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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): December
28, 2023
Aditxt, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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001-39336 |
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82-3204328 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
737 N. Fifth Street, Suite 200 Richmond, VA |
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23219 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (650) 870-1200
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
☐ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | 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 |
Common Stock, par value $0.001 |
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ADTX |
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The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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.
As previously reported in a Current Report on
Form 8-K filed by Aditxt, Inc., a Delaware corporation (the “Company”), on July 28, 2023, the Company entered into
a Securities Purchase Agreement (the “SPA”) with an accredited investor (the “Noteholder”), pursuant
to which the Company issued and sold a secured promissory note in the principal amount of $2,625,000 (the “Note”).
As of December 28, 2023, the outstanding balance on the Note, including all accrued and unpaid interest thereon was $2,738,020.83.
On December 29, 2023, the Company entered into
an Exchange Agreement (the “Note Exchange Agreement”) with the Noteholder, pursuant to which the Noteholder agreed,
subject to the terms and conditions set forth therein, to exchange the Note, including all accrued but unpaid interest thereon, for an
aggregate of 2,625 shares of a new series of convertible preferred stock of the Company, designated as Series B-2 Convertible Preferred
Stock, $0.001 par value (the “Series B-2 Preferred Stock”).
In connection with the Note Exchange Agreement,
the Company and certain of its officers and directors entered into a Voting Agreement (the “Voting Agreement”) with
the Noteholder, pursuant to which such officers and directors agreed to vote any and all shares of Common Stock or other capital stock
of the Company which they own, directly or indirectly, in favor of any proposal to issue the Noteholder a number of shares of Common Stock
that would require approval of the Company’s stockholders in order for such issuance to be in compliance with Nasdaq Rule 5635(a)(1)
or 5635(d), and any other applicable rules and regulations of The Nasdaq Stock Market.
The information set forth below in “Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year” relating to the Series B-2 Preferred Stock and the
Series B-2 Certificate of Designations (defined below) is incorporated by reference herein in its entirety. The foregoing descriptions
of the Series B-2 Certificate of Designations, the Note Exchange Agreement, and the Voting Agreement do not purport to be complete and
are qualified in their entirety by reference to the full text of the Series B-2 Certificate of Designations, the Note Exchange Agreement,
and the Voting Agreement, copies of which are attached hereto as Exhibits 3.1 10.1, and 10.2, respectively.
Item 3.01 Notice of Delisting or Failure to
Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously reported in a Current Report on
Form 8-K filed by the Company, on September 29, 2023, the Company received written notice from The Nasdaq Capital Market (“Nasdaq”)
that the Hearing Panel had granted the Company an exception through December 26, 2023 to allow the Company to complete its plan to demonstrate
compliance with Nasdaq Listing Rule 5550(b)(1) (the “Stockholders’ Equity Rule”) and Nasdaq Listing Rule 5550(a)(4)
(the “Public Float Rule”). On November 21, 2023, the Company received written notice from Nasdaq that it had regained
compliance with the Public Float Rule. On December 29, 2023, the Company received written notice from Nasdaq that it had regained compliance
with the Stockholders’ Equity Rule, but will be subject to a Mandatory Panel Monitor for a period of one year.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth in “Item 1.01
Entry into a Material Definitive Agreement” relating to the issuance of the Series B-2 Preferred Stock pursuant to the Note Exchange
Agreement is incorporated by reference herein in its entirety. The Company will issue the Series B-2 Preferred Stock in reliance upon
the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Rule 506(b) of Regulation D promulgated thereunder.
Item 5.03 Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year.
Series B-2 Certificate of Designations
On December 28, 2023, the Company filed a Certificate
of Designations for its Series B-2 Preferred Stock with the Secretary of State of Delaware (the “Series B-2 Certificate of Designations”).
The following is only a summary of the Series B-2 Certificate of Designations, and is qualified in its entirety by reference to the full
text of the Series B-2 Certificate of Designations, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is
incorporated by reference herein.
Designation, Amount,
and Par Value. The number of Series B-2 Preferred Stock designated is 2,625 shares. The shares of Series B-2 Preferred Stock have
a par value of $0.001 per share and a stated value of $1,000 per share.
Conversion Price.
The Series B-2 Preferred Stock will be convertible into shares of Common Stock at an initial conversion price of $4.71 (subject to adjustment
pursuant to the Series B-2 Certificate of Designations) (the “Conversion Price”). The
Series B-2 Certificate of Designations also provides that in the event of certain Triggering Events (as defined below) any holder may,
at any time, convert any or all of such holder’s Series B-2 Preferred Stock at an alternate
conversion rate equal to the product of (i) the Alternate Conversion Price (as defined below) and (ii) the quotient of (x) the 125% redemption
premium multiplied by (y) the amount of Series B-2 Preferred Stock subject to such conversion.
