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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) July 17, 2023
TRAQIQ,
INC.
(Exact
name of registrant as specified in charter)
California |
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000-56148 |
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30-0580318 |
(State
or other Jurisdiction of |
|
(Commission |
|
(IRS
Employer |
Incorporation
or Organization) |
|
File
Number) |
|
Identification
No.) |
1931
Austin Drive |
|
|
Troy,
Michigan |
|
48083 |
(Address
of Principal Executive Offices) |
|
(zip
code) |
(425)
818-0560
(Registrant’s
telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of registrant under any
of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
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 |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
N/A |
|
N/A |
|
N/A |
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.
Between
October 21, 2022 and May 12, 2023, TraQiQ, Inc. (the “Company”) issued $1.9 million original principal amount of 20% OID
Senior Secured Promissory Notes (the “Notes”) to five accredited investors, including a Note in the original principal amount
of $62,500 to the Company’s Chief Executive Officer, Glen Miller. These Notes had a one year maturity date, bore interest at 10%
per annum, and were convertible only upon an event of default under the Notes at the option of the holder into shares of common stock
at a conversion price equal to the lower of (i) $0.015 per share or (ii) 90% of the average of the two lowest volume-weighted average
price of the five trading days ending on the day immediately prior to the conversion date.
On
July 17, 2023, the Company entered into Exchange Agreements (the “Note Exchange Agreements”), with these five noteholders.
Under the terms of the Note Exchange Agreements, the Notes (approximately $1.94 million of outstanding principal and accrued interest)
have been cancelled. In exchange, the Company has issued to the former noteholders rights to receive an aggregate of 38,800,764 shares
of common stock of the Company in accordance with the terms of Series A Rights to Receive Common Stock dated July 17, 2023 (the “Series
A Rights”).
On
July 17, 2023, the Company also entered into Exchange Agreements (the “Series B Preferred Exchange Agreements” and, together
with the Notes Exchange Agreements, the “Exchange Agreements”) with two accredited investors, including Ajay Sikka, a director
of the Company and the Company’s former Chief Executive Officer, pursuant to which such investors exchanged an aggregate of 220,135
shares of the Company’s Series B Convertible Preferred Stock, par value $0.0001 per share, into an aggregate of 22,013,500 Series
A Rights. Each share of Series B Preferred Stock was convertible into the 100 shares of the Company’s common stock at any time
and had no voting rights. Pursuant to the Exchange Agreement with Mr. Sikka, Mr. Sikka also exchanged 5,000,000 shares of the Company’s
common stock and a payment receivable from the Company for unreimbursed advances in the amount of $100,000 for an aggregate
of 7,000,000 additional Series A Rights.
The
outstanding Series A Rights obligate the Company to issue to the holders upon request (without the payment of any additional consideration)
an aggregate of 67,814,264 shares of common stock (the “Right Shares”). The number of Right Shares is fixed, and is only
subject to customary non-price-based ratable adjustments, such as stock splits, stock combinations and the like. The Series A Rights
are immediately exercisable and expire on July 17, 2028.
Pursuant
to the terms of the Series A Rights, the holders will not be able to exercise the Series A Rights and receive Right Shares to the extent
that after giving effect to such issuance after exercise, the holder would beneficially own in excess of 4.9% of the number of shares
of the Company’s common stock outstanding immediately after giving effect to the issuance of shares of the Company’s common
stock issuable upon exercise of the applicable Series A Right. Each holder may decrease their applicable ownership limitation at any
time and each holder, upon not less than 61 days’ prior notice to the Company, may increase their applicable beneficial ownership
limitation, provided that the applicable beneficial ownership limitation may in no event exceed 9.99% of the number of shares of the
Company’s common stock outstanding immediately after giving effect to the issuance of shares of the Company’s common stock
upon exercise of the applicable Right.
The
foregoing description of the Exchange Agreements is a summary and is qualified in its entirety by reference to the documents, which are
attached hereto as Exhibit 10.1 and Exhibit 10.2 and are incorporated herein by reference. The foregoing description of the Series A
Rights is a summary and is qualified in its entirety by reference to the Series A Right, which is attached hereto as Exhibit 10.3 and
is incorporated herein by reference.
Item
3.02 Unregistered Sales of Equity Securities.
The
information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference. The Series A Rights were issued
by the Company in reliance upon the exemption from registration contained in Section 3(a)(9) of the Securities Act of 1933, as amended.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
The
following exhibit is filed with this Current Report on Form 8-K:
* |
Schedules,
exhibits and similar supporting attachments or agreements to the Notes Exchange Agreement are omitted pursuant to Item 601(b)(2)
of Regulation S-K. The registrant agrees to furnish a supplemental copy of any omitted schedule or similar attachment to the Securities
and Exchange Commission upon request. |
SIGNATURE
Pursuant
to the requirement of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date:
July 18, 2023 |
TRAQIQ, INC. |
|
|
|
|
By: |
/s/
Glen Miller |
|
|
Glen
Miller |
|
|
Chief
Executive Officer |
Exhibit 10.1
Execution
Version
TraQiQ,
Inc.
EXCHANGE
SUBSCRIPTION AGREEMENT
TraQiQ,
Inc.
1931
Austin Drive
Troy,
MI 48083
Ladies
and Gentlemen:
The
undersigned holder(s) (the “Holder”) of 20% OID Promissory Notes (the “Notes”) of TraQiQ, Inc. (the “Company”)
in the aggregate principal amount of $_______, does hereby certify to, and agree with, the Company as follows:
1.
The Holder is the owner of the Notes in the aggregate principal amount of set forth above.
2.
The Company has offered the Holder the opportunity to subscribe for and purchase Series [_] Rights to Receive Common Stock in the form
annexed hereto (the “Rights”) that are exchangeable for an aggregate of ____ shares of Common Stock, par value $.0001 per
share (the “Common Stock”), of the Company, in exchange all of the Notes, including the accrued interest thereon through
the date hereof in the amount of $_______.
3.
The Holder does hereby irrevocably subscribe to purchase Rights that are exchangeable for ______ shares of Common Stock, which Rights
shall be paid for in full by delivering to the Company for exchange and cancellation or otherwise foregoing the payment by the Company
of all of the Notes, including all accrued and unpaid interest thereon. Upon acceptance by the Company of such subscription, the Holder’s
Notes shall be cancelled by the Company, and the Company shall have no further obligations with respect thereto.
4.
