beneficially owned by such stockholder in favor of the Stockholder Approval at the
Company’s stockholders meeting.
(s)
Reverse Split. No later than November 30th, 2024, the Company shall promptly effect the Reverse Split of the Common
Shares such that the closing price of the Common Shares on the effective date of the Reverse Split will be at least $2.00.
5. REGISTER; TRANSFER AGENT
INSTRUCTIONS.
(a) Register. The Company
shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice to each
holder of Securities), a register for the Warrants in which the Company shall record the name and address of the Person in whose name
the Warrants have been issued (including the name and address of each transferee) and the number of Warrant Shares issuable upon exercise
of the Warrants held by such Person. The Company shall keep the register open and available at all times during business hours for inspection
of any Buyer or its legal representatives.
(b) Transfer Agent Instructions.
The Company shall issue irrevocable instructions to its transfer agent, and any subsequent transfer agent, in form and substance reasonably
acceptable to the Lead Investor (the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit shares
to the applicable balance accounts at DTC, registered in the name of each Buyer or its respective nominee(s), for the Purchased Shares
and the Warrant Shares issued at the Closing or upon exercise of the Warrants in such amounts as specified from time to time by each Buyer
to the Company upon exercise of the Warrants. The Company warrants that no instruction other than the Irrevocable Transfer Agent Instructions
referred to in this Section 5(b), and stop transfer instructions to give effect to Section 2(f) hereof, will be given by the Company to
its transfer agent, and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the
extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or transfer of the Securities
in accordance with Section 2(f), the Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or
more certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by such
Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment or transfer involves the Purchased Shares or
the Warrant Shares sold, assigned or transferred pursuant to an effective registration statement or pursuant to Rule 144, the transfer
agent shall issue such Securities to the Buyer, assignee or transferee, as the case may be, without any restrictive legend. The Company
acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges
that the remedy at law for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach
or threatened breach by the Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available
remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required.
6. CONDITIONS TO THE COMPANY’S
OBLIGATION TO SELL.
The obligation of the Company
hereunder to issue and sell the Purchased Shares and the related Warrants to each Buyer at the Closing is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit
and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:
(i) Such Buyer shall have
executed each of the Transaction Documents to which it is a party and delivered the same to the Company.
(ii) Such Buyer shall have
delivered to the Company the Purchase Price (less, in the case of the Lead Investor, the amounts withheld pursuant to Section 4(g)), for
the Purchased Shares and the related Warrants being purchased by such Buyer at the Closing by wire transfer of immediately available funds
pursuant to the wire instructions provided by the Company.
(iii) The representations
and warranties of such Buyer shall be true and correct as of the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date),
and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Closing Date.
7. CONDITIONS TO EACH BUYER’S
OBLIGATION TO PURCHASE.
The obligation of each Buyer
hereunder to purchase the Purchased Shares and the related Warrants at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by
such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i)
The Company shall have duly executed and delivered to such Buyer (A) each of the Transaction Documents, (B) the Purchased Shares (allocated
in such amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement and (C) the related
Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii) Reserved.
(iii) The Company shall have
delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged
in writing by the Company’s transfer agent.
(iv) The Company shall have
delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s
jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar
days prior to the Closing Date.
(v) Reserved.
(vi) The Company shall have
delivered to such Buyer a certified copy of the Amended and Restated Certificate of Incorporation as certified by the Chief Executive
Officer.
(vii) The Company shall have
delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions
consistent with Section 3(b) as adopted by the Company’s Board of Directors in a form reasonably acceptable to the Placement Agent
and (ii) the Amended and Restated Certificate of Incorporation, each as in effect at the Closing, in form and substance reasonably acceptable
to the Lead Investor.
(viii) The representations
and warranties of the Company shall be true and correct as of the date hereof and as of the Closing Date as though made at that time (except
for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) and the
Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. Such Buyer shall
have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect
and in form and substance reasonably acceptable to the Lead Investor.
(ix) The Company shall have
delivered to such Buyer a letter from the Company’s transfer agent certifying the number of Common Shares outstanding as of a date
within five (5) calendar days prior to the Closing Date.
(x)
The Company shall have delivered to each Buyer a lock-up agreement in form and substance reasonably acceptable to the Lead Investor in
favor of the Company executed and delivered by each executive officer of the Company, each director of the Company, Mach FM Acquisitions,
LLC and Global Graphene Group, Inc. (collectively, the “Lock-Up Agreements”).
(xi) The Common Shares (I)
shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by
the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been
threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing
maintenance requirements of the Principal Market.
(xii) The Company shall have
obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xiii) The Company shall
have delivered the Voting Agreement duly executed by the Company and Global Graphene Group, Inc.
(xiv) The Company shall have
delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel
may reasonably request.
8. TERMINATION. In
the event that the Closing shall not have occurred with respect to a Buyer on or before five (5) Business Days from the date hereof due
to the Company’s or such Buyer’s failure to satisfy the conditions set forth in Sections 6 and 7 above (and the nonbreaching
party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate this Agreement
with respect to such breaching party at the close of business on such date by delivering a written notice to that effect to each other
party to this Agreement and without liability of any party to any other party; provided, however, that if this Agreement
is terminated pursuant to this Section 8, the Company shall remain obligated to reimburse the Lead Investor or its designee(s), as applicable,
for the expenses described in Section 4(g) above.
9. MISCELLANEOUS.
(a) Governing Law; Jurisdiction;
Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the
State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The
City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for
such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile or .pdf
signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature
were an original, not a facsimile or .pdf signature.
(c) Headings. The headings
of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability. If
any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
(e)
Entire Agreement; Amendments. This Agreement and the other Transaction Documents supersede all other prior oral or written agreements
between the Buyers, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and
this Agreement, the other Transaction Documents and the instruments referenced herein and therein contain the entire understanding of
the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the
Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement
may be amended other than by an instrument in writing signed by the Company and the holders of at least a majority of the aggregate amount
of Securities issued and issuable hereunder and under the Warrants (without regard to any restriction or limitation on the exercise of
the Warrants contained therein) and shall include the Lead Investor so long as the Lead Investor or any of its Affiliates holds any Securities
(the “Required Holders”), and any amendment to this Agreement made in conformity with the provisions of this Section
9(e) shall be binding on all Buyers and holders of Securities and the Company; provided that any proposed amendment or waiver that disproportionately,
materially and adversely affects the rights and obligations of any Buyer relative to the comparable rights and obligations of the other
Buyers shall require the prior written consent of such adversely affected Buyer. No provisions hereto may be waived other than by an instrument
in writing signed by the party against whom enforcement is sought. No such amendment shall be effective to the extent that it applies
to less than all of the Buyers or holders of the applicable Securities then outstanding. No consideration shall be offered or paid to
any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration
(other than the reimbursement of legal fees) also is offered to all of the parties to the Transaction Documents, holders of Purchased
Shares or holders of the Warrants, as the case may be. The Company has not, directly or indirectly, made any agreements with any Buyers
relating to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth in the Transaction
Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment
or promise or has any other obligation to provide any financing to the Company or otherwise.
(f) Notices. Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement or any of the other
Transaction Documents must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii)
upon delivery when sent by facsimile on or prior to 5:00 pm (New York time) on such date (provided confirmation of transmission is mechanically
or electronically generated and kept on file by the sending party); (iii) one (1) Business Day after they are sent by facsimile after
5:00 pm (New York time) on a day (provided confirmation of transmission is mechanically or electronically generated and kept on file by
the sending party); (iv) upon delivery when sent by electronic mail on or prior to 5:00 pm (New York time) on such date (provided that
the sending party does not receive an automated rejection notice); (v) one (1) Business Day after they are sent by electronic mail after
5:00 pm (New York time) on such date (provided that the sending party does not receive an automated rejection notice); or (vi) one (1)
Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses,
facsimile numbers and e-mail addresses for such communications shall be:
If to the Company:
Solidion Technology Inc.
One Galleria Tower
13355 Noel Road Suite 1100
Dallas, TX 75240
Attn: Jaymes Winters
E-mail: jaymes@nubiabrand.us
With a copy (for informational purposes only) to:
Loeb & Loeb LLP
345 Park Ave,
New York, NY 10154
Attn: Alex Weniger-Araujo
E-mail: aweniger@loeb.com
If to a Buyer, to its address, facsimile number
and e-mail address set forth on the Schedule of Buyers, with copies to such Buyer’s representatives as set forth on the Schedule
of Buyers, or to such other address, facsimile number and/or e-mail address and/or to the attention of such other Person as the recipient
party has specified by written notice given to each other party five (5) calendar days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or e-mail containing the time, date, recipient facsimile number and an image of the
first page of such transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt
by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any
purchasers of the Purchased Shares or the Warrants. The Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Required Holders, including by way of a Fundamental Transaction (unless the Company is in compliance
with the applicable provisions governing Fundamental Transactions set forth in the Warrants). A Buyer may assign some or all of its rights
hereunder without the consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such
assigned rights.