“Triggering Events” include, among others, (i) a suspension of trading or the failure to be traded or listed on an eligible
market for five consecutive days or more, (ii) the failure to remove restrictive legends when required, (iii) the Company’s default
in payment of indebtedness in an aggregate amount of $500,000 or more, (iv) proceedings for a bankruptcy, insolvency, reorganization or
liquidation, which are not dismissed with 30 days, (v) commencement of a voluntary bankruptcy proceeding, and (viii) final judgments against
the Company for the payment of money in excess of $500,000. “Alternate Conversion Price” means the lowest of (i) the
applicable conversion price the in effect, (ii) the greater of (x) $0.9420 (the “Floor Price”) and (y) 80% of the lowest
volume weighted average price (“VWAP”) of the Common Stock during the five consecutive trading day period ending and including
the the trading day immediately preceding the delivery of the applicable conversion notice. Further, the Series B-2 Certificate
of Designations provides that if on any of the 90th and 180th day after each of the occurrence of any Stock Combination Event
(as defined in the Series B-2 Certificate of Designations) and the Applicable Date (as defined
in the Series B-2 Certificate of Designations), the conversion price then in effect is greater
than the market price then in effect (the “Adjustment Price”), on such date then the conversion price shall automatically
lower to the Adjustment Price.
Dividends. Holders
of the Series B-2 Preferred Stock shall be entitled to receive dividends when and as declared by the Board, from time to time, in its
sole discretion, which Dividends shall be paid by the Company out of funds legally available therefor, payable, subject to the conditions
and other terms hereof, in cash, in securities of the Company or any other entity, or using assets as determined by the Board on the Stated
Value of such Preferred Share.
Liquidation. In
the event of a Liquidation Event (as defined in the Series B-2 Certificate of Designations), the holders the Series B-2 Preferred Stock
shall be entitled to receive in cash out of the assets of the Company, before any amount shall be paid to the holders of any other shares
of capital stock of the Company, equal to the greater of (A) 125% of the Conversion Amount (as defined in the Series B-2 Certificate of
Designation) on the date of such payment and (B) the amount per share such holder of Series B-2 Preferred Stock would receive if they
converted such share of Series B-2 Preferred Stock into Common Stock immediately prior to the date of such payment.
Company Redemption.
The Company may redeem all, or any portion, of the Series B-2 Preferred Stock for cash, at a price per share of Series B-2 Preferred Stock
equal to 115% of the greater of (i) the Conversion Amount (as defined in the Series B-2 Certificate of Designations) being redeemed as
of the Company Optional Redemption Date (as defined in the Series B-2 Certificate of Designations) and (ii) the product of (1) the Conversion
Rate (as defined in the Series B-2 Certificate of Designations) with respect to the Conversion Amount being redeemed as of the Company
Optional Redemption Date multiplied by (2) the greatest Closing Sale Price (as defined in the Series B-2 Certificate of Designations)
of the Common Stock on any Trading Day during the period commencing on the date immediately preceding such Company Optional Redemption
Notice Date (as defined in the Series B-2 Certificate of Designations) and ending on the Trading Day immediately prior to the date the
Company makes the entire payment required to be made under the Certification of Designation.
Maximum Percentage.
Holders of Series B-2 Preferred Stock are prohibited from converting shares of Series B-2 Preferred Stock into shares of Common Stock
if, as a result of such conversion, such holder, together with its affiliates, would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the total number of shares of Common Stock issued and outstanding immediately after giving effect to such conversion.
Voting Rights. The
holders of the Series B-2 Preferred Stock shall have no voting power and no right to vote on any matter at any time, either as a separate
series or class or together with any other series or class of share of capital stock, and shall not be entitled to call a meeting of such
holders for any purpose nor shall they be entitled to participate in any meeting of the holders of Common Stock, except as expressly provided
in the Series B-2 Certificate of Designations and where required by the DGCL.
Item 8.01 Other Events.
As previously reported in a Current Report on
Form 8-K filed by the Company, on December 11, 2023, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with Adicure, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger
Sub”) and Evofem Biosciences, Inc., a Delaware corporation (“Evofem”), pursuant to which, Merger Sub will
be merged into and with Evofem (the “Merger”), with Evofem surviving the Merger as a wholly owned subsidiary of the
Company. Pursuant to the Merger Agreement and prior to the closing of the transactions contemplated by the Merger Agreement, the Company
will enter into exchange agreements, with the holders of certain convertible securities and purchase rights of Evofem (the “Holders”),
pursuant to which the Holders will exchange such securities for an aggregate of not more than 86,153 shares of the Company’s Series
A-1 Convertible Preferred Stock, par value $0.001 (the “Series A-1 Preferred Stock”). As reported in a Current Report
on Form 8-K filed by the Company, on December 26, 2023, the Company entered in an exchange agreement (the “Exchange Agreement”)
with certain of the Holders, pursuant to which such Holders agreed to exchange an aggregate of 22,280 shares of Series F-1 Convertible
Preferred Stock of Evofem for an aggregate of 22,280 shares of Series A-1 Preferred Stock of the Company. In addition to the transactions
contemplated by the Merger Agreement, Note Exchange Agreement and the Exchange Agreement, the Company intends to issue additional shares
of convertible preferred stock pursuant to other acquisitions or strategic transactions with a stated value of no more than $10 million
in the aggregate, on terms no more favorable than the Series A-1 Preferred Stock or Series B-2 Preferred Stock.