The Holder hereby acknowledges, represents, warrants and agrees as follows:
(a)
None of the Rights or the shares of Common Stock to be issued to the Holder upon exchange of the Rights are registered under the Securities
Act of 1933, as amended (the “Securities Act”), or any state securities laws. The Holder understands that the offering and
sale of such Rights is intended to be exempt from registration under the Securities Act by virtue of Section 3(a)(9) thereof and the
regulations promulgated thereunder, based, in part, upon the representations, warranties and agreements of the parties contained in this
Exchange Subscription Agreement;
(b)
The Holder has received all documents related to the Company requested by the Holder, has carefully reviewed them and understands the
information contained therein, and the Holder, prior to the execution of this Exchange Subscription Agreement, has had access to the
same kind of information that would be available in a registration statement filed by the Company under the Securities Act;
(c)
Neither the Securities and Exchange Commission nor any state securities commission has approved the Rights to be issued hereunder, or
passed upon or endorsed the merits of the offering of such Rights;
(d)
The Holder has had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the
Company concerning the business, financial condition, results of operations and prospects of the Company, and all such questions have
been answered to the full satisfaction of the Holder;
(e)
In evaluating the suitability of an investment in the Company, the Holder has not relied upon any representation or other information
(oral or written) other than as contained in documents or answers to questions so furnished to the Holder by the Company;
(f)
The Holder is acquiring the Rights solely for the Holder’s own account for investment and not with a view to resale or distribution
thereof, in whole or in part; the Holder has no agreement or arrangement, formal or informal, with any person to sell or transfer all
or any part of such Rights; and the Holder has no plans to enter into any such agreement or arrangement; and
(g)
The Holder meets the requirements of at least one of the suitability standards for an “accredited investor” as such term
is defined the Securities Act.
5.
The Company represents to the Holder that neither the Company nor any of its subsidiaries has received, anticipates receiving, has any
agreement to receive or has been given any promise to receive any consideration from the Holder or any other Person in connection with
the transactions contemplated by this Exchange Subscription Agreement. The Company hereby acknowledges that the holding period of the
Rights and the shares of Common Stock issuable upon exercise of the Rights shall tack back to the date the Notes exchanged therefor was
originally issued by the Company to the Holder (or their assignor) and it covenants not to take any position to the contrary.
6.
This Exchange Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York relating
to contracts entered into and to be performed wholly within such State.
7.
(a) This Exchange Subscription Agreement constitutes the entire agreement between the Holder and the Company with respect to the subject
matter hereof and supersedes all prior oral or written agreements and understandings, if any, relating to the subject matter hereof.
The terms and provisions of this Exchange Subscription Agreement may be waived, or consent for the departure therefrom granted, only
by a written document executed by the party entitled to the benefits of such terms or provisions.
(b)
The Holder’s representations and warranties made in this Exchange Subscription Agreement shall survive the execution and delivery
hereof and the delivery of the Rights contemplated hereby.
(c)
Each of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Exchange Subscription Agreement and the transactions contemplated hereby, whether or not
the transactions contemplated hereby are consummated.
(d)
This Exchange Subscription Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
(e)
Each provision of this Exchange Subscription Agreement shall be considered separable and if for any reason any provision or provisions
hereof are determined to be invalid or contrary to applicable law, such invalidity or illegality shall not impair the operation of or
affect the remaining portions of this Exchange Subscription Agreement.
IN
WITNESS WHEREOF, the Holder has executed this Exchange Subscription Agreement this ___ day of July, 2023.
If
the Holder is an INDIVIDUAL, and if purchased as JOINT TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY:
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Print Name(s) |
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Social
Security Number(s) |
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Signature(s) of Holder(s) |
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Date |
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Address |
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If the Holder is a PARTNERSHIP, CORPORATION, or TRUST: |
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Name of Partnership, |
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Federal
Taxpayer |
Corporation or Trust |
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Identification
Number |
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Date |
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By: |
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Name: |
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State
of Organization |
Title: |
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Address |
SUBSCRIPTION ACCEPTED AND AGREED TO |
this ____ day of July, 2023 |
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TRAQIQ, INC. |
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|
|
|
By: |
|
|
Title:
|
Chief Executive Officer |
|
Exhibit
10.2
Execution
Version
TraQiQ,
Inc.
EXCHANGE
SUBSCRIPTION AGREEMENT
TraQiQ,
Inc.
1931
Austin Drive
Troy,
MI 48083
Ladies
and Gentlemen:
The
undersigned holder(s) (the “Holder”) of ______ shares (the “Shares”) of Series B Convertible Preferred Stock,
par value $0.001 per share (the “Series B Preferred Stock”) of TraQiQ, Inc. (the “Company”), does hereby certify
to, and agree with, the Company as follows:
1.
The Holder is the owner of the number of shares of Series B Preferred Stock set forth above.
2.
The Company has offered the Holder the opportunity to subscribe for and purchase Series [_] Rights to Receive Common Stock in the form
annexed hereto (the “Rights”) that are exchangeable for an aggregate of ____ shares of Common Stock, par value $.0001 per
share (the “Common Stock”), of the Company, in exchange all of the Shares.
3.
The Holder does hereby irrevocably subscribe to purchase Rights that are exchangeable for ______ shares of Common Stock, which Rights
shall be paid for in full by delivering to the Company for exchange and cancellation all of the Shares, together with a stock power for
the transfer of the Shares executed by the Holder in blank and, if the Holder is a partnership, corporation or trust, such board or directors
or managers or other approval as shall be required by the transfer agent for the Series B Preferred Stock to effect the transfer to the
Company or cancellation of such shares. Upon acceptance by the Company of such subscription, the Holder’s Shares shall be cancelled
by the Company, and the Company shall have no further obligations with respect thereto.
4.
The Holder hereby acknowledges, represents, warrants and agrees as follows:
(a)
None of the Rights or the shares of Common Stock to be issued to the Holder upon exchange of the Rights are registered under the Securities
Act of 1933, as amended (the “Securities Act”), or any state securities laws. The Holder understands that the offering and
sale of such Rights is intended to be exempt from registration under the Securities Act by virtue of Section 3(a)(9) thereof and the
regulations promulgated thereunder, based, in part, upon the representations, warranties and agreements of the parties contained in this
Exchange Subscription Agreement;
(b)
The Holder has received all documents related to the Company requested by the Holder, has carefully reviewed them and understands the
information contained therein, and the Holder, prior to the execution of this Exchange Subscription Agreement, has had access to the
same kind of information that would be available in a registration statement filed by the Company under the Securities Act;
(c)
Neither the Securities and Exchange Commission nor any state securities commission has approved the Rights to be issued hereunder, or
passed upon or endorsed the merits of the offering of such Rights;
(d)
The Holder has had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the
Company concerning the business, financial condition, results of operations and prospects of the Company, and all such questions have
been answered to the full satisfaction of the Holder;
(e)
In evaluating the suitability of an investment in the Company, the Holder has not relied upon any representation or other information
(oral or written) other than as contained in documents or answers to questions so furnished to the Holder by the Company;
(f)
The Holder is acquiring the Rights solely for the Holder’s own account for investment and not with a view to resale or distribution
thereof, in whole or in part; the Holder has no agreement or arrangement, formal or informal, with any person to sell or transfer all
or any part of such Rights; and the Holder has no plans to enter into any such agreement or arrangement; and
(g)
The Holder meets the requirements of at least one of the suitability standards for an “accredited investor” as such term
is defined the Securities Act.