(h) No Third Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for
the benefit of, nor may any provision hereof be enforced by, any other Person, except that (i) the Placement Agent shall be a third party
beneficiary to this Agreement to such extent required by the Placement Agent Agreement by and between the Company and the Placement Agent
dated as of or around the date hereof and (ii) each Indemnitee shall have the right to enforce the obligations of the Company with respect
to Section 9(k).
(i) Survival. Unless
this Agreement is terminated under Section 8, the representations and warranties of the Company and the Buyers contained in Sections 2
and 3, and the agreements and covenants set forth in Sections 4, 5 and 9 shall survive the Closing. Each Buyer shall be responsible only
for its own representations, warranties, agreements and covenants hereunder.
(j) Further Assurances.
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k) Indemnification.
(i) In consideration of each
Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the
Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless each
Buyer, such Buyer’s direct or indirect affiliates and investment advisors and managers (the “Buyer Related Parties”),
and all of such Buyer Related Parties’ respective direct or indirect officers, directors, employees, principals, partners, members,
affiliates, advisors and agents (including, without limitation, those retained in connection with the transactions contemplated by this
Agreement) (collectively, and together with the Buyer Related Parties, the “Indemnitees”), as incurred and with such
Indemnified Liabilities (as defined below) to be paid by the Company to the Indemnitees as soon as practicable but in any event no later
than twenty-five (25) calendar days after written demand by Indemnitees therefor to the Company, from and against any and all actions,
causes of action, suits, claims (including causes of action, suits or claims asserted directly by or between an Indemnitee and the Company),
losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee
is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements
(the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any
misrepresentation or breach of any representation or warranty made by the Company in the Transaction Documents or any other certificate,
instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained
in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, or (c) any action, cause
of action, suit, claim, proceeding, investigation, subpoena or similar event brought or made against or involving, or served upon, such
Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or
resulting from or related to (i) the investment in the Securities, the transactions contemplated by the Transaction Documents or the execution,
delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance
of the Securities, (iii) the public announcement by the Company of the Transaction Documents and/or the issuance of the Securities, including
any accompanying release of the Company’s financial results, or (iv) the status of such Indemnitee or holder of the Securities as
an investor in the Company pursuant to the transactions contemplated by the Transaction Documents, except in the event that such cause
of action, suit or claim is determined by a court of competent jurisdiction in a full and final resolution to be the sole result of the
gross negligence, willful misconduct or fraud by any Buyer. To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
that is permissible under applicable law.
(ii) A claim for indemnification
for any matter not involving a Third Party Claim (as defined below) may be asserted by written notice to the party from whom indemnification
is sought; provided, however, that failure to so notify the indemnitor hereunder (the “Indemnifying Party”)
shall not preclude the Indemnitee from any indemnification that it may claim in accordance with this Section 9(k).
(iii) Promptly after the receipt
by an Indemnitee of notice of any action, cause of action, suit, proceeding, claim, investigation, subpoena or similar event by a third
party that an Indemnitee believes in good faith is an indemnifiable claim hereunder (each, a “Third Party Claim”),
such Indemnitee shall deliver to the Indemnifying Party a written notice of such Third Party Claim (which notice shall include reasonable
detail, to the extent then known, of the basis for the liability and the particular section of the Agreement breached and a copy of all
papers served with respect to such Third Party Claim and any other reasonably necessary documents),and the Indemnifying Party shall have
the right to request to participate in and, with the consent of the Indemnitee (such consent not to be unreasonably withheld, delayed,
or conditioned), to assume control of the defense thereof with counsel selected by Indemnifying Party and reasonably satisfactory to the
Indemnitee; provided, however, that an Indemnitee shall have the right to retain its own counsel with the fees and expenses
of not more than one counsel for all such Indemnitees to be paid by the Indemnifying Party, if, in the reasonable opinion of counsel retained
by the Indemnitee, the representation by such counsel of the Indemnitee and the Indemnifying Party would be inappropriate due to (i) actual
conflicts of interests between such Indemnitee and the Indemnifying Party or (ii) the nature of such Third Party Claim. The Indemnitee
shall reasonably cooperate with the Indemnifying Party in connection with any negotiation or defense of any such Third Party Claim by
the Indemnifying Party and shall furnish to the Indemnifying Party all information reasonably requested by the Indemnifying Party which
relates to such Third Party Claim. The Indemnifying Party shall keep the Indemnitee reasonably apprised at all times as to the status
of the defense or any settlement negotiations with respect thereto. No Indemnifying Party shall be liable for any settlement of any action,
claim or proceeding arising out of any Third Party Claim effected without its prior written consent, provided, however,
that the Indemnifying Party shall not unreasonably withhold, delay or condition its consent. No Indemnifying Party shall, without the
prior written consent of the Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does
not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability
in respect to such Third Party Claim and such settlement shall not include any admission as to fault on the part of the Indemnitee. Following
indemnification as provided for hereunder, the Indemnifying Party shall be subrogated to all rights of the Indemnitee with respect to
all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written
notice to the Indemnifying Party within a reasonable time shall not relieve such Indemnifying Party of any liability to the Indemnitee
under this Section 9(k). For the avoidance of doubt, the obligations of the Indemnitee contained in this Section 9(k)(iii) shall apply
to Third Party Claims only, and shall not apply to direct claims by or between an Indemnitee and the Company.
(iv) Notwithstanding any other
provision of this Agreement, except in the case of fraud, no party shall be liable for any indirect (including lost profit), exemplary
or punitive damages or any other damages to the extent not reasonably foreseeable arising out of or in connection with this Agreement
or the transactions contemplated hereby (in each case, unless any such damages are awarded pursuant to a Third Party Claim).
(l) No Strict Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party.
(m)
Remedies. Each Buyer and each holder of the Securities shall have all rights and remedies set forth in the Transaction Documents
and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights
which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce
such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes that in the event that it fails to perform,
observe, or discharge any or all of its obligations under the Transaction Documents, any remedy at law may prove to be inadequate relief
to the Buyers. The Company therefore agrees that the Buyers shall be entitled to seek temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages and without posting a bond or other security.
(n) Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents,
whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform
its related obligations within the periods therein provided, then such Buyer may rescind or withdraw, in its sole discretion from time
to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future
actions and rights.
(o) Payment Set Aside.
To the extent that the Company makes a payment or payments to the Buyers hereunder or pursuant to any of the other Transaction Documents
or the Buyers enforce or exercise their rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
(p) Independent Nature of
Buyers’ Obligations and Rights. The obligations of each Buyer under any Transaction Document are several and not joint with
the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of any other Buyer
under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Buyer pursuant
hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not so constitute, a partnership,
an association, a joint venture or any other kind of entity, or create a presumption that the Buyers are in any way acting in concert
or as a group, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by the
Transaction Documents and the Company acknowledges that the Buyers are not acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Documents. The Company acknowledges and each Buyer confirms that it has independently
participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall
be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or
out of any other Transaction Documents, and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding
for such purpose.
[Signature Page Follows]
IN WITNESS WHEREOF,
each Buyer and the Company have caused their respective signature page to this Securities Purchase Agreement to be duly executed as of
the date first written above.
COMPANY: |
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SOLIDION TECHNOLOGY INC. |
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By: |
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Name: |
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Title: |
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[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF,
each Buyer and the Company have caused their respective signature page to this Securities Purchase Agreement to be duly executed as of
the date first written above.
[Signature Page to Securities Purchase Agreement]
SCHEDULE OF BUYERS
Provided separately
EXHIBITS
Exhibit A |
Form of Pre-Funded Warrants |
Exhibit B |
Form of Series C Warrants |
Exhibit C |
Form of Series D Warrants |
Exhibit D |
Form of Registration Rights Agreement |
Exhibit E |
Form of Voting Agreement |
32
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
(this “Agreement”), dated as of [●], 2024, by and among Solidion Technology, Inc., a Delaware corporation, with
headquarters located at 13355 Noel Rd, Suite 1100, Dallas, Texas (the “Company”), and the investors listed on the Schedule
of Buyers attached hereto (each, a “Buyer” and collectively, the “Buyers”).
WHEREAS:
A. In connection with the Securities
Purchase Agreement by and among the parties hereto of even date herewith (the “Securities Purchase Agreement”), the
Company has agreed, upon the terms and subject to the conditions of the Securities Purchase Agreement, to issue and sell to each Buyer,
units consisting of (i) shares (the “Purchased Shares”) of the Company’s Common Shares, par value $0.0001 per
share (the “Common Shares”), and/or pre-funded warrants (the “Pre-Funded Warrants”) to purchase
Common Shares (such underlying Common Shares, the “Pre-Funded Warrant Shares”) in accordance with the terms of the
Pre-Funded Warrants and (ii) two (2) series of warrants (the “Series C and Series D Warrants” and together with the
Pre-Funded Warrants, the “Warrants”) to purchase Common Shares (such underlying Common Shares, collectively, the “Series
C and Series D Warrant Shares” and together with the Pre-Funded Warrant Shares, the “Warrant Shares”) in
accordance with the terms of the Series C and Series D Warrants.