On January 2, 2024, the Company issued a press
release announcing that it had regained compliance with the Stockholders’ Equity Rule. A copy of the press release is attached hereto
as Exhibit 99.1 and is incorporated by reference herein.
Cautionary Note on Forward-Looking Statements
This
Current Report on Form 8-K contains certain forward-looking statements within the meaning of the “safe harbor “provisions
under the United States Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained
in this Current Report on Form 8-K, including statements regarding the Company’s
or Evofem’s future results of operations and financial position are forward-looking statements. These forward-looking statements
generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,”
“target,” “intend,” “strategy,” “future,” “opportunity,” “plan,”
“may,” “should,” “will,” “would,” “will be,” “will continue,”
“will likely result,” and similar expressions. These statements are based on various assumptions, whether or not
identified in this Current Report on Form 8-K, and on the current expectations of the respective management teams of the Company and Evofem
and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not
intended to serve as, and must not be relied on by an investor as, a guarantee, an assurance, a prediction or a definitive statement of
fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual
events and circumstances are beyond the control of the Company and Evofem.
These
forward-looking statements are subject to a number of risks including, but not limited to, the following risks relating to the proposed
transactions: (1) the risk that the proposed transactions may not be completed in a timely manner or at all, which may adversely affect
the price of the Company’s securities; (2) the failure to satisfy the conditions to closing, including the approval by the stockholders
of the Company; (3) the ability to realize the anticipated benefits of the proposed transactions; and (4) other risks and
uncertainties indicated from time to time in the Company’s public filings with the SEC. If any of these risks materialize or the
Company’s and Evofem’s assumptions prove incorrect, actual results could differ materially from the results implied by these
forward-looking statements. You should carefully consider the risks and uncertainties described in the “Risk Factors” section
of our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and other documents we filed, or will file, including the
proxy statement/prospectus, with the SEC. There may be additional risks that neither the Company nor Evofem presently know, or that the
Company or Evofem currently believe are immaterial, that could also cause actual results to differ from those contained in the forward-looking
statements. In addition, forward-looking statements reflect the Company’s and Evofem’s expectations, plans or forecasts of
future events and views as of the date of this Current Report on Form 8-K. The Company and Evofem anticipate that subsequent events and
developments will cause the Company’s and Evofem’s assessments to change. However, while the Company and Evofem may elect
to update these forward-looking statements at some point in the future, the Company and Evofem specifically disclaim any obligation to
do so, except as otherwise required by law. These forward-looking statements should not be relied upon as representing the Company’s
and Evofem’s assessments of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should
not be placed upon the forward-looking statements.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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ADITXT, INC. |
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Date: January 2, 2024 |
By: |
/s/ Amro Albanna |
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Amro Albanna |
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Chief Executive Officer |
-5-
Exhibit 3.1
CERTIFICATE
OF DESIGNATIONS
OF RIGHTS AND PREFERENCES OF
SERIES B-2 CONVERTIBLE PREFERRED STOCK
OF
ADITXT, INC.
I,
Amro Albanna, hereby certify that I am the Chief Executive Officer and a Director of Aditxt, Inc. (the “Company”),
a corporation organized and existing under the Chapter 78 of the Delaware General Corporation Law (the “DGCL”), and
further do hereby certify:
That
pursuant to the authority expressly conferred upon the Board of Directors of the Company (the “Board”) by the Company’s
Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and Section 151(g)
of the DGCL, the Board on December 28, 2023 adopted the following resolution determining it desirable and in the best interests of the
Company and its stockholders for the Company to create a series of two thousand six hundred twenty five (2,625) shares of preferred stock
designated as “Series B-2 Convertible Preferred Stock”, none of which shares have been issued, to be issued pursuant
to the Exchange Agreement (as defined below), in accordance with the terms of the Exchange Agreement:
RESOLVED,
that pursuant to the authority vested in the Board, in accordance with the provisions of the Certificate of Incorporation, a series of
preferred stock, par value $0.001 per share, of the Company be and hereby is created pursuant to this certificate of designations (this
“Certificate of Designations”), and that the designation and number of shares established pursuant hereto and the
voting and other powers, preferences and relative, participating, optional or other rights of the shares of such series and the qualifications,
limitations and restrictions thereof are as follows:
TERMS
OF SERIES B-2 CONVERTIBLE PREFERRED STOCK
1. Designation
and Number of Shares. There shall hereby be created and established a series of preferred stock of the Company designated as “Series
B-2 Convertible Preferred Stock” (the “Series B-2 Convertible Preferred Stock”). The authorized number of shares
of Series B-2 Convertible Preferred Stock (the “Preferred Shares”) shall two thousand six hundred twenty five (2,625)
shares. Each Preferred Share shall have a par value of $0.001 per share. Capitalized terms not defined herein shall have the meaning
as set forth in Section 32 below.