5.
The Company represents to the Holder that neither the Company nor any of its subsidiaries has received, anticipates receiving, has any
agreement to receive or has been given any promise to receive any consideration from the Holder or any other Person in connection with
the transactions contemplated by this Exchange Subscription Agreement. The Company hereby acknowledges that the holding period of the
Rights and the shares of Common Stock issuable upon exercise of the Rights shall tack back to the date the Shares exchanged therefor
was originally issued by the Company to the Holder (or their assignor) and it covenants not to take any position to the contrary.
6.
This Exchange Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York relating
to contracts entered into and to be performed wholly within such State.
7.
(a) This Exchange Subscription Agreement constitutes the entire agreement between the Holder and the Company with respect to the subject
matter hereof and supersedes all prior oral or written agreements and understandings, if any, relating to the subject matter hereof.
The terms and provisions of this Exchange Subscription Agreement may be waived, or consent for the departure therefrom granted, only
by a written document executed by the party entitled to the benefits of such terms or provisions.
(b)
The Holder’s representations and warranties made in this Exchange Subscription Agreement shall survive the execution and delivery
hereof and the delivery of the Rights contemplated hereby.
(c)
Each of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Exchange Subscription Agreement and the transactions contemplated hereby, whether or not
the transactions contemplated hereby are consummated.
(d)
This Exchange Subscription Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
(e)
Each provision of this Exchange Subscription Agreement shall be considered separable and if for any reason any provision or provisions
hereof are determined to be invalid or contrary to applicable law, such invalidity or illegality shall not impair the operation of or
affect the remaining portions of this Exchange Subscription Agreement.
IN
WITNESS WHEREOF, the Holder has executed this Exchange Subscription Agreement this ___ day of July, 2023.
If
the Holder is an INDIVIDUAL, and if purchased as JOINT TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY:
|
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Print
Name(s) |
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Social
Security Number(s) |
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Signature(s)
of Holder(s) |
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Date
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Address |
If
the Holder is a PARTNERSHIP, CORPORATION, or TRUST:
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Name
of Partnership, |
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Federal
Taxpayer |
Corporation
or Trust |
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Identification
Number |
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Date |
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By: |
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Name: |
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State
of Organization |
Title:
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Address |
SUBSCRIPTION
ACCEPTED AND AGREED TO
this
____ day of July, 2023
TRAQIQ,
INC.
By: |
|
|
Title: |
Chief Executive Officer |
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Exhibit
10.3
FORM
OF SERIES A RIGHT
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 TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO
THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE 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 NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS RIGHT MAY
BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 1(a)
OF THIS RIGHT.
TraqIQ,
Inc.
Series
A Right To Receive Common Stock
Right
No.: A-[ ]
Date
of Exchange: [ ] (“Exchange Date”)
Date
of Issuance: [ ]
TraqIQ,
Inc., a California corporation (the “Company”), hereby certifies that [BUYER],
the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth
below, to receive from the Company, upon exercise of this Series A Right to Receive Common Stock (including any Series A Rights to Receive
Common Stock issued in exchange, transfer or replacement hereof, this “Right”), at any time or times on or after the
Exchange Date (the “Initial Exercisability Date”), but not after 11:59 p.m., New York time, on the Expiration Date
(as defined below), _________________ (subject to adjustment as provided herein) fully paid and non-assessable shares of Common Stock
(as defined below) (the “Right Shares”, and such number of Right Shares, the “Right Number”). Except
as otherwise defined herein, capitalized terms in this Right shall have the meanings set forth in Section 19.
No
consideration shall be required to be paid by the Holder to any Person to effect any exercise of this Right.
1.
EXERCISE OF RIGHT.
(a)
Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in
Section 1(f)), this Right may be exercised by the Holder on any day on or after the Initial Exercisability Date (an “Exercise
Date”), in whole or in part, by delivery (whether via facsimile or otherwise) of a written notice, in the form attached hereto
as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Right. No consideration
shall be required to be paid by the Holder to any Person to effect any exercise of this Right. The Holder shall not be required to deliver
an ink-original of this Right or an Exercise Notice in order to effect an exercise hereunder, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Exercise Notice form be required. Execution and delivery of an Exercise Notice with respect
to less than all of the Right Shares shall have the same effect as cancellation of the original of this Right and issuance of a new Right
evidencing the right to receive the remaining number of Right Shares. Execution and delivery of an Exercise Notice for all of the then-remaining
Right Shares shall have the same effect as cancellation of the original of this Right after delivery of the Right Shares in accordance
with the terms hereof. On or before the first (1st) Trading Day following the date on which the Company has received an Exercise
Notice, the Company shall transmit by facsimile or electronic mail an acknowledgment of confirmation of receipt of such Exercise Notice,
in the form attached hereto as Exhibit B with respect to issuance of free trading Rights Shares (and/or Rights Shares sold,
or to be resold, by the Holder pursuant to Rule 144) and in the form attached hereto as Exhibit C with respect to issuance
of restricted Rights Shares, to the Holder and the Company’s transfer agent (the “Transfer Agent”), which confirmation
shall constitute an instruction to the Transfer Agent to process such Exercise Notice in accordance with the terms herein. On or before
the second (2nd) Trading Day following the date on which the Company has received such Exercise Notice (or such earlier date as required
pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade of such Right Shares initiated on
the applicable Exercise Date) (the “Share Delivery Deadline”), the Company shall (i) provided that the Transfer Agent
is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program (“FAST”)
and this Right satisfies one or more Free Tradability Conditions, upon the request of the Holder, credit such aggregate number of shares
of Common Stock 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 (ii) if the Transfer Agent is not participating in FAST or this Right
does not satisfy any Free Tradability Conditions, upon the request of the Holder, issue and deliver (via reputable overnight courier)
to the address as specified in the Exercise Notice, a certificate, registered in the name of the Holder or its designee, for the number
of shares of Common Stock to which the Holder shall be entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder
shall be deemed for all corporate purposes to have become the holder of record of the Right Shares with respect to which this Right has
been exercised, irrespective of the date such Right Shares are credited to the Holder’s DTC account or the date of delivery of
the certificates evidencing such Right Shares (as the case may be). If this Right is submitted in connection with any exercise pursuant
to this Section 1(a) and the number of Right Shares represented by this Right submitted for exercise is greater than the number of Right
Shares being acquired upon an exercise and upon surrender of this Right to the Company by the Holder, then, at the request of the Holder,
the Company shall as soon as practicable and in no event later than two (2) Business Days after any exercise and at its own expense,
issue and deliver to the Holder (or its designee) a new Right (in accordance with Section 7(d)) representing the right to receive the
number of Right Shares issuable hereunder immediately prior to such exercise under this Right, less the number of Right Shares with respect
to which this Right is exercised.