B. In accordance with the terms
of the Securities Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “1933 Act”),
and applicable state securities laws.
NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and each of the Buyers hereby agree as follows:
1. Definitions.
Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement. As used in this Agreement,
the following terms shall have the following meanings:
(a) “Additional Effective
Date” means the date the Additional Registration Statement is declared effective by the SEC.
(b) “Additional Effectiveness
Deadline” means the date which is the earlier of (i) in the event that the Additional Registration Statement (x) is not subject
to a full review by the SEC, the date which is thirty (30) calendar days after the earlier of the Additional Filing Date and the Additional
Filing Deadline or (y) is subject to a full review by the SEC, the date which is sixty (60) calendar days after the earlier of the Additional
Filing Date and the Additional Filing Deadline and (ii) the fifth (5th) Business Day after the date the Company is notified (orally or
in writing, whichever is earlier) by the SEC that such Additional Registration Statement will not be reviewed or will not be subject to
further review; provided, however, that if the Additional Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC
is closed for business, the Additional Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for
business.
(c) “Additional Filing
Date” means the date on which the Additional Registration Statement is filed with the SEC.
(d) “Additional Filing
Deadline” means if Cutback Shares are required to be included in any Additional Registration Statement, the later of (i) the
date sixty (60) days after the date substantially all of the Registrable Securities registered under the immediately preceding Registration
Statement are sold and (ii) the date six (6) months from the Initial Effective Date or the most recent Additional Effective Date, as applicable.
(e) “Additional Registrable
Securities” means, (i) any Cutback Shares not previously included on a Registration Statement, and (ii) any capital stock of
the Company issued or issuable with respect to the Purchased Shares, the Warrants, the Warrant Shares or the Cutback Shares, as applicable,
as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitations
on exercise of the Warrants.
(f) “Additional Registration
Statement” means a registration statement or registration statements of the Company filed under the 1933 Act covering the resale
any Additional Registrable Securities.
(g) “Additional Required
Registration Amount” means any Cutback Shares not previously included on a Registration Statement, all subject to adjustment
as provided in Section 2(f), without regard to any limitations on the exercise of the Warrants.
(h) “Business Day”
means any day other than Saturday, Sunday or any other day on which commercial banks in the City of New York are authorized or required
by law to remain closed.
(i) “Closing Date”
shall have the meaning set forth in the Securities Purchase Agreement.
(j) “Cutback Shares”
means any of the Initial Required Registration Amount or the Additional Required Registration Amount of Registrable Securities not included
in all Registration Statements previously declared effective hereunder as a result of a limitation on the maximum number of Common Shares
of the Company permitted to be registered by the staff of the SEC pursuant to Rule 415. For the purpose of determining the Cutback Shares,
in order to determine any applicable Required Registration Amount, unless an Investor gives written notice to the Company to the contrary
with respect to the allocation of its Cutback Shares, first the Warrant Shares shall be excluded on a pro rata basis among the Investors
until all of the Warrant Shares have been excluded and second the Purchased Shares shall be excluded on a pro rata basis among the Investors
until all of the Purchased Shares have been excluded.
(k) Intentionally omitted.
(l) “effective”
and “effectiveness” refer to a Registration Statement that has been declared effective by the SEC and is available
for the resale of the Registrable Securities required to be covered thereby.
(m) “Effective Date”
means the Initial Effective Date and the Additional Effective Date, as applicable.
(n) “Effectiveness
Deadline” means the Initial Effectiveness Deadline and the Additional Effectiveness Deadline, as applicable.
(o) “Eligible Market”
means the Principal Market, The New York Stock Exchange, Inc., the NYSE American, The NASDAQ Global Select Market, The Nasdaq
Global Market, OTC QB or OTC QX.
(p) “Filing Deadline”
means the Initial Filing Deadline and the Additional Filing Deadline, as applicable.
(q) “Initial Effective
Date” means the date that the Initial Registration Statement has been declared effective by the SEC.
(r) “Initial Effectiveness
Deadline” means the date which is the earlier of (x) (i) in the event that the Initial Registration Statement is not subject
to a full review by the SEC, fifty (50) calendar days after the Closing Date or (ii) in the event that the Initial Registration Statement
is subject to a full review by the SEC or in the event that the Company is notified by the SEC to refile the Initial Registration Statement
on Form S-1, seventy (70) calendar days after the Closing Date and (y) the fifth (5th) Business Day after the date the Company is notified
(orally or in writing, whichever is earlier) by the SEC that such Initial Registration Statement will not be reviewed or will not be subject
to further review; provided, however, that if the Initial Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC
is closed for business, the Initial Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business.
(s) “Initial Filing
Date” means the date on which the Initial Registration Statement is filed with the SEC.
(t) “Initial Filing
Deadline” means the date which is twenty (20) Trading Days after the Closing Date.
(u) “Initial Registrable
Securities” means (i) the Purchased Shares issued, (ii) the Warrant Shares issued or issuable upon exercise of the Warrants
and (iii) any capital stock of the Company issued or issuable with respect to the Purchased Shares, the Warrant Shares or the Warrants,
in each case as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard
to any limitations on the exercise of the Warrants.
(v) “Initial Registration
Statement” means a registration statement or registration statements of the Company filed under the 1933 Act covering the resale
of Initial Registrable Securities.
(w) “Initial Required
Registration Amount” means the sum of (i) the number of Purchased Shares issued and (ii) the maximum number of Warrant Shares
issued and issuable pursuant to the Warrants without giving effect to any limitation on exercise set forth therein and, assuming with
respect to the Series D Warrants, that the Maximum Eligibility Number is determined based on a Reset Price equal to $0.065 (as adjusted
for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar
events occurring after the date hereof), each as of the Trading Day immediately preceding the applicable date of determination and all
subject to adjustment as provided in Section 2(f), without regard to any limitations on the exercise of the Warrants.
(x) “Investor”
means a Buyer or any transferee or assignee thereof to whom a Buyer assigns its rights under this Agreement and who agrees to become bound
by the provisions of this Agreement in accordance with Section 9 and any transferee or assignee thereof to whom a transferee or assignee
assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section
9.
(y) “Maximum Eligibility
Number” shall have the meaning set forth in the Series D Warrants.
(z) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization
and a government or any department or agency thereof.
(aa) “Principal Market”
means The Nasdaq Global Market.
(bb) “register,”
“registered,” and “registration” refer to a registration effected by preparing and filing one or
more Registration Statements (as defined below) in compliance with the 1933 Act and pursuant to Rule 415, and the declaration or ordering
of effectiveness of such Registration Statement(s) by the SEC.
(cc) “Registrable
Securities” means the Initial Registrable Securities and the Additional Registrable Securities.
(dd) “Registration
Statement” means the Initial Registration Statement and the Additional Registration Statement, as applicable.
(ee) “Required Holders”
means the holders of at least a majority of the Registrable Securities.
(ff) “Required
Registration Amount” means either the Initial Required Registration Amount or the Additional Required Registration Amount, as
applicable.
(gg) “Reset Price”
shall have the meaning set forth in the Series D Warrants.
(hh) “Rule 415”
means Rule 415 promulgated under the 1933 Act or any successor rule providing for offering securities on a continuous or delayed basis.
(ii) “SEC”
means the United States Securities and Exchange Commission.
(jj) “Series D Warrants”
shall have the meaning set forth in the Securities Purchase Agreement.
(kk) “Trading Day”
means any day on which the Common Shares are traded on the Principal Market, or, if the Principal Market is not the principal trading
market for the Common Shares on such day, then on the principal securities exchange or securities market on which the Common Shares are
then traded.
2. Registration.
(a) Initial Mandatory Registration.
The Company shall prepare, and, as soon as practicable but in no event later than the Initial Filing Deadline, file with the SEC the Initial
Registration Statement on Form S-1 covering the resale of all of the Initial Registrable Securities. The Initial Registration Statement
prepared pursuant hereto shall register for resale at least the number of Common Shares equal to the Initial Required Registration Amount
determined as of the date the Initial Registration Statement is initially filed with the SEC, subject to adjustment as provided in Section
2(f). The Company shall use its reasonable best efforts to have the Initial Registration Statement declared effective by the SEC as soon
as practicable, but in no event later than the Initial Effectiveness Deadline. By 9:30 a.m. New York time on the second (2nd)
Business Day following the Initial Effective Date, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act
the final prospectus to be used in connection with sales pursuant to such Initial Registration Statement.