2. Ranking.
Except (i) for shares of Senior Preferred Stock (as defined below) to be issued to the parties identified in Schedule 5.5 of the Exchange
Agreement pursuant to the transactions contemplated by the Merger Agreement (the “Specified Senior Preferred Stock”),
shares of Parity Stock (as defined below) to be issued pursuant to the transactions contemplated by the Merger Agreement (as defined
below) to be issued pursuant to the transactions contemplated by the Merger Agreement, shares of Parity Stock to be issued pursuant to
the transactions contemplated by the Evofem Exchange Agreement (as defined below), and shares of Parity Stock to be issued pursuant to
the transactions contemplated by the Purchase Agreement or (ii) to the extent that the Required Holders expressly consent to the creation
of Parity Stock or Senior Preferred Stock in accordance with Section 16, all shares of capital stock of the Company shall be junior in
rank to all Preferred Shares with respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution
and winding up of the Company (such junior stock is referred to herein collectively as “Junior Stock”). For the avoidance
of doubt, the Preferred Shares will, with respect to dividend rights and rights on liquidation, winding-up and dissolution, rank (i)
junior to the Specified Senior Preferred Stock, (ii) on parity with the Parity Stock issued pursuant to the transactions contemplated
by the Merger Agreement, (iii) on parity with the Parity Stock issued pursuant to the transactions contemplated by the Purchase Agreement
Agreement and (iv) senior to the Junior Stock. The rights of all such shares of capital stock of the Company shall be subject to the
rights, powers, preferences and privileges of the Preferred Shares. Without limiting any other provision of this Certificate of Designations,
without the prior express consent of the Required Holders, voting separately as a single class, the Company shall not hereafter authorize
or issue any additional or other shares of capital stock that is (i) of senior rank to the Preferred Shares in respect of the preferences
as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Company (collectively, the “Senior
Preferred Stock”), other than the Specified Senior Preferred Stock, (ii) of pari passu rank to the Preferred Shares in respect
of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Company (collectively,
the “Parity Stock”), other than Parity Stock to be issued pursuant to the transactions contemplated by the Merger
Agreement, and Parity Stock to be issued pursuant to the transactions contemplated by the Purchase Agreement or the Evofem Exchange Agreement,
or (iii) any Junior Stock having a maturity date or any other date requiring redemption or repayment of such shares of Junior Stock that
is prior to the first anniversary of the Initial Issuance Date. In the event of the merger or consolidation of the Company with or into
another corporation, the Preferred Shares shall maintain their relative rights, powers, designations, privileges and preferences provided
for herein and no such merger or consolidation shall result inconsistent therewith.
3. Dividends.
In addition to Section 7, Section 8 and/or Section 15 below, as applicable, subject to the senior rights of the holders of shares of
the Specified Senior Preferred Stock, and pari passu with the holders of shares of Parity Stock, from and after the first date of issuance
of any Preferred Shares (the “Initial Issuance Date”), each holder of a Preferred Share (each, a “Holder”
and collectively, the “Holders”) shall be entitled to receive dividends (“Dividends”) when and
as declared by the Board, from time to time, in its sole discretion, which Dividends shall be paid by the Company out of funds legally
available therefor, payable, subject to the conditions and other terms hereof, in cash, in securities of the Company or any other entity,
or using assets as determined by the Board on the Stated Value of such Preferred Share.
4. Conversion.
At any time after the Initial Issuance Date, each Preferred Share shall be convertible into validly issued, fully paid and non-assessable
shares of Common Stock (the “Conversion Shares”), on the terms and conditions set forth in this Section 4.
(a) Holder’s
Conversion Right. Subject to the provisions of Section 4(d), at any time or times on or after the Initial Issuance Date, each Holder
shall be entitled to convert any portion of the outstanding Preferred Shares held by such Holder into validly issued, fully paid and
non-assessable Conversion Shares in accordance with Section 4(c) at the Conversion Rate (as defined below). The Company shall not issue
any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of
Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole share. The Company shall pay any
and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Company’s
transfer agent (the “Transfer Agent”)) that may be payable with respect to the issuance and delivery of Common Stock
upon conversion of any Preferred Shares.
(b) Conversion
Rate. Except as otherwise provided herein, the number of Conversion Shares issuable upon conversion of any Preferred Share pursuant
to this Section 4 shall be determined by dividing (x) the Conversion Amount of such Preferred Share by (y) the Conversion Price (the
“Conversion Rate”).
For
purposes of this Certificate of Designations, the term “Conversion Amount” means, with respect to each Preferred Share,
as of the applicable date of determination, the sum of (1) the Stated Value thereof plus (2) any Additional Amount thereon as
of such date of determination plus (3) any other amounts owed to such Holder pursuant to this Certificate of Designations or any
Transaction Document.