(b)
Factional Shares; Taxes. No fractional shares of Common Stock are to be issued upon the exercise of this Right, but rather the
number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all transfer,
stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent) that may
be payable with respect to the issuance and delivery of Right Shares upon exercise of this Right. Notwithstanding anything to the contrary
contained in this Right or the Registration Rights Agreement, after the effective date of the Registration Statement (as defined in the
Registration Rights Agreement) and prior to the Holder’s receipt of the notice of a Grace Period (as defined in the Registration
Rights Agreement), the Company shall cause the Transfer Agent to deliver unlegended shares of Common Stock to the Holder (or its designee)
in connection with any sale of Registrable Securities (as defined in the Registration Rights Agreement) with respect to which the Holder
has entered into a contract for sale, and delivered a copy of the prospectus included as part of the particular Registration Statement
to the extent applicable, and for which the Holder has not yet settled. From the Exchange Date through and including the Expiration Date,
the Company shall maintain a transfer agent that participates in FAST.
(c)
Company’s Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, on or prior
to the Share Delivery Deadline, either (I) if the Transfer Agent is not participating in FAST or this Right does not satisfy any Free
Tradability Conditions, to issue and deliver to the Holder (or its designee) a certificate for the number of Right Shares to which the
Holder is entitled and register such Right Shares on the Company’s share register or, if the Transfer Agent is participating in
FAST and this Right satisfies one or more Free Tradability Conditions, to credit the balance account of the Holder or the Holder’s
designee with DTC for such number of Right Shares to which the Holder is entitled upon the Holder’s exercise of this Right (as
the case may be) or (II) if a Registration Statement covering the resale of the Right Shares that are the subject of the Exercise Notice
(the “Unavailable Right Shares”) is not available for the resale of such Unavailable Right Shares and the Company
fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify the Holder and
(y) deliver the Right Shares electronically without any restrictive legend by crediting such aggregate number of Right 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 (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure”
and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies
available to the Holder, (X) the Company shall pay in cash to the Holder on each day after the Share Delivery Deadline and during such
Delivery Failure an amount equal to 1% of the product of (A) the sum of the number of shares of Common Stock not issued to the Holder
on or prior to the Share Delivery Deadline and to which the Holder is entitled, multiplied by (B) any trading price of the Common Stock
selected by the Holder in writing as in effect at any time during the period beginning on the applicable Exercise Date and ending on
the applicable Share Delivery Deadline, and (Y) the Holder, upon written notice to the Company, may void its Exercise Notice with respect
to, and retain or have returned, as the case may be, any portion of this Right that has not been exercised pursuant to such Exercise
Notice; provided that the voiding of an Exercise Notice shall not affect the Company’s obligations to make any payments which have
accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise. In addition to the foregoing, if on or prior to
the Share Delivery Deadline either (I) the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program
or this Right does not satisfy any Free Tradability Conditions, the Company shall fail to issue and deliver to the Holder (or its designee)
a certificate and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating
in the DTC Fast Automated Securities Transfer Program and this Right satisfies one or more Free Tradability Conditions, the Transfer
Agent shall fail to credit the balance account of the Holder or the Holder’s designee with DTC for the number of shares of Common
Stock to which the Holder is entitled upon the Holder’s exercise hereunder or pursuant to the Company’s obligation pursuant
to clause (ii) below or (II) a Notice Failure occurs, and if on or after such Share Delivery Deadline the Holder acquires (in an open
market transaction, stock loan or otherwise) shares of Common Stock corresponding to all or any portion of the number of shares of Common
Stock issuable upon such exercise that the Holder is entitled to receive from the Company and has not received from the Company in connection
with such Delivery Failure or Notice Failure, as applicable (a “Buy-In”), then, in addition to all other remedies
available to the Holder, the Company shall, within two (2) Business Days after the Holder’s request and in the Holder’s discretion,
either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, stock
loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so acquired (including, without limitation, by any
other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s obligation
to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the balance account of such Holder or such
Holder’s designee, as applicable, with DTC for the number of Right Shares to which the Holder is entitled upon the Holder’s
exercise hereunder (as the case may be) (and to issue such Right Shares) shall terminate, or (ii) promptly honor its obligation to so
issue and deliver to the Holder a certificate or certificates representing such Right Shares or credit the balance account of such Holder
or such Holder’s designee, as applicable, with DTC for the number of Right Shares to which the Holder is entitled upon the Holder’s
exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of Right Shares multiplied by (B) the lowest Closing Sale Price of the Common Stock on any Trading Day
during the period commencing on the date of the applicable Exercise Notice and ending on the date of such issuance and payment under
this clause (ii) (the “Buy-In Payment Amount”). Nothing 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 certificates representing shares of Common Stock (or to electronically
deliver such shares of Common Stock) upon the exercise of this Right as required pursuant to the terms hereof. While this Right is outstanding,
the Company shall cause its transfer agent to participate in FAST. In addition to the foregoing rights, (i) if the Company fails to deliver
the applicable number of Right Shares upon an exercise pursuant to Section 1 by the applicable Share Delivery Deadline, then the Holder
shall have the right to rescind such exercise in whole or in part and retain and/or have the Company return, as the case may be, any
portion of this Right that has not been exercised pursuant to such Exercise Notice; provided that the rescission of an exercise shall
not affect the Company’s obligation to make any payments that have accrued prior to the date of such notice pursuant to this Section
1(c) or otherwise, and (ii) if a registration statement covering the issuance or resale of the Right Shares that are subject to an Exercise
Notice is not available for the issuance or resale, as applicable, of such Right Shares and the Holder has submitted an Exercise Notice
prior to receiving notice of the non-availability of such registration statement and the Company has not already delivered the Right
Shares underlying such Exercise Notice electronically without any restrictive legend by crediting such aggregate number of Right 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, the Holder shall have the option, by delivery of notice to the Company, to rescind such
Exercise Notice in whole or in part and retain or have returned, as the case may be, any portion of this Right that has not been exercised
pursuant to such Exercise Notice; provided that the rescission of an Exercise Notice shall not affect the Company’s obligation
to make any payments that have accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise.