(b) Additional Mandatory
Registrations. The Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file
with the SEC an Additional Registration Statement on Form S-1 covering the resale of all of the Additional Registrable Securities not
previously registered on an Additional Registration Statement hereunder. To the extent the staff of the SEC does not permit the Additional
Required Registration Amount to be registered on an Additional Registration Statement, the Company shall file Additional Registration
Statements successively trying to register on each such Additional Registration Statement the maximum number of remaining Additional Registrable
Securities until the Additional Required Registration Amount has been registered with the SEC. Each Additional Registration Statement
prepared pursuant hereto shall register for resale at least that number of Common Shares equal to the Additional Required Registration
Amount determined as of the date such Additional Registration Statement is initially filed with the SEC, subject to adjustment as provided
in Section 2(f). The Company shall use its reasonable best efforts to have each Additional Registration Statement declared effective by
the SEC as soon as practicable, but in no event later than the Additional Effectiveness Deadline. By 9:30 a.m. New York time on the Business
Day following the Additional Effective Date, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act the final
prospectus to be used in connection with sales pursuant to such Additional Registration Statement.
(c) Allocation of Registrable
Securities. The initial number of Registrable Securities included in any Registration Statement and any increase or decrease in the
number of Registrable Securities included therein shall be allocated pro rata among the Investors based on the number of Registrable Securities
held by each Investor at the time the Registration Statement covering such initial number of Registrable Securities or increase or decrease
thereof is declared effective by the SEC. In the event that an Investor sells or otherwise transfers any of such Investor’s Registrable
Securities, each transferee shall be allocated a pro rata portion of the then remaining number of Registrable Securities included in such
Registration Statement for such transferor. Any Common Shares included in a Registration Statement and which remain allocated to any Person
which ceases to hold any Registrable Securities covered by such Registration Statement shall be allocated to the remaining Investors,
pro rata based on the number of Registrable Securities then held by such Investors which are covered by such Registration Statement. In
no event shall the Company include any securities other than Registrable Securities on any Registration Statement without the prior written
consent of the Required Holders.
(d) Reserved.
(e) Ineligibility for Form
S-3. In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company
shall (i) register the resale of the Registrable Securities on Form S-1 or another appropriate form reasonably acceptable to the Required
Holders and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company
shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3
covering the Registrable Securities has been declared effective by the SEC.
(f) Sufficient Number of
Shares Registered. In the event the number of shares available under a Registration Statement filed pursuant to Section 2(a) or Section
2(b) is insufficient to cover the Required Registration Amount of Registrable Securities required to be covered by such Registration Statement
or an Investor’s allocated portion of the Registrable Securities pursuant to Section 2(c), the Company shall amend the applicable
Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to
cover at least the Required Registration Amount as of the Trading Day immediately preceding the date of the filing of such amendment or
new Registration Statement, in each case, as soon as practicable, but in any event not later than fifteen (15) days after the necessity
therefor arises. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof.
(g) Effect of Failure to
File and Obtain and Maintain Effectiveness of Registration Statement. If (i) the Initial Registration Statement when declared effective
fails to register the Initial Required Registration Amount of Initial Registrable Securities (a “Registration Failure”),
(ii) a Registration Statement covering all of the Registrable Securities required to be covered thereby and required to be filed by the
Company pursuant to this Agreement is (A) not filed with the SEC on or before the applicable Filing Deadline (a “Filing Failure”)
or (B) not declared effective by the SEC on or before the applicable Effectiveness Deadline, (an “Effectiveness Failure”)
or (iii) on any day after the applicable Effective Date sales of all of the Registrable Securities required to be included on such Registration
Statement cannot be made (other than during an Allowable Grace Period (as defined in Section 3(r)) pursuant to such Registration Statement
or otherwise (including, without limitation, because of the suspension of trading or any other limitation imposed by an Eligible Market,
a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant
to such Registration Statement, a failure to register a sufficient number of Common Shares or a failure to maintain the listing of the
Common Shares) (a “Maintenance Failure”) then, as partial relief for the damages to any holder by reason of any such
delay in or reduction of its ability to sell the underlying Common Shares (which remedy shall not be exclusive of any other remedies available
at law or in equity, including, without limitation, specific performance or the additional obligation of the Company to register any Cutback
Shares), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal
to two percent (2.0%) of the aggregate Purchase Price (as such term is defined in the Securities Purchase Agreement) of such Investor’s
Registrable Securities whether or not included in such Registration Statement on each of the following dates: (i) the day of a Registration
Failure and on each thirtieth Trading Day thereafter (pro-rated for periods totaling less than thirty Trading Days) until such Registration
Failure is cured, (ii) the day of a Filing Failure and on each thirtieth Trading Day thereafter (pro-rated for periods totaling less than
thirty Trading Days) until such Filing Failure is cured; (iii) the day of an Effectiveness Failure and on each thirtieth Trading Day thereafter
(pro-rated for periods totaling less than thirty Trading Days) until such Effectiveness Failure is cured; and (iv) the initial day of
a Maintenance Failure and on each thirtieth Trading Day thereafter (pro-rated for periods totaling less than thirty Trading Days) until
such Maintenance Failure is cured; provided, that aggregate amount of all Registration Delay Payments to all holders shall not exceed
$5,000 per Trading Day and ten percent (10%) of the aggregate Purchase Price (and such reduced amount will be distributed pro rata amongst
such holders based on the aggregate Purchase Price), and provided further, that for purposes of this sentence only, “Trading
Day” shall include only Trading Days on which the SEC’s EDGAR system accepts filings. Notwithstanding anything to the
contrary contained herein, no Registration Failure, Filing Failure, Effectiveness Failure or Maintenance Failure shall continue to accrue
Registration Delay Payments after the end of the Registration Period. For the avoidance of doubt, in the event of a simultaneous occurrence
of a Registration Failure, Filing Failure, Maintenance Failure or Effectiveness Failure, the Company shall only be required to make Registration
Delay Payments with respect to one such event. The payments to which a holder shall be entitled pursuant to this Section 2(g) are referred
to herein as “Registration Delay Payments.” Registration Delay Payments shall be paid on the earlier of (I) the dates
set forth above and (II) the third Business Day after the event or failure giving rise to the Registration Delay Payments is cured. In
the event the Company fails to make Registration Delay Payments in a timely manner, such Registration Delay Payments shall bear interest
at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full.
3. Related
Obligations.
At such time as the Company
is obligated to file a Registration Statement with the SEC pursuant to Section 2(a), 2(b), 2(e) or 2(f), the Company will use its reasonable
best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and,
pursuant thereto, the Company shall have the following obligations:
(a) The Company shall promptly
prepare and file with the SEC a Registration Statement with respect to the Registrable Securities and use its reasonable best efforts
to cause such Registration Statement relating to the Registrable Securities to become effective as soon as practicable after such filing
(but in no event later than the Effectiveness Deadline). The Company shall keep each Registration Statement effective pursuant to Rule
415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such
Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule
144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (ii) the date on which the Investors shall have sold all of the
Registrable Securities covered by such Registration Statement (the “Registration Period”). The Company shall ensure
that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements
therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. The term “best
efforts” shall mean, among other things, that the Company shall submit to the SEC, within two (2) Business Days after the Company
learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments
on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than two (2) Business Days after the submission of such request, unless the Company is directed to a submit
a request for acceleration of effectiveness of such Registration Statement to a later time and date by the SEC. The Company shall respond
in writing to comments made by the SEC in respect of a Registration Statement as soon as practicable, but in no event later than fifteen
(15) days after the receipt of comments by or notice from the SEC that an amendment is required in order for a Registration Statement
to be declared effective.
(b) The Company shall prepare
and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus
used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act,
as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period,
comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements
to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason
of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Securities Exchange Act of 1934,
as amended (the “1934 Act”), the Company shall have incorporated such report by reference into such Registration Statement,
if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created
the requirement for the Company to amend or supplement such Registration Statement.
(c) Reserved.
(d) The Company shall furnish
to each Investor whose Registrable Securities are included in any Registration Statement, without charge, (i) promptly after the same
is prepared and filed with the SEC, at least one copy of such Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary
prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii)
such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time
in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(e) The Company shall use
its reasonable best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by
Investors of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws
of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect
at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable
Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e),
(y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.
The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue
sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding
for such purpose.
(f) The Company shall notify
each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event but in any event
on the same Trading Day as such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes
an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain
any material, nonpublic information), and, subject to Section 3(r), promptly prepare a supplement or amendment to such Registration Statement
to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to each Investor (or such other
number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a
prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective
amendment has become effective (notification of such effectiveness shall be delivered to each Investor by facsimile or email on the same
day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement
or related prospectus or related information and (iii) of the Company’s reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate. By 9:30 a.m. New York City time on the date following the date any post-effective amendment
has become effective, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used
in connection with sales pursuant to such Registration Statement.
(g) The Company shall use
its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement,
or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension
is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify each Investor who holds
Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation
or threat of any proceeding for such purpose.