For
purposes of this Certificate of Designations, the term “Conversion Price” means, with respect to each Preferred Share,
as of any Conversion Date or other date of determination, $4.71, subject to adjustment as provided herein.
(c) Mechanics
of Conversion. The conversion of each Preferred Share shall be conducted in the following manner:
(i)
Optional Conversion. To convert one or more Preferred Shares into Conversion Shares on any date (a “Conversion
Date”), a Holder shall deliver (whether via electronic mail or otherwise), for receipt on or prior to 11:59 p.m., New York
time, on such date, a copy of an executed notice of conversion of the Preferred Share(s) subject to such conversion in the form attached
hereto as Exhibit I (the “Conversion Notice”) to the Company. If required by Section 4(c)(ii), within
two (2) Trading Days following a conversion of any such Preferred Shares as aforesaid, such Holder shall surrender to a nationally recognized
overnight delivery service for delivery to the Company the original certificates, if any, representing the Preferred Shares (the “Preferred
Share Certificates”) so converted as aforesaid (or an indemnification undertaking with respect to the Preferred Shares in the
case of its loss, theft or destruction as contemplated by Section 18(b)). On or before the first (1st) Trading Day following
the date of receipt of a Conversion Notice, the Company shall transmit by electronic mail an acknowledgment of confirmation and representation
as to whether such shares of Common Stock may then be resold pursuant to Rule 144 or an effective and available registration statement,
in the form attached hereto as Exhibit II, of receipt of such Conversion Notice to such Holder and the Transfer Agent,
which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms
set forth herein. On or before the first (1st) Trading Day following each date on which the Company has received a Conversion
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 initiated on the applicable Conversion Date of such Conversion Shares issuable pursuant to such Conversion Notice) (the “Share
Delivery Deadline”), the Company shall (1) provided that the Transfer Agent is participating in FAST, credit such aggregate
number of Conversion Shares to which such Holder shall be entitled pursuant to such conversion to such Holder’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at Custodian system, or (2) if the Transfer Agent is not participating in FAST,
upon the request of such Holder, issue and deliver (via reputable overnight courier) to the address as specified in such Conversion Notice,
a certificate, registered in the name of such Holder or its designee, for the number of Conversion Shares to which such Holder shall
be entitled. If the number of Preferred Shares represented by the Preferred Share Certificate(s) submitted for conversion pursuant to
Section 4(c)(ii) is greater than the number of Preferred Shares being converted, then the Company shall, as soon as practicable and in
no event later than two (2) Trading Days after receipt of the Preferred Share Certificate(s) and at its own expense, issue and mail to
such Holder (or its designee) by overnight courier service a new Preferred Share Certificate or a new Book-Entry (in either case, in
accordance with Section 18(d)) representing the number of Preferred Shares not converted. The Person or Persons entitled to receive the
Conversion Shares issuable upon a conversion of Preferred Shares shall be treated for all purposes as the record holder or holders of
such Conversion Shares on the Conversion Date. Notwithstanding the foregoing, if a Holder delivers a Conversion Notice to the Company
prior to the date of issuance of Preferred Shares to such Holder, whereby such Holder elects to convert such Preferred Shares pursuant
to such Conversion Notice, the Share Delivery Deadline with respect to any such Conversion Notice shall be the later of (x) the date
of issuance of such Preferred Shares and (y) the first (1st) Trading Day after the date of such Conversion Notice. Notwithstanding anything
to the contrary contained in this Certificate of Designations or the Exchange Agreement, after the effective date of a registration statement
covering the resale of the Conversion Shares, the Company shall cause the Transfer Agent to deliver unlegended shares of Common Stock
to such Holder (or its designee) in connection with any sale of the Conversion Shares with respect to which such 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 such Holder has not yet settled.