(d)
144 Status. For purposes of Rule 144(d) promulgated under the 1933 Act, as in effect on the Settlement Date, it is intended that
the Right Shares issued hereunder upon exercise of this Right, from time to time, shall be deemed to have been acquired by the Holder,
and the holding period for the Right Shares shall be deemed to have commenced, as of the Settlement Date. The Company acknowledges and
agrees that in accordance with Section 3(a)(9) of the 1933 Act, the Right Shares shall take on the registered characteristics of the
Rights being exercised. 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 arithmetic calculation of the number of Right Shares to be issued pursuant to the
terms hereof, the Company shall promptly issue to the Holder the number of Right Shares that are not disputed and resolve such dispute
in accordance with Section 13.
(f)
Limitations on Exercises. The Company shall not effect the exercise of any portion of this Right, and the Holder shall not have
the right to exercise any portion of this Right, pursuant to the terms and conditions of this Right 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 shares of Common
Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares
of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock
held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of this Right with
respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon
(A) exercise of the remaining, unexercised portion of this Right 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) 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)(i). For purposes of this Section
1(f)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number
of outstanding shares of Common Stock the Holder may acquire upon the exercise of this Right without exceeding the Maximum Percentage,
the Holder may rely on the number of outstanding shares of Common Stock 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 SEC, as the case may be, (y)
a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting
forth the number of shares of Common Stock 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 shares of Common Stock is less than the Reported Outstanding
Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock 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)(i),
to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Right Shares to be acquired pursuant to such
Exercise Notice (the number of shares by which such exercise is reduced, the “Reduction Shares”). For any reason at
any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing
or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Right,
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 shares of Common Stock to the Holder upon exercise of this Right 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 shares of Common
Stock (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. Upon
delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first
(61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage not in excess of 9.99%
as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first
(61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder
and the other Attribution Parties and not to any other holder of Rights that is not an Attribution Party of the Holder. For purposes
of clarity, the shares of Common Stock issuable pursuant to the terms of this Right 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 Right 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)(i) 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)(i) 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 Right.
(g)
Reservation of Shares.
(i)
Required Reserve Amount. So long as this Right remains outstanding, the Company shall at all times keep reserved for issuance
under this Right a number of shares of Common Stock at least equal to 100% of the maximum number of shares of Common Stock as shall be
necessary to satisfy the Company’s obligation to issue shares of Common Stock under the Rights then outstanding (without regard
to any limitations on exercise) (the “Required Reserve Amount”); provided that at no time shall the number of shares
of Common Stock reserved pursuant to this Section 1(g)(i) be reduced other than proportionally in connection with any exercise or redemption
of Rights or such other event covered by Section 2(a) below. The Required Reserve Amount (including, without limitation, each increase
in the number of shares so reserved) shall be allocated pro rata among the holders of the Rights based on number of shares of Common
Stock issuable upon exercise of Rights held by each holder on the applicable Settlement Date (without regard to any limitations on exercise)
or increase in the number of reserved shares, as the case may be (the “Authorized Share Allocation”). In the event
that a holder shall sell or otherwise transfer any of such holder’s Rights, each transferee shall be allocated a pro rata portion
of such holder’s Authorized Share Allocation. Any shares of Common Stock reserved and allocated to any Person which ceases to hold
any Rights shall be allocated to the remaining holders of Rights, pro rata based on the number of shares of Common Stock issuable upon
exercise of the Rights then held by such holders (without regard to any limitations on exercise).
(ii)
Insufficient Authorized Shares. If, notwithstanding Section 1(g)(i), and not in limitation thereof, at any time while any of the
Rights remain outstanding, the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy
its obligation to reserve the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately
take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company
to reserve the Required Reserve Amount for all the Rights 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 stockholders for the approval of an increase
in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with
a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of
Common Stock and to cause its board of directors to recommend to the stockholders that they approve such proposal. Notwithstanding the
foregoing, if any such time of an Authorized Share Failure, the Company is able to obtain the written consent of a majority of the shares
of its issued and outstanding shares of Common Stock to approve the increase in the number of authorized shares of Common Stock, the
Company may satisfy this obligation by obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule
14C. In the event that the Company is prohibited from issuing shares of Common Stock upon an exercise of this Right due to the failure
by the Company to have sufficient shares of Common Stock available out of the authorized but unissued shares of Common Stock (such unavailable
number of shares of Common Stock, the “Authorization Failure Shares”), in lieu of delivering such Authorization Failure
Shares to the Holder, the Company shall pay cash in exchange for the cancellation of such portion of this Right exercisable into such
Authorization Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorization Failure Shares and (y)
the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the
applicable Exercise Notice with respect to such Authorization Failure Shares to the Company and ending on the date of such issuance and
payment under this Section 1(g); and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Holder of Authorization Failure Shares, any Buy-In Payment Amount, brokerage commissions
and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith.
2.
ADJUSTMENT OF NUMBER OF RIGHT SHARES. The number of Right Shares issuable upon exercise of this Right are subject to adjustment
from time to time as set forth in this Section 2.
(a)
Stock Dividends and Splits. Without limiting any provision of Section 3 or Section 4, if the Company, at any time on or after
the Exchange Date, (i) pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes
a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii)
combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a
smaller number of shares, then in each case the number of Rights Shares issuable upon exercise of the Right shall be proportionately
adjusted. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii)
of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
(b)
Calculations. All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th
of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Company, and the disposition of any such shares shall be considered an issuance or sale of Common Stock.
3.