(h) If any Investor is required
under applicable securities laws to be described in the Registration Statement as an underwriter or an Investor believes that it could
reasonably be deemed to be an underwriter of Registrable Securities, at the reasonable request of such Investor, the Company shall furnish
to such Investor, on the date of the effectiveness of the Registration Statement and thereafter from time to time on such dates as an
Investor may reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form
and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering,
addressed to the Investors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Investors.
(i) If any Investor is required
under applicable securities laws to be described in the Registration Statement as an underwriter or an Investor believes that it could
reasonably be deemed to be an underwriter of Registrable Securities, the Company shall make available for inspection by such Investor
all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”),
as shall be reasonably deemed necessary by such Investor, and cause the Company’s officers, directors and employees to supply all
information which any Investor may reasonably request; provided, however, that each Investor shall agree to hold in strict confidence
and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good
faith to be confidential, and of which determination the Investors are so notified, unless (a) the disclosure of such Records is necessary
to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release
of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction,
or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this Agreement.
Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other
confidentiality agreement between the Company and any Investor) shall be deemed to limit the Investors’ ability to sell Registrable
Securities in a manner which is otherwise consistent with applicable laws and regulations.
(j) The Company shall hold
in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena
or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made
generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that
it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor’s
expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall use
its reasonable best efforts either to (i) cause all of the Registrable Securities covered by a Registration Statement to be listed on
each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing
of such Registrable Securities is then permitted under the rules of such exchange or (ii) secure the inclusion for quotation of all of
the Registrable Securities on the Principal Market or (iii) if, despite the Company’s reasonable best efforts, the Company is unsuccessful
in satisfying the preceding clauses (i) and (ii), to secure the inclusion for quotation on an Eligible Market for such Registrable Securities
and, without limiting the generality of the foregoing, to use its reasonable best efforts to arrange for at least two market makers to
register with the Financial Industry Regulatory Authority, Inc. as such with respect to such Registrable Securities. The Company shall
pay all fees and expenses in connection with satisfying its obligation under this Section 3(k).
(l) The Company shall cooperate
with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration
Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request
and registered in such names as the Investors may request.
(m) If requested by an Investor,
the Company shall as soon as practicable (i) incorporate in a prospectus supplement or post-effective amendment such information as an
Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor
and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such
prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement
or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by an Investor
holding any Registrable Securities.
(n) The Company shall use
its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(o) The Company shall make
generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered
thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the 1933 Act)
covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the applicable
Effective Date of a Registration Statement.
(p) The Company shall otherwise
use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(q) Within two (2) Business
Days after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investors
whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared
effective by the SEC.
(r) Notwithstanding anything
to the contrary herein, at any time after the Effective Date, the Company may delay the disclosure of material, non-public information
concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company
and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace
Period”); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of material, non-public
information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public
information to the Investors) and the date on which the Grace Period will begin, and (ii) notify the Investors in writing of the date
on which the Grace Period ends; and, provided further, that no Grace Period shall exceed sixty (60) consecutive days and during any three
hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of ninety (90) days and the first day of any Grace
Period must be at least five (5) Trading Days after the last day of any prior Grace Period (each, an “Allowable Grace Period”).
For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive
the notice referred to in clause (i) and shall end on and include the later of the date the Investors receive the notice referred to in
clause (ii) and the date referred to in such notice. Upon expiration of the Grace Period, the Company shall again be bound by the first
sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer
applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended Common Shares to
a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of Registrable
Securities with respect to which an Investor has entered into a contract for sale, prior to the Investor’s receipt of the notice
of a Grace Period and for which the Investor has not yet settled.
(s) Neither the Company nor
any Subsidiary or affiliate thereof shall identify any Investor as an underwriter in any public disclosure or filing with the SEC, the
Principal Market or any Eligible Market and any Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations
it has under this Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement).
(t) Neither the Company nor
any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after the date of
this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to
the Buyers in this Agreement or otherwise conflicts with the provisions hereof.
4. Obligations
of the Investors.
(a) At least five (5) Business
Days prior to the Initial Filing Date of a Registration Statement, the Company shall notify each Investor in writing of the information
the Company requires from each such Investor if such Investor elects to have any of such Investor’s Registrable Securities included
in such Registration Statement. It shall be a condition precedent to the obligations of the Company to complete any registration pursuant
to this Agreement with respect to the Registrable Securities of a particular Investor that such Investor shall furnish to the Company
such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect and maintain the effectiveness of the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the Company may reasonably request.
(b) Each Investor, by such
Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of any Registration Statement hereunder, unless such Investor has notified the Company in
writing of such Investor’s election to exclude all of such Investor’s Registrable Securities from such Registration Statement.
(c) Each Investor agrees that,
upon receipt of any notice from the Company of the happening of any event of the kind described in the first sentence of Section 3(f),
such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until such Investor’s receipt of copies of the supplemented or amended prospectus as contemplated by the
first sentence of Section 3(f) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary,
the Company shall cause its transfer agent to deliver unlegended Common Shares to a transferee of an Investor in accordance with the terms
of the Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered
into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind
described in the first sentence of Section 3(f) and for which the Investor has not yet settled.
(d) Each Investor covenants
and agrees that it will comply with the prospectus delivery requirements of the 1933 Act as applicable to it or an exemption therefrom
in connection with sales of Registrable Securities pursuant to the Registration Statement.
5. Expenses
of Registration.
All reasonable expenses, other
than underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant to Sections
2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, and fees and
disbursements of counsel for the Company shall be paid by the Company.
6. Indemnification.
In the event any Registrable
Securities are included in a Registration Statement under this Agreement:
(a) To the fullest extent
permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor, the directors, officers, partners,
members, employees, agents, representatives of, and each Person, if any, who controls any Investor within the meaning of the 1933 Act
or the 1934 Act (each, an “Indemnified Person”), against any losses, claims (including causes of action, suits or claims
asserted directly by or between an Indemnitee and the Company), damages, liabilities, judgments, fines, penalties, charges, costs, reasonable
attorneys’ fees, amounts paid in settlement or expenses, joint or several (collectively, “Claims”), incurred
in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing
by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether
or not an indemnified party is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject
insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto
or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of
any jurisdiction in which Registrable Securities are offered, or the omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus if used prior to the Effective Date of such Registration Statement, or contained
in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading, (iii) any violation or alleged violation by the Company of the 1933 Act,
the 1934 Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to
the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv) any violation of this Agreement (the matters
in the foregoing clauses (i) through (iv) being, collectively, “Violations”). Subject to Section 6(c), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising
out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company
by such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof
or supplement thereto, if such prospectus was timely made available by the Company pursuant to Section 3(d); (ii) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not
be unreasonably withheld or delayed ; and (iii) shall not apply to amounts paid in settlement of any direct Claim by or between an Indemnitee
and the Company. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9.
(b) In connection with any
Registration Statement in which an Investor is participating, each such Investor agrees to severally and not jointly indemnify, hold harmless
and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act (each, an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and, subject to
Section 6(c), such Investor shall reimburse the Indemnified Party for any legal or other expenses reasonably incurred by an Indemnified
Party in connection with investigating or defending any such Claim; provided, however, that the indemnity agreement contained in this
Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld
or delayed; provided, further, however, that the Investor shall be liable under this Section 6(b) for only that amount of a Claim or Indemnified
Damages as does not exceed the net proceeds to such Investor as a result of the sale of Registrable Securities pursuant to such Registration
Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9.
(c) Promptly after receipt
by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action or proceeding (including
any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement
thereof, and, except in the case of a direct Claim, for which the remainder of this Section 6(c) shall not apply, the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be; provided, however, that an Indemnified Person or Indemnified Party shall have the
right to retain its own counsel with the fees and expenses of not more than one counsel for all such Indemnified Person or Indemnified
Party to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the Indemnified Person or Indemnified
Party, as applicable, the representation by such counsel of the Indemnified Person or Indemnified Party, as the case may be, and the indemnifying
party would be inappropriate due to actual differing interests between such Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding. In the case of an Indemnified Person, legal counsel referred to in the immediately preceding
sentence shall be selected by the Investors holding at least a majority in interest of the Registrable Securities included in the Registration
Statement to which the Claim relates. The Indemnified Party or Indemnified Person shall reasonably cooperate with the indemnifying party
in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the Indemnified Party or Indemnified Person which relates to such action or Claim. The indemnifying
party shall keep the Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected
without its prior written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition
its consent. No indemnifying party shall, without the prior written consent of the Indemnified Party or Indemnified Person, consent to
entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such Claim
or litigation and such settlement shall not include any admission as to fault on the part of the Indemnified Party or Indemnified Person.
Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party
or Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been
made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action
shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except
to the extent that the indemnifying party is prejudiced in its ability to defend such action by such lack of notice.
(d) The indemnification required
by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when
bills are received or Indemnified Damages are incurred.