(ii)
Company’s Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the
applicable Share Delivery Deadline, either (I) if the Transfer Agent is not participating in FAST, to issue and deliver to such Holder
(or its designee) a certificate for the number of Conversion Shares to which such Holder is entitled and register such Conversion Shares
on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit such Holder’s or its designee’s
balance account with DTC for such number of Conversion Shares to which such Holder is entitled upon such Holder’s conversion of
any Conversion Amount (as the case may be) or (II) if a registration statement covering the resale of the Conversion Shares that are
the subject of the Conversion Notice (the “Unavailable Conversion Shares”) is not available for the resale of such
Unavailable Conversion Shares and the Company fails to promptly, but in no event later than the applicable Share Delivery Deadline (x)
notify such Holder and (y) deliver the shares of Common Stock electronically without any restrictive legend by crediting such aggregate
number of shares of Common Stock to which such Holder is entitled pursuant to such conversion 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 “Conversion
Failure”), then, in addition to all other remedies available to such Holder, (X) the Company shall pay in cash to such Holder
on each day after the Share Delivery Deadline that the issuance of such Conversion Shares is not timely effected an amount equal to 2%
of the product of (A) the sum of the number of Conversion Shares not issued to such Holder on or prior to the Share Delivery Deadline
and to which such Holder is entitled, multiplied by (B) any trading price of the Common Stock selected by such Holder in writing as in
effect at any time during the period beginning on the applicable Conversion Date and ending on the applicable Share Delivery Deadline,
and (Y) such Holder, upon written notice to the Company, may void its Conversion Notice with respect to, and retain or have returned,
as the case may be, all, or any portion, of such Preferred Shares that has not been converted pursuant to such Conversion Notice; provided
that the voiding of a Conversion 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 4(c)(ii) or otherwise. In addition to the foregoing, if on or prior to the Share
Delivery Deadline either (A) the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver to such Holder
(or its designee) a certificate and register such Conversion Shares on the Company’s share register or, if the Transfer Agent is
participating in the FAST, the Transfer Agent shall fail to credit the balance account of such Holder or such Holder’s designee,
as applicable, with DTC for the number of Conversion Shares to which such Holder is entitled upon such Holder’s conversion hereunder
or pursuant to the Company’s obligation pursuant to clause (ii) below or (B) a Notice Failure occurs, and if on or after such Share
Delivery Deadline such 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 Conversion Shares issuable upon such conversion that such Holder is entitled to receive from the
Company and has not received from the Company in connection with such Conversion Failure or Notice Failure, as applicable (a “Buy-In”),
then, in addition to all other remedies available to such Holder, the Company shall, within two (2) Business Days after receipt of such
Holder’s request and in such Holder’s discretion, either: (I) pay cash to such Holder in an amount equal to such 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 such Holder) (the “Buy-In
Price”), at which point the Company’s obligation to so issue and deliver such certificate (and to issue such Conversion
Shares) or credit to the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Conversion
Shares to which such Holder is entitled upon such Holder’s conversion hereunder (as the case may be) (and to issue such Conversion
Shares) shall terminate, or (II) promptly honor its obligation to so issue and deliver to such Holder a certificate or certificates representing
such Conversion Shares or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the
number of Conversion Shares to which such Holder is entitled upon such Holder’s conversion hereunder (as the case may be) and pay
cash to such Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (x) such number of shares of Common
Stock multiplied by (y) the lowest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date
of the applicable Conversion Notice and ending on the date of such issuance and payment under this clause (II) (each, a “Buy-In
Payment Amount”). Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing Conversion Shares (or to electronically deliver such Conversion Shares) upon the
conversion of the Preferred Shares as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect
to any given Notice Failure and/or Conversion Failure, as applicable, this Section 4(c)(ii) shall not apply to a Holder to the extent
the Company has already paid such amounts in full to such Holder with respect to such Conversion Failure Notice Failure and/or Conversion
Failure, as applicable, pursuant to the analogous sections of any other agreement with such Holder.
(iii)
Registration; Book-Entry. At the time of issuance of any Preferred Shares hereunder, the applicable Holder may, by written
request (including by electronic-mail) to the Company, elect to receive such Preferred Shares in the form of one or more Preferred Share
Certificates or in Book-Entry form. The Company (or the Transfer Agent, as custodian for the Preferred Shares) shall maintain a register
(the “Register”) for the recordation of the names and addresses of the Holders of each Preferred Share and the Stated
Value of the Preferred Shares and whether the Preferred Shares are held by such Holder in Preferred Share Certificates or in Book-Entry
form (the “Registered Preferred Shares”). The entries in the Register shall be conclusive and binding for all purposes
absent manifest error. The Company and each Holder of the Preferred Shares shall treat each Person whose name is recorded in the Register
as the owner of a Preferred Share for all purposes (including, without limitation, the right to receive payments and Dividends hereunder)
notwithstanding notice to the contrary. A Registered Preferred Share may be assigned, transferred or sold only by registration of such
assignment or sale on the Register. Upon its receipt of a written request to assign, transfer or sell one or more Registered Preferred
Shares by such Holder thereof, the Company shall record the information contained therein in the Register and issue one or more new Registered
Preferred Shares in the same aggregate Stated Value as the Stated Value of the surrendered Registered Preferred Shares to the designated
assignee or transferee pursuant to Section 18, provided that if the Company does not so record an assignment, transfer or sale (as
the case may be) of such Registered Preferred Shares within two (2) Business Days of such a request, then the Register shall be automatically
deemed updated to reflect such assignment, transfer or sale (as the case may be). Notwithstanding anything to the contrary set forth
in this Section 4, following conversion of any Preferred Shares in accordance with the terms hereof, the applicable Holder shall