RIGHTS UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2 above, if the Company shall declare or
make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, 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 Right, 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 shares of Common Stock acquirable upon complete exercise of this Right (without regard to any limitations
or restrictions on exercise of this Right, including without limitation, the Maximum Percentage) immediately before the date on which
a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock 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 shares of Common Stock 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, if ever, 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 Stock (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 shares of Common Stock acquirable upon complete exercise of this Right (without regard to any limitations or restrictions on exercise
of this Right, 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 shares of Common
Stock are to be determined for the grant, issuance 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 shares of Common Stock 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,
if ever, 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 (i) the Successor Entity
assumes in writing all of the obligations of the Company under this Right in accordance with the provisions of this Section 4(b) pursuant
to written agreements in form and substance satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction,
including agreements to deliver to the Holder in exchange for this Right a security of the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Right, including, without limitation, which is exercisable for a corresponding number
of shares of capital stock equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Right (without regard
to any limitations on the exercise of this Right) prior to such Fundamental Transaction and (ii) the Successor Entity (including its
Parent Entity) is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible Market. Upon the
consummation of each Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the
date of the applicable Fundamental Transaction, the provisions of this Right referring to the “Company” shall refer instead
to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company
under this Right with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of each Fundamental
Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise of this Right at
any time after the consummation of the applicable Fundamental Transaction, in lieu of the shares of Common Stock (or other securities,
cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable
thereafter)) issuable upon the exercise of this Right prior to the applicable Fundamental Transaction, such shares of publicly traded
common stock (or its equivalent) of the Successor Entity (including its Parent Entity) which the Holder would have been entitled to receive
upon the happening of the applicable Fundamental Transaction had this Right been exercised immediately prior to the applicable Fundamental
Transaction (without regard to any limitations on the exercise of this Right), as adjusted in accordance with the provisions of this
Right. Notwithstanding the foregoing, and without limiting Section 1(f) hereof, the Holder may elect, at its sole option, by delivery
of written notice to the Company to waive this Section 4(b) to permit the Fundamental Transaction without the assumption of this Right.
In addition to and not in substitution for any other rights hereunder, prior to the consummation of each Fundamental Transaction pursuant
to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares
of Common Stock (a “Corporate Event”), the Company shall make appropriate provision to insure that the Holder will
thereafter have the right to receive upon an exercise of this Right at any time after the consummation of the applicable Fundamental
Transaction but prior to the Expiration Date, in lieu of the shares of the Common Stock (or other securities, cash, assets or other property
(except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the
exercise of the Right 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 the Holder would have been entitled to receive upon the happening
of the applicable Fundamental Transaction had this Right been exercised immediately prior to the applicable Fundamental Transaction (without
regard to any limitations on the exercise of this Right). Provision made pursuant to the preceding sentence shall be in a form and substance
reasonably satisfactory to the Holder.
(c)
Application. The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and Corporate
Events and shall be applied as if this Right (and any such subsequent rights) were fully exercisable and without regard to any limitations
on the exercise of this Right (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied
however with respect to shares of capital stock registered under the 1934 Act and thereafter receivable upon exercise of this Right (or
any such other right)).
5.
NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation
or bylaws or other organizational documents or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement,
dissolution, issuance 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 Right, and will at all times in good faith carry out all the provisions of this Right and take all action as may
be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company shall take all such actions
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common
Stock upon the exercise of this Right.
6.
RIGHT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in its capacity as
a holder of this Right, 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 Right be construed to confer upon the Holder, solely in its capacity as the Holder
of this Right, any of the rights of a stockholder 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 Right Shares which it
is then entitled to receive upon the due exercise of this Right. In addition, nothing contained in this Right shall be construed as imposing
any liabilities on the Holder to acquire any securities (upon exercise of this Right or otherwise) or as a stockholder 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 stockholders of the Company generally, contemporaneously
with the giving thereof to the stockholders.
7.
REISSUANCE OF RIGHTS.
(a)
Transfer of Right. If this Right is to be transferred, the Holder shall surrender this Right to the Company, whereupon the Company
will forthwith issue and deliver upon the order of the Holder a new Right (in accordance with Section 7(d)), registered as the Holder
may request, representing the right to receive the number of Right Shares being transferred by the Holder and, if less than the total
number of Right Shares then underlying this Right is being transferred, a new Right (in accordance with Section 7(d)) to the Holder representing
the right to receive the number of Right Shares not being transferred.
(b)
Lost, Stolen or Mutilated Right. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Right (as to which a written certification and the indemnification contemplated below shall suffice
as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in
customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Right, the Company shall execute
and deliver to the Holder a new Right (in accordance with Section 7(d)) representing the right to receive the Right Shares then underlying
this Right.
(c)
Exchangeable for Multiple Rights. This Right is exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for a new Right or Rights (in accordance with Section 7(d)) representing in the aggregate the right to receive the number
of Right Shares then underlying this Right, and each such new Right will represent the right to receive such portion of such Right Shares
as is designated by the Holder at the time of such surrender; provided, however, no rights for fractional shares of Common Stock shall
be given.
(d)
Issuance of New Rights. Whenever the Company is required to issue a new Right pursuant to the terms of this Right, such new Right
(i) shall be of like tenor with this Right, (ii) shall represent, as indicated on the face of such new Right, the right to receive the
Right Shares then underlying this Right (or in the case of a new Right being issued pursuant to Section 7(a) or Section 7(c), the Right
Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Rights issued in connection
with such issuance, does not exceed the number of Right Shares then underlying this Right), (iii) shall have an settlement date, as indicated
on the face of such new Right which is the same as the Settlement Date, (iv) shall have an exchange date, as indicated on the face of
such new Right which is the same as the Exchange Date and (v) shall have the same rights and conditions as this Right.
8.
NOTICES. Whenever notice is required to be given under this Right, unless otherwise provided herein, such notice shall be given
at its last address as it shall appear upon the right register of the Company. The Company shall provide the Holder with prompt written
notice of all actions taken pursuant to this Right (other than the issuance of shares of Common Stock upon exercise in accordance with
the terms hereof), 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) promptly upon each adjustment of the number of Right Shares,
setting forth in reasonable detail, and certifying, the calculation of such adjustment(s), (ii) at least ten Trading 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 shares of Common
Stock, (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 shares of Common Stock 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, and (iii) the existence of a proposed Fundamental Transaction at least ten
(10) Trading Days prior to the consummation of such Fundamental Transaction. To the extent that any notice provided hereunder constitutes,
or contains, material, non-public information regarding the Company or any Company Subsidiary, the Company shall simultaneously file
such notice with the SEC pursuant to a Current Report on Form 8-K. It is expressly understood and agreed that the time of execution specified
by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.
9.
DISCLOSURE. Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance
with the terms of this Right, unless the Company has in good faith determined that the matters relating to such notice do not constitute
material, non-public information relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York
city time on the Business Day immediately following such notice delivery date, publicly disclose such material, non-public information
on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, non-public information
relating to the Company or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice
(or immediately upon receipt of notice from the Holder, as applicable), and in the absence of any such written indication in such notice
(or notification from the Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information
contained in the notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing
contained in this Section 9 shall limit any obligations of the Company, or any rights of the Holder regarding the Company’s disclosures
of material, non-public information in connection with the filing of a Current Report on Form 8-K or otherwise.
10.