(e) The indemnity agreements
contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.
7. Contribution.
To the extent any indemnification
by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale
of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities
shall be limited in amount to the amount of net proceeds received by such seller from the sale of such Registrable Securities pursuant
to such Registration Statement.
8. Reports
Under the 1934 Act.
With a view to making available
to the Investors the benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or regulation of the SEC that may at
any time permit the Investors to sell securities of the Company to the public without registration (“Rule 144”), the
Company agrees to:
(a) make and keep public information
available, as those terms are understood and defined in Rule 144;
(b) file with the SEC in a
timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144;
and
(c) furnish to each Investor
so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it
has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the Company and (iii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule 144 without registration.
9. Assignment
of Registration Rights.
The rights under this Agreement
shall be automatically assignable by the Investors to any transferee of all or any portion of such Investor’s Registrable Securities
if: (i) the Investor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished
to the Company within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which
such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the 1933 Act or applicable state securities laws; (iv) at or before
the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained herein; and (v) such transfer shall have been made in accordance with
the applicable requirements of the Securities Purchase Agreement.
10. Amendment
of Registration Rights.
Provisions of this Agreement
may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively),
only with the written consent of the Company and the Required Holders; provided that any such amendment or waiver that complies with the
foregoing but that disproportionately, materially and adversely affects the rights and obligations of any Investor relative to the comparable
rights and obligations of the other Investors shall require the prior written consent of such adversely affected Investor. Any amendment
or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company. No such amendment shall be
effective to the extent that it applies to less than all of the holders of the Registrable Securities. No consideration shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration
(other than the reimbursement of legal fees) also is offered to all of the parties to this Agreement.
11. Miscellaneous.
(a) A Person is deemed to
be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the
Company shall act upon the basis of instructions, notice or election received from such record owner of such Registrable Securities.
(b) Any notices, consents,
waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when sent by facsimile (provided confirmation
of transmission is mechanically or electronically generated and kept on file by the sending party), (iii) upon delivery, when sent by
electronic mail (provided that the sending party does not receive an automated rejection notice); or (iv) one Business Day after deposit
with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses,
facsimile numbers and e-mail addresses for such communications shall be:
If to the Company:
Solidion Technology, Inc.
One Galleria Tower
13355 Noel Road Suite 1100
Dallas, TX 75240
Attn: Jaymes Winters
E-mail: jaymes@nubiabrand.us
With a copy (for informational purposes
only) to:
Loeb & Loeb LLP
345 Park Ave,
New York, NY 10154
Attn: Alex Weniger-Araujo
E-mail: aweniger@loeb.com
If to a Buyer, to its address, facsimile number
or email address set forth on the Schedule of Buyers attached hereto, with copies to such Buyer’s representatives as set forth on
the Schedule of Buyers, or to such other address, facsimile number and/or email address to the attention of such other Person as the recipient
party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation
of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine or e-mail transmission containing the time, date, recipient facsimile number or e-mail address
and an image of the first page of such transmission or (C) provided by a courier or overnight courier service shall be rebuttable evidence
of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause
(i), (ii) or (iii) above, respectively.
(c) Failure of any party to
exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate
as a waiver thereof.
(d) All questions concerning
the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) If any provision of this
Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be
valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions
of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the
parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does
not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits
that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid
or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid
or unenforceable provision(s).
(f) This Agreement, the other
Transaction Documents (as defined in the Securities Purchase Agreement) and the instruments referenced herein and therein constitute the
entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement, the other Transaction Documents
and the instruments referenced herein and therein supersede all prior agreements and understandings among the parties hereto with respect
to the subject matter hereof and thereof.
(g) Subject to the requirements
of Section 9, this Agreement shall inure to the benefit of and be binding upon the permitted successors and assigns of each of the parties
hereto.
(h) The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) This Agreement may be
executed in identical counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
(j) Each party shall do and
perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k) All consents and other
determinations required to be made by the Investors pursuant to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders, determined as if all of the Warrants held by Investors then outstanding have been exercised for Registrable Securities
without regard to any limitations on exercise of the Warrants.
(l) The language used in this
Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will
be applied against any party.
(m) This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
(n) The obligations of each
Investor hereunder are several and not joint with the obligations of any other Investor, and no provision of this Agreement is intended
to confer any obligations on any Investor vis-à-vis any other Investor. Nothing contained herein, and no action taken by any Investor
pursuant hereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated herein.
* * * * * *
[Signature Page Follows]
IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the
date first written above.
COMPANY: |
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SOLIDION TECHNOLOGY, INC. |
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By: |
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Name: Jaymes Winters |
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Title: Chief Executive Officer |
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[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the
date first written above.
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the
date first written above.
[Signature Page to Registration Rights Agreement]
SCHEDULE OF BUYERS
Buyer | |
Buyer Address, Facsimile Number and E-mail | | |
Buyer’s Representative’ Address, Facsimile Number and E-Mail | |
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19
Exhibit 10.3
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this
“Agreement”) is dated as of [●], 2024, by and between the person or entity identified on the signature page hereto
as the “Holder” (the “Holder”), and Solidion Technology, Inc., a Delaware corporation (the “Company”).
Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement (as defined
below).
BACKGROUND
A. The Company has entered
into a Securities Purchase Agreement, dated of even date herewith (the “Purchase Agreement”), with the Lead Investor
and the other investors party thereto (collectively, the “Investors”).
B. The Holder is the record
and/or beneficial owner of the number of shares of Common Shares set forth on the signature page hereto.
D. As a condition of, and
as a material inducement for the Investors to enter into and consummate the transactions contemplated by the Purchase Agreement, the Holder
has agreed to execute and deliver this Agreement.
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. Lock-Up.
(a) During the Lock-up Period
(as defined below), the Holder irrevocably agrees that it will not offer, sell, agree to offer or sell, solicit offers to purchase, convert,
contract to sell, pledge, encumber, assign, borrow, or otherwise dispose of, directly or indirectly, any of the Lock-up Shares (as defined
below), enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of such Lock-up Shares, whether any of these transactions are to be settled
by delivery of any such Lock-up Shares, in cash or otherwise, publicly disclose the intention to make any offer, sale, pledge or disposition,
or to enter into any transaction, swap, hedge or other arrangement, or engage in any Short Sales (as defined below) with respect to any
security of the Company (these actions, collectively, “Transfer”).
(b) In furtherance of the foregoing,
the Company will (i) place a stop order on all Lock-up Shares, including those that may be covered by a registration statement, and (ii)
notify the Company’s transfer agent in writing of the stop order and the restrictions on such Lock-up Shares under this Agreement
and direct the Company’s transfer agent not to process any attempts by the Holder to resell or transfer any Lock-up Shares, except
in compliance with this Agreement. Immediately upon expiration of the Lock-Up Period, the Company shall remove and reverse all such stop
orders and transfer agent instructions promptly.
(c) For purposes hereof, “Short
Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all types of direct and indirect stock pledges,
forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated brokers.
(d) For purpose of this Agreement,
the “Lock-up Period” means the period commencing at the Trigger Date and ending on the date that is ninety (90) days
after the Trigger Date.
The restrictions set forth herein
shall not apply to:
(1) Transfers or distributions
to the Holder’s current or former general or limited partners, managers or members, stockholders, other equity holders or direct
or indirect affiliates (within the meaning of Rule 405 under the Securities Act of 1933, as amended);
(2) Transfers by bona fide gift
to a member of the Holder’s immediate family or to a trust, the beneficiary of which is the Holder or a member of the Holder’s
immediate family or to a charitable organization;
(3) by virtue of the laws of
descent and distribution upon death of the Holder;
(4) by operation of law or pursuant
to a court order, such as a qualified domestic relations order, divorce decree or separation agreement;
(5) Transfers to a partnership,
limited liability company or other entity of which the Holder and/or the Holder’s immediate family are the legal and beneficial
owner of all of the outstanding equity securities or similar interests;
(6) in the case of an entity
that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust;
(7) the entry, by the Holder
of any trading plan providing for the sale of Common Shares by the Holder, which trading plan meets the requirements of Rule 10b5-1(c)
under the Exchange Act, provided, however, that such plan does not provide for, or permit, the sale of any Common Shares
during the Lock-up Period and no public announcement or filing is voluntarily made or required to be made regarding such plan during the
Lock-up Period; and
(8) Transfers of no more
than five percent (5%) of the total Lock-Up Shares in the aggregate taking into account all Transfers during the Lock-Up Period
(provided that total Transfers during any period of five (5) consecutive Trading Days shall not exceed five percent (5%) of the
daily average trading volume of Company Shares over the immediately preceding five Trading Days; and in the case of clauses (1)
through (6) where such transferee agrees to be bound in writing by the terms of this Agreement.