not be required to physically surrender such Preferred Shares held in the form of a Preferred Share Certificate to the Company unless
(A) the full or remaining number of Preferred Shares represented by the applicable Preferred Share Certificate are being converted (in
which event such certificate(s) shall be delivered to the Company as contemplated by this Section 4(c)(ii)) or (B) such Holder has provided
the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of Preferred Shares
upon physical surrender of the applicable Preferred Share Certificate. Each Holder and the Company shall maintain records showing the
Stated Value and Dividends converted and/or paid (as the case may be) and the dates of such conversions and/or payments (as the case
may be) or shall use such other method, reasonably satisfactory to such Holder and the Company, so as not to require physical surrender
of a Preferred Share Certificate upon conversion. If the Company does not update the Register to record such Stated Value and Dividends
converted and/or paid (as the case may be) and the dates of such conversions and/or payments (as the case may be) within two (2) Business
Days of such occurrence, then the Register shall be automatically deemed updated to reflect such occurrence. In the event of any dispute
or discrepancy, such records of such Holder establishing the number of Preferred Shares to which the record holder is entitled shall
be controlling and determinative in the absence of manifest error. A Holder and any transferee or assignee, by acceptance of a certificate,
acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of any Preferred Shares, the number of
Preferred Shares represented by such certificate may be less than the number of Preferred Shares stated on the face thereof. Each Preferred
Share Certificate shall bear the following legend:
ANY
TRANSFEREE OR ASSIGNEE OF THIS CERTIFICATE SHOULD CAREFULLY REVIEW THE TERMS OF THE CORPORATION’S CERTIFICATE OF DESIGNATIONS RELATING
TO THE SHARES OF SERIES B-2 CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE, INCLUDING SECTION 4(c)(ii) THEREOF. THE NUMBER
OF SHARES OF SERIES B-2 CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES B-2
CONVERTIBLE PREFERRED STOCK STATED ON THE FACE HEREOF PURSUANT TO SECTION 4(c)(ii) OF THE CERTIFICATE OF DESIGNATIONS RELATING TO THE
SHARES OF SERIES B-2 CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.
(iv)
Pro Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one Holder for the same
Conversion Date and the Company can convert some, but not all, of such Preferred Shares submitted for conversion, the Company shall convert
from each Holder electing to have Preferred Shares converted on such date a pro rata amount of such Holder’s Preferred Shares submitted
for conversion on such date based on the number of Preferred Shares submitted for conversion on such date by such Holder relative to
the aggregate number of Preferred Shares submitted for conversion on such date. In the event of a dispute as to the number of Conversion
Shares issuable to a Holder in connection with a conversion of Preferred Shares, the Company shall issue to such Holder the number of
Conversion Shares not in dispute and resolve such dispute in accordance with Section 23. If a Conversion Notice delivered to the Company
would result in a breach of Section 4(d) below, and the Holder does not elect in writing to withdraw, in whole, such Conversion Notice,
the Company shall hold such Conversion Notice in abeyance until such time as such Conversion Notice may be satisfied without violating
Section 4(d) below (with such calculations thereunder made as of the date such Conversion Notice was initially delivered to the Company).
(d) Limitation
on Beneficial Ownership.
(i)
Beneficial Ownership. The Company shall not effect the conversion of any of the Preferred Shares held by a Holder, and such Holder
shall not have the right to convert any of the Preferred Shares held by such Holder pursuant to the terms and conditions of this Certificate
of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to
such conversion, such 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 conversion.
For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and the other
Attribution Parties shall include the number of shares of Common Stock held by such Holder and all other Attribution Parties plus
the number of shares of Common Stock issuable upon conversion of the Preferred Shares 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) conversion of the remaining, nonconverted
Preferred Shares beneficially owned by such Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes, convertible preferred
stock or warrants, including the Preferred Shares) beneficially owned by such Holder or any other Attribution Party subject to a limitation
on conversion or exercise analogous to the limitation contained in this Section 4(d). For purposes of this Section 4(d), beneficial ownership
shall be calculated in accordance with Section 13(d) of the 1934 Act. For the avoidance of doubt, the calculation of the Maximum Percentage
shall take into account the concurrent exercise and/or conversion, as applicable, of the unexercised or unconverted portion of any other
securities of the Company beneficially owned by the Holder and/or any other Attribution Party, as applicable. For purposes of determining
the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Preferred Shares without exceeding
the Maximum Percentage, such 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 a Conversion Notice from a 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 such Holder in writing of the number of shares of Common Stock then
outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder’s beneficial ownership, as determined
pursuant to this Section 4(d), to exceed the Maximum Percentage, such Holder must notify the Company of a reduced number of shares of
Common Stock to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of any
Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to such 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 such Preferred Shares, by such 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 a Holder upon conversion of such Preferred Shares results in such 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 such 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 such Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written
notice to the Company, any 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 of such Holder 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 such Holder and the other
Attribution Parties and not to any other Holder that is not an Attribution Party of such Holder. For purposes of clarity, the shares
of Common Stock issuable to a Holder pursuant to the terms of this Certificate of Designations in excess of the Maximum Percentage shall
not be deemed to be beneficially owned by such 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 convert such Preferred Shares pursuant to this paragraph shall have any effect on the applicability
of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph
shall not be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d) 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 4(d) 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 such Preferred
Shares.