ABSENCE OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent
of the Company and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company
or (b) refrain from trading any securities while in possession of such information in the absence of a written non-disclosure agreement
signed by an officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such
an executed, written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by
the Company, may possess and use any information provided by the Company in connection with such trading activity, and may disclose any
such information to any third party.
11.
AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Right (other than Section 1(f)) may be amended
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. No waiver shall be effective unless it is in writing and signed by an authorized
representative of the waiving party.
12.
SEVERABILITY. If any provision of this Right 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 Right so long as this Right 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).
13.
GOVERNING LAW. This Right shall be governed by and construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Right 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 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 its principal executive office and agrees that such service shall constitute good and sufficient service of process and
notice thereof. 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. 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 TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS RIGHT OR ANY TRANSACTION CONTEMPLATED HEREBY.
14.
CONSTRUCTION; HEADINGS. This Right shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed
against any Person as the drafter hereof. The headings of this Right are for convenience of reference and shall not form part of, or
affect the interpretation of, this Right.
15.
DISPUTE RESOLUTION.
(a)
Submission to Dispute Resolution.
(i)
In the case of a dispute relating to the Closing Sale Price or fair market value or the arithmetic calculation of the number of Right
Shares (as the case may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company
or the Holder (as the case may be) shall submit the dispute to the other party via facsimile (A) if by the Company, within two (2) Business
Days after the occurrence of the circumstances giving rise to such dispute or (B) if by the Holder, at any time after the Holder learned
of the circumstances giving rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute relating
to such Closing Sale Price or such fair market value or such arithmetic calculation of the number of Right Shares (as the case may be),
at any time after the second (2nd) Business Day following such initial notice by the Company or the Holder (as the case may
be) of such dispute to the Company or the Holder (as the case may be), then the Holder may, at its sole option, select an independent,
reputable investment bank to resolve such dispute.
(ii)
The Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance
with the first sentence of this Section 13 and (B) written documentation supporting its position with respect to such dispute, in each
case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date on which the
Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents referred to in the immediately
preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”) (it being
understood and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation by the Dispute
Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (and
hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with respect to such
dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to
such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company and the Holder
or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit any written
documentation or other support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).
(iii)
The Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the
Holder of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses
of such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final
and binding upon all parties absent manifest error.
(b)
Miscellaneous. The Company expressly acknowledges and agrees that (i) this Section 13 constitutes an agreement to arbitrate between
the Company and the Holder (and constitutes an arbitration agreement) under the rules then in effect under § 7501, et seq. of the
New York Civil Practice Law and Rules (“CPLR”) and that the Holder is authorized to apply for an order to compel arbitration
pursuant to CPLR § 7503(a) in order to compel compliance with this Section 13, (ii) the Holder (and only the Holder), in its sole
discretion, shall have the right to submit any dispute described in this Section 13 to any state or federal court sitting in The City
of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this Section 15 and (iii) nothing in this Section
13 shall limit the Holder from obtaining any injunctive relief or other equitable remedies (including, without limitation, with respect
to any matters described in this Section 15).
16.
REMEDIES, CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Right shall be cumulative
and in addition to all other remedies available under this Right, 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 and consequential damages for any failure
by the Company to comply with the terms of this Right. The Company covenants to the Holder that there shall be no characterization concerning
this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, exercises
and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided
herein, be subject to any other obligation of the Company (or the performance thereof). 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 Right shall be entitled,
in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive or other
equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without
posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested by the
Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Right (including, without
limitation, compliance with Section 2 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the exercise
of this Right shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect thereof, provided
that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery
of any certificate in a name other than the Holder or its agent on its behalf.
17.
PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Right is placed in the hands of an attorney for collection or
enforcement or is collected or enforced through any legal proceeding or the holder otherwise takes action to collect amounts due under
this Right or to enforce the provisions of this Right or (b) there occurs any bankruptcy, reorganization, receivership of the company
or other proceedings affecting company creditors’ rights and involving a claim under this Right, then the Company shall pay the
costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership
or other proceeding, including, without limitation, attorneys’ fees and disbursements.
18.
TRANSFER. This Right may be offered for sale, sold, transferred or assigned without the consent of the Company, except as may
otherwise be required to comply with the 1933 Act and applicable state securities laws.
19.
CERTAIN DEFINITIONS. For purposes of this Right, the following terms shall have the following meanings:
(a)
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(b)
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c)
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled
by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a
Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of
directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
(d)
“Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including,
any funds, feeder funds or managed accounts, currently, or from time to time after the Exchange 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 Company’s Common Stock 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)
“Bloomberg” means Bloomberg, L.P.
(f)
“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; provided, however, for clarification,
commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
(g)
“Closing Sale Price” means, for any security as of any date, the last closing trade price 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 trade price, then the last trade price 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 trade price 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
does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any
market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions
of reporting prices). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases,
the Closing Sale 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 in
accordance with the procedures in Section 13. All such determinations shall be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during such period.
(h)
“Common Stock” means (i) the Company’s shares of common stock, $0.0001 par value per share, and (ii) any capital
stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.
(i)
“Company Subsidiaries” means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding
capital stock or holds any equity or similar interest of such Person, or (II) controls or operates all or any part of the business, operations
or administration of such Person, and each of the foregoing, is individually referred to herein as a “Company Subsidiary”.
(j)
“Convertible Securities” means any stock or other security (other than Options) that is at any time and under any
circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof
to acquire, any shares of Common Stock.
(k)
“Eligible Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq
Global Market, the OTCQB or the Principal Market.
(l)
“Expiration Date” means the date that is the fifth (5th) anniversary of the Initial Exercisability Date
or, if such date falls on a day other than a Trading Day or on which trading does not take place on the Principal Market (a “Holiday”),
the next date that is not a Holiday.
(m)
“Free Tradability Condition” means the satisfaction of any of the following conditions in connection with the issuance
of Rights Shares: (i) a registration statement covering the resale of such Rights Shares is effective under the 1933 Act, (ii) following
any sale of such Rights Shares pursuant to Rule 144 (assuming transferor is not an affiliate of the Company), (iii) if such Rights Shares
are eligible to be sold, assigned or transferred under Rule 144 (provided that the Holder provides the Company with reasonable assurances,
which shall not include an opinion of such Holder’s counsel, that such Rights Shares are eligible for sale, assignment or transfer
under Rule 144), or (iv) if a restrictive legend is not required under applicable requirements of the 1933 Act (including, without limitation,
controlling judicial interpretations and pronouncements issued by the SEC).