For purposes of this Agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
In addition, after the Closing Date, if there
is a Change of Control, then upon the consummation of such Change of Control, all Lock-up Shares shall be released from the restrictions
contained herein. A “Change of Control” means: (a) the sale of all or substantially all of the consolidated assets
of the Company and the Company’s Subsidiaries to a third-party purchaser; (b) a sale resulting in a majority or more of the voting
power of the Company being held by Persons or a Group that did not own a majority of the voting power of the Company prior to such sale;
or (c) a merger, consolidation, recapitalization or reorganization of the Company with or into a third-party purchaser that results in
the inability of the pre-transaction equity holders to designate or elect a majority of the board of directors (or its equivalent) of
the resulting entity or its parent company.
2. Representations and
Warranties. Each of the parties hereto, by their respective execution and delivery of this Agreement, hereby represents and warrants
to the others and to all third party beneficiaries of this Agreement that (a) such party has the full right, capacity and authority to
enter into, deliver and perform its respective obligations under this Agreement, (b) this Agreement has been duly executed and delivered
by such party and is a binding and enforceable obligation of such party, enforceable against such party in accordance with the terms of
this Agreement, subject to the Enforceability Exceptions, and (c) the execution, delivery and performance of such party’s obligations
under this Agreement will not conflict with or breach the terms of any other agreement, contract, commitment or understanding to which
such party is a party or to which the assets or securities of such party are bound. The undersigned acknowledges that the execution, delivery
and performance of this Agreement is a material inducement to each of the parties to the Purchase Agreement to complete the transactions
contemplated by the Purchase Agreement and the Company shall be entitled to specific performance of the undersigned’s obligations
hereunder.
3. Beneficial Ownership.
The Holder hereby represents and warrants that it does not beneficially own, directly or through its nominees (as determined in accordance
with Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder), (i) any Common Shares or any Securities
exercisable for, exchangeable for, or convertible into Common Shares, or any economic interest in or derivative of such securities, or
(ii) any Common Shares or any securities of the Company exercisable for, exchangeable for, or convertible into Common Shares, or any economic
interest in or derivative of such securities, other than those securities specified on the signature page hereto. For purposes of this
Agreement, the shares of Common Shares beneficially owned by the Holder as of the Closing Date are collectively referred to as the “Lock-up
Shares.”
4. No Additional Fees/Payment.
Other than the consideration specifically referenced herein, the parties hereto agree that no fee, payment or additional consideration
in any form has been or will be paid to the Holder in connection with this Agreement.
5. Termination of the Purchase
Agreement. This Agreement shall be binding upon the parties in accordance with Section 8 hereof, but this Agreement shall only become
effective upon the Closing. Notwithstanding anything to the contrary contained herein, in the event that the Purchase Agreement is terminated
in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void, and the parties
shall not have any rights or obligation hereunder.
6. Notices. Any notices
required or permitted to be sent hereunder shall be given in writing, addressed as specified below, and shall be deemed given: (a) if
by hand or recognized courier service, (i) if delivered by 5:00 PM Eastern Time on a Business Day, on the date of delivery, and (ii) otherwise
on the first Business Day after such delivery; (b) if by electronic mail or facsimile, on the date of transmission with affirmative confirmation
of receipt; or (c) three Business Days after mailing by prepaid certified or registered mail, return receipt requested. Notices shall
be addressed to the respective parties as follows (excluding telephone numbers, which are for convenience only), or to such other address
as a party shall specify to the others in accordance with these notice provisions:
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(a) |
If to the Company, to: |
Solidion Technology, Inc.
One Galleria Tower
13355 Noel Road Suite 1100
Dallas, TX 75240
Attn: Jaymes Winters
E-mail: jaymes@nubiabrand.us
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(b) |
If to the Holder, to the address set forth on the Holder’s signature page hereto. |
or to such other address as any party may have
furnished to the others in writing in accordance herewith.
7. Captions and Headings.
The captions and headings contained in this Agreement are for convenience of reference only and shall not control or affect the meaning
or construction of any of the provisions of this Agreement.
8. Counterparts; Electronic
Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall together
constitute one and the same agreement. This Agreement shall become effective upon delivery to each party of an executed counterpart or
the earlier delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not
individually) bear the signatures of all other parties.
9. Successors and Assigns.
This Agreement and the terms, covenants, provisions and conditions hereof shall be binding upon, and shall inure to the benefit of, the
respective heirs, successors and assigns of the parties hereto. The Holder hereby acknowledges and agrees that this Agreement is entered
into for the benefit of and is enforceable by the Company and its successors and assigns.
10. Severability. A
determination by a court or other legal authority that any provision of this Agreement is invalid, illegal or unenforceable shall not
affect the validity or enforceability of any other term or provision hereof. The parties shall cooperate in good faith to modify (or cause
such court or other legal authority to modify) this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest
extent possible.
11. Amendment. This
Agreement may be amended or modified (and performance hereof may be waived) by written agreement executed by each of the parties hereto
(subject to the prior consent of the Lead Investor).
12. Further Assurances.
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
13. No Strict Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party.
14. Governing Law.
The terms and provisions of this Agreement shall be construed in accordance with the laws of the State of New York.
15. Controlling Agreement.
To the extent the terms of this Agreement (as amended, supplemented, restated or otherwise modified from time to time) directly conflicts
with a provision in the Purchase Agreement, the terms of this Agreement shall control.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
SOLIDION TECHNOLOGY, INC. |
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By: |
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Name: |
Jaymes Winters |
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Title: |
Chief Executive Officer |
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[Signature Page to Lock-up Agreement]
[Signature Page to Lock-up Agreement]
6
Exhibit 10.4
VOTING
AGREEMENT
VOTING AGREEMENT, dated as
of [●], 2024 (this “Agreement”), by and between Solidion Technology Inc., a Delaware corporation with offices
located at 13355 Noel Rd, Suite 1100, Dallas, Texas (the “Company”) and the stockholders whose names appear on the
signature pages hereto (each, a “Stockholder” and collectively, the “Stockholders”).
WHEREAS, the Company and certain
investors (each, an “Investor”, and collectively, the “Investors”) have entered into a Securities
Purchase Agreement, dated as of [●], 2024 (the “Securities Purchase Agreement”), pursuant to which, among other
things, the Company has agreed to issue and sell to the Investors and the Investors have, severally but not jointly, agreed to purchase:
(i) shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”), and/or pre-funded warrants
to purchase shares of Common Stock, (ii) Series C warrants to purchase shares of Common Stock, and (iii) Series D warrants to purchase
shares of Common Stock;
WHEREAS, as of the date hereof,
the Stockholders beneficially own shares of Common Stock (the “Stockholder Shares”), which represent approximately
73.39% of the total issued and outstanding Common Stock of the Company; and
WHEREAS, as a condition to
the willingness of each Investor to enter into the Securities Purchase Agreement and to consummate the transactions contemplated thereby
(collectively, the “Transaction”), the Investors have required that the Stockholders agree, and in order to induce
each Investor to enter into the Securities Purchase Agreement, the Stockholders have agreed, to enter into this Agreement with respect
to all the Stockholder Shares now owned and which may hereafter be acquired by the Stockholders and any other securities of the Company
(the “Other Securities”, and together with the Stockholder Shares, the “Stockholder Securities”),
if any, which Stockholders are currently entitled to vote, or after the date hereof becomes entitled to vote, at any meeting of the stockholders
of the Company.
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
VOTING AGREEMENT OF THE STOCKHOLDERS
Section 1.01 Voting Agreement.
Subject to the last sentence of this Section 1.01, each of the Stockholders hereby agrees that at any meeting of the stockholders of the
Company, however called, and in any action by written consent of the Company’s stockholders, the Stockholders shall vote the Stockholder
Securities, which Stockholders are currently entitled to vote, or after the date hereof becomes entitled to vote, at any meeting of the
stockholders of the Company: (a) in favor of the Stockholder Approval (as defined in the Securities Purchase Agreement); and (b) against
any proposal or any other corporate action or agreement that would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Transaction Documents (as defined in the Securities Purchase Agreement) or which
could result in any of the conditions to the Company’s obligations under the Transaction Documents not being fulfilled. The Stockholders
acknowledge receipt and review of a copy of the Securities Purchase Agreement and the other Transaction Documents. The obligations of
the Stockholders under this Section 1.01 shall terminate immediately following the occurrence of the Stockholder Approval.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents
and warrants, severally but not jointly, to the Company and each of the Investors as follows:
Section 2.01 Authority
Relative to this Agreement. The Stockholder has all requisite power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered
by the Stockholder and constitutes a legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except (a) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect relating to, or affecting generally, the enforcement of creditors’ and other
obligees’ rights and (b) where the remedy of specific performance or other forms of equitable relief may be subject to certain equitable
defenses and principles and to the discretion of the court before which the proceeding may be brought.
Section 2.02 No Conflict.
(a) The execution and delivery of this Agreement by the Stockholder does not, and the performance of this Agreement by the Stockholder
shall not, (i) conflict with or violate any federal, state or local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which the Stockholder Securities owned by the Stockholder are bound or affected or (ii) result in
any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any
of the Stockholder Securities owned by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder or the Stockholder
Securities owned by the Stockholder is bound.
(b) The execution and delivery
of this Agreement by the Stockholder does not, and the performance of this Agreement by the Stockholder shall not, require any consent,
approval, authorization or permit of, or filing with or notification to, any governmental entity by the Stockholder.
Section 2.03 Title to the
Stock. As of the date hereof, the Stockholder is the owner of that number of shares of Common Stock set forth next to its signature
hereto, entitled to vote, without restriction, on all matters brought before holders of capital stock of the Company. Such shares of Common
Stock are all the securities of the Company owned, either of record or beneficially, by the Stockholder. Such Common Stock is owned free
and clear of all Encumbrances (as defined below). The Stockholder has not appointed or granted any proxy, which appointment or grant is
still effective, with respect to the Common Stock or Other Securities owned by the Stockholder.
ARTICLE III
COVENANTS
Section 3.01 No Disposition
or Encumbrance of Stock. Each Stockholder hereby severally but not jointly covenants and agrees that the Stockholder shall not offer
or agree to sell, transfer, tender, assign, hypothecate or otherwise dispose of, grant a proxy or power of attorney with respect to, or
create or permit to exist any security interest, lien, claim, pledge, option, right of first refusal, agreement, limitation on the Stockholder’s
voting rights, charge or other encumbrance of any nature whatsoever (“Encumbrance”) with respect to the Stockholder
Securities, directly or indirectly, or initiate, solicit or encourage any person to take actions which could reasonably be expected to
lead to the occurrence of any of the foregoing.
Section 3.02 Company Cooperation.
The Company hereby covenants and agrees that it will not, and each Stockholder irrevocably and unconditionally acknowledges and agrees
that the Company will not (and waives any rights against the Company in relation thereto), recognize any Encumbrance or agreement (other
than this Agreement) on any of the Stockholder Securities subject to this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Further Assurances.
The Stockholders shall execute and deliver such further documents and instruments and take all further action as may be reasonably necessary
in order to consummate the transactions contemplated hereby.
Section 4.02 Specific Performance.
The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that any Investor (without being joined by any other Investor) shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or in equity. Any Investor shall be entitled to its reasonable attorneys’
fees in any action brought to enforce this Agreement in which it is the prevailing party.
Section 4.03 Entire Agreement.
This Agreement constitutes the entire agreement between the Company and the Stockholders (other than the Securities Purchase Agreement
and the other Transaction Documents) with respect to the subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, among the Company and the Stockholder with respect to the subject matter hereof.
Section 4.04 Amendment.
This Agreement may not be amended except by an instrument in writing signed by the parties hereto.
Section 4.05 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
Section 4.06 No Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns,
and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
Section 4.07 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of
New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the Borough
of Manhattan in the City of New York, New York, for the adjudication of any dispute hereunder or in connection herewith or under any of
the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The parties
consent to the jurisdiction and venue of the foregoing courts and consent that any process or notice of motion or other application to
any of said courts or a judge thereof may be served inside or outside the State of New York or the Southern District of New York by registered
mail, return receipt requested, directed to the party being served at its address set forth on the signature ages to this Agreement (and
service so made shall be deemed complete three (3) days after the same has been posted as aforesaid) or by personal service or in such
other manner as may be permissible under the rules of said courts. Each of the Company and the Stockholder irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action,
or proceeding brought in such a court and any claim that suit, action, or proceeding has been brought in an inconvenient forum. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Section 4.08 Termination.
This Agreement shall automatically terminate immediately following the occurrence of the Stockholder Approval.
[The remainder of the page is intentionally left
blank]
IN WITNESS WHEREOF, the Stockholder
and the Company have duly executed this Voting Agreement as of the date first written above.
THE COMPANY: |
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SOLIDION TECHNOLOGY INC. |
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By: |
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Name: |
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Title: |
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Address: 13355 Noel Rd, Suite 1100, Dallas, Texas |
STOCKHOLDERS: |
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By: |
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Name: |
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Title: |
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Shares:
Address:
Email:
4
Exhibit 99.1
Solidion Technology,
Inc. Announces Pricing of $4 Million Private Placement
DALLAS, TEXAS, Aug. 30, 2024 (GLOBE
NEWSWIRE) -- Solidion Technology, Inc., (the “Company,” “Solidion,” “we,” “our” or
“us”), an advanced battery technology solutions provider, today announced that it has entered into a securities purchase
agreement with institutional investors to raise approximately $4 million in aggregate cash proceeds, before deducting fees to the
placement agent and other offering expenses payable by the Company. The closing of the private placement is expected to occur on September
3, 2024, subject to the satisfaction of certain customary closing conditions set forth in the securities purchase agreement.
In connection with the private placement, the
Company will issue an aggregate of approximately 12,217,468 units and pre-funded units. The pre-funded units will be sold at the
same purchase price as the units, less the pre-funded warrant exercise price of $0.0001. Each unit and pre-funded unit will consist of
one share of common stock (or pre-funded warrant), two common warrants each exercisable for one share of common stock at an exercise price
of $0.3274 per share and one common warrant at an exercise price of $0.0001 to purchase such amount of shares of common stock as
will be determined on the Reset Date (as defined in the Series D common warrant). The common warrants will be exercisable upon issuance
and will have a term of 5.5 years from the stockholder approval date. The number of securities issued under the units is subject to adjustment
as described in more detail in the Current Report on Form 8-K to be filed in connection with the private placement.
The Company intends to use the net proceeds from
the private placement primarily for general working capital and administrative purposes.
EF Hutton is acting as exclusive placement agent
for the offering. Loeb & Loeb LLP is serving as counsel to the Company for the private placement. Sichenzia Ross Ference Carmel LLP
is serving as counsel to the placement agent.
The shares of common stock and warrants described
above have not been registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent
registration with the Securities and Exchange Commission (the “SEC”) or an applicable exemption from such registration requirements.
The securities were offered only to accredited investors. Pursuant to a registration rights agreement with the investors, the Company
has agreed to file one or more registration statements with the SEC covering the resale of the shares of common stock and the shares issuable
upon exercise of the pre-funded warrants and warrants.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About Solidion Technology, Inc.
Headquartered in Dallas, Texas with pilot production
facilities in Dayton, Ohio, Solidion’s core business includes manufacturing of battery materials and components, as well as development
and production of next-generation batteries for energy storage systems and electric vehicles for ground, air, and sea transportation.
Solidion offers two lines of battery products: (i) advanced anode materials (ready for production expansion); and (ii) three classes of
solid-state batteries, including Silicon-rich all-solid-state lithium-ion cells (Gen 1), anodeless lithium metal cells (Gen 2), and lithium-sulfur
cells (Gen 3), all featuring an advanced polymer- or polymer/inorganic composite-based solid electrolyte that is process-friendly. Solidion’s
solid-state batteries can be manufactured at scale using current lithium-ion cell production facilities; this feature enables fastest
time-to-market of safe solid-state batteries. Solidion batteries are designed to deliver significantly extended EV range, improved battery
safety, lower cost per KWh, fastest time-to-market, and next-gen cathodes (potential to replace expensive nickel and cobalt with sulfur
(S) and other more abundant elements).
Cautionary Note Regarding Forward-Looking Statements:
This press release contains
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, or the Securities Act, and Section
21E of the Securities Exchange Act of 1934, or the Exchange Act. The statements contained in this press release that are not
purely historical are forward-looking statements. Our forward-looking statements include, but are not limited to, statements regarding
our or our management’s expectations, hopes, beliefs, intentions or strategies regarding the future. In addition, any statements
that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions,
are forward-looking statements. The words “anticipates,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,”
“potential,” “predict,” “project,” “should,” “would” and similar expressions
may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. The forward-looking
statements contained in this press release are based on our current expectations and beliefs concerning future developments and their
potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These
forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may
cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. Should
one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in
material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise, except as may be required under applicable laws. As a
result of a number of known and unknown risks and uncertainties, our actual results or performance may be materially different from those
expressed or implied by these forward-looking statements. Some factors that could cause actual results to differ include: our ability
to execute our business model, including scaling production and increasing the addressable market for our products and services; our ability
to raise capital; the outcome of any legal proceedings that may be instituted against us; the ability to maintain the listing of our securities
on the Nasdaq; the possibility that we may be adversely affected by other economic, business or competitive factors, including supply
chain interruptions, and may not be able to manage other risks and uncertainties; changes in applicable laws or regulations; the possibility
that we may be adversely affected by other economic, business, and/or competitive factors; and other risks and uncertainties described
in our Annual Report on Form 10-K filed with the Securities and Exchange Commission on April 12, 2024.
Solidion Technology Inc. Contacts
For Investors: ir@solidiontech.com
For Media: press@solidiontech.com
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