(n)
“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 Stock 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 either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of
Common Stock calculated as if any shares of Common Stock 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 shares of Common Stock
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
shares of Common Stock, or (iv) consummate a stock or share 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 shares of Common Stock, (y) at least 50% of the
outstanding shares of Common Stock calculated as if any shares of Common Stock 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 shares of Common Stock 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 shares of Common Stock or (v) reorganize, recapitalize or reclassify
its Common Stock, (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 shares of Common Stock, 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
Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such
Subject Entities as of the date of this Right calculated as if any shares of Common Stock held by all such Subject Entities were not
outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock
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 shares of Common Stock 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.
(o)
“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.
(p)
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible
Securities.
(q)
“Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose
common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent
Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(r)
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization, any other entity or a government or any department or agency thereof.
(s)
“Principal Market” means The Pink Open Market.
(t)
“Registration Rights Agreement” means that certain registration rights agreement, dated as of the Exchange Date, by
and among the Company and the initial holders of Rights relating to, among other things, the registration of the resale of the Common
Stock issuable upon exercise of the Rights, as may be amended from time to time.
(u)
“Rights” means the Company’s Series A Rights to Receive Common Stock and Series B Rights to Receive Common Stock.
(v)
“Rule 144” means Rule 144 promulgated under the 1933 Act.
(w)
“SEC” means the United States Securities and Exchange Commission or the successor thereto.
(x)
“Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(y)
“Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from
or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental
Transaction shall have been entered into.
(z)
“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the
Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading
market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded,
provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or
market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange
or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during
the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or
(y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which
The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(aa)
“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal
Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange
or securities market on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00
p.m., New York time, as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) 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 a.m., New York time, and ending at 4:00 p.m., New York time, 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 in
The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated
for such security on such date on any of the foregoing bases, the VWAP 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 in accordance with the procedures in Section 15. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
[signature
page follows]
IN
WITNESS WHEREOF, the Company has caused this Right to Receive Common Stock to be duly executed as of the Date of Issuance set forth
above.
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TraqIQ,
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
RIGHT TO RECEIVE COMMON STOCK
TRAQIQ,
INC.
The
undersigned holder hereby exercises the right to receive _________________ of the shares of Common Stock (“Right Shares”)
of TraqIQ, Inc., a California corporation (the “Company”), evidenced by the Series A Right to Receive Common Stock
No. _______ (the “Right”). Capitalized terms used herein and not otherwise defined shall have the respective meanings
set forth in the Right.
The
Company shall deliver to Holder, or its designee or agent as specified below, __________ Right Shares in accordance with the terms of
the Right. Delivery shall be made to Holder, or for its benefit, as follows:
☐
Check here if requesting delivery as a certificate to the following name and to the following address:
☐
Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
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DTC
Participant: |
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DTC
Number: |
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Account
Number: |
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☐
Check here if no registration statement registering the resale of the Rights Shares is available, but the Rights Shares are eligible
to be resold by the Holder pursuant to Rule 144
[PLEASE
INITIAL THE FOLLOWING CERTIFICATIONS AS YOUR AGREEMENT TO COMPLY THEREWITH IN CONNECTION WITH THE RESALES OF THE RIGHTS SHARES SET FORTH
ABOVE IN ACCORDANCE WITH RULE 144]
__________ |
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The
undersigned holder acknowledges that it intends to sell the Rights Shares exercised hereunder pursuant to the exemption provided
by Rule 144. Unless the one year holding period set forth in Rule 144(d) has been satisfied prior to the initial date after the date
hereof that the Company is obligated to file a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (the “Next
Current Information Filing Date”), the undersigned holder represents that the undersigned holder intends to sell all such
Rights Shares prior to such Next Current Information Filing Date. |
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__________ |
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Until
the one-year holding period set forth in Rule 144(d) has been satisfied, the undersigned holder covenants and agrees not to sell
such Rights Shares pursuant to Rule 144 at any time the Company has delivered written notice to the undersigned holder that the Company
is not in compliance with the reporting requirements contained in Rule 144(c)(1). |
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__________ |
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If
any such Rights Shares are not resold prior to the Next Current Information Filing Date, if requested by the Company, the undersigned
holder agrees to immediately return the Rights Shares to the Transfer Agent and have a restrictive legend placed on a certificate
evidencing any such unsold Right Shares. |
Date:
_____________ __, ____ |
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Name
of Registered Holder |
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EXHIBIT
B
ACKNOWLEDGMENT
TRAQIQ,
INC.
Attn:
Nora Marckwordt
Equity
Stock Transfer
237
West 37th Street, Suite 602
New
York, NY 10018
nora@equitystock.com
Re:
|
TraqIQ,
Inc. (the “Company”) |
Please
issue an aggregate of ____________ shares of the Company’s Common Stock (“Right Shares”), pursuant to
the exercise of ____________ Rights by _______________ (the “Holder”).
The
Company has received full consideration, and the Right Shares are fully paid and non-assessable. The Right Shares are [fully registered
under Form S-[____] (SEC Registration Number 333-[_________])][are eligible to be resold by the Holder pursuant to Rule 144 of the Securities
Act of 1933, as amended.
In
accordance with the Transfer Agent Instructions dated ________, 2023, please issue the Right Shares pursuant to the delivery instructions
disclosed in the attached Exercise Notice. Note that the Holder’s address and Tax ID is listed in the Exercise Notice.
If
you have any questions or require any other documentation in connection herewith, please contact the undersigned.
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Very
truly yours, |
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TraqIQ,
Inc. |
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By: |
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Name: |
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Title: |
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EXHIBIT
C
ACKNOWLEDGMENT
TRAQIQ,
INC.
Attn:
Nora Marckwordt
Equity
Stock Transfer
237
West 37th Street, Suite 602
New
York, NY 10018
nora@equitystock.com
Re:
|
TraqIQ,
Inc. (the “Company”) |
Please
issue an aggregate of ____________ restricted shares of the Company’s Common Stock (“Right Shares”),
pursuant to the exercise of ____________ Rights by _______________ (the “Holder”).
The
Company has received full consideration, and the Right Shares are fully paid and non-assessable.
In
accordance with the Transfer Agent Instructions dated ________, 2023, please issue the Right Shares pursuant to the delivery instructions
disclosed in the attached Exercise Notice. Note that the Holder’s address and Tax ID is listed in the Exercise Notice.
The
legend set forth below should be placed on the certificates for such Rights Shares:
[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 TO
THE HOLDER (IF REQUESTED), THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE 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.
If
you have any questions or require any other documentation in connection herewith, please contact the undersigned.
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Very
truly yours, |
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TraqIQ,
Inc. |
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By: |
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Name: |
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Title: |
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v3.23.2
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