(ii)
Principal Market Regulation. The Company shall not issue any shares of Common Stock upon conversion of any Preferred Shares or
otherwise pursuant to the terms of this Certificate of Designations if the issuance of such shares of Common Stock would exceed the aggregate
number of shares of Common Stock which the Company may issue upon exercise or conversion (as the case may be) of the Preferred Shares
without breaching the Company’s obligations under the rules and regulations the listing rules of the Principal Market (the maximum
number of shares of Common Stock which may be issued without violating such rules and regulations, the “Exchange Cap”),
except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by
the applicable rules and regulations of the Principal Market for issuances of shares of Common Stock in excess of such amount (the “Stockholder
Approval Date”) or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which
opinion shall be reasonably satisfactory to the Required Holders. Until such approval or such written opinion is obtained, no Holder
shall be issued in the aggregate, upon conversion or exercise (as the case may be) of any Preferred Shares, shares of Common Stock in
an amount greater than the product of (i) the Exchange Cap as of the Initial Issuance Date multiplied by (ii) the quotient of (1) the
aggregate number of Preferred Shares issued to such Holder on the Initial Issuance Date divided by (2) the aggregate number of Preferred
Shares and Parity Stock outstanding as of the Initial Issuance Date (with respect to each Holder, the “Exchange Cap Allocation”).
In the event that any Holder shall sell or otherwise transfer any of such Holder’s Preferred Shares, the transferee shall be allocated
a pro rata portion of such Holder’s Exchange Cap Allocation with respect to such portion of such Preferred Shares so transferred,
and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation
so allocated to such transferee. Upon conversion in full of a Holder’s Preferred Shares, the difference (if any) between such
Holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such Holder upon such Holder’s
conversion in full of such Preferred Shares shall be allocated, to the respective Exchange Cap Allocations of the remaining holders of
Preferred Shares and Parity Stock outstanding as of the Initial Issuance Date, on a pro rata basis in proportion to the shares of Common
Stock underlying the Preferred Shares and/or Parity Stock then held by each such holder of Preferred Shares and/or Parity Stock outstanding
as of the Initial Issuance Date, as applicable.
(e) Right
of Alternate Conversion Upon a Triggering Event.
(i)
General. Subject to Section 4(d), at any time after the earlier of a Holder’s receipt of a Triggering Event Notice (as defined
below) and such Holder becoming aware of a Triggering Event (such earlier date, the “Alternate Conversion Right Commencement
Date”) and ending (such ending date, the “Alternate Conversion Right Expiration Date”, and each such period,
an “Alternate Conversion Right Period”) on the twentieth (20th) Trading Day after the later of (x) the
date such Triggering Event is cured and (y) such Holder’s receipt of a Triggering Event Notice that includes (I) a reasonable description
of the applicable Triggering Event, (II) a certification as to whether, in the reasonable opinion of the Company, such Triggering Event
is capable of being cured and, if applicable, a reasonable description of any existing plans of the Company to cure such Triggering Event
and (III) a certification as to the date the Triggering Event occurred and, if cured on or prior to the date of such Triggering Event
Notice, the applicable Alternate Conversion Right Expiration Date, such Holder may, at such Holder’s option, by delivery of a Conversion
Notice to the Company (the date of any such Conversion Notice, each an “Alternate Conversion Date”), convert all,
or any number of Preferred Shares held by such Holder into shares of Common Stock at the Alternate Conversion Price (each, an “Alternate
Conversion”).
(ii)
Mechanics of Alternate Conversion. On any Alternate Conversion Date, a Holder may voluntarily convert any number of Preferred
Shares held by such Holder pursuant to Section 4(c) (with “Alternate Conversion Price” replacing “Conversion Price”
for all purposes hereunder with respect to such Alternate Conversion and with “the applicable Required Premium multiplied by the
Conversion Amount” replacing “Conversion Amount” in clause (x) of the definition of Conversion Rate in Section 4(b)
above with respect to such Alternate Conversion) by designating in the Conversion Notice delivered pursuant to this Section 4(e) of this
Certificate of Designations that such Holder is electing to use the Alternate Conversion Price for such conversion; provided that in
the event of the Conversion Floor Price Condition, on the applicable Alternate Conversion Date the Stated Value of the remaining Preferred
Shares of such Holder shall automatically increase, pro rata, by the applicable Alternate Conversion Floor Amount or, at the Company’s
option, the Company shall deliver the applicable Alternate Conversion Floor Amount to the Holder on the applicable Alternate Conversion
Date. Notwithstanding anything to the contrary in this Section 4(e), but subject to Section 4(d), until the Company delivers to such
Holder the shares of Common Stock to which the Holder is entitled pursuant to the applicable Alternate Conversion of such Holder’s
Preferred Shares, such Preferred Shares may be converted by such Holder into shares of Common Stock pursuant to Section 4(c) without
regard to this Section 4(e).
5. Triggering
Events.
(a) General.
Each of the following events shall constitute a “Triggering Event” and each of the events in clauses 5(a)(ix), 5(a)(x),
and 5(a)(xi), shall constitute a “Bankruptcy Triggering Event”:
(i)
[RESERVED];
(ii)
[RESERVED];
(iii)
the suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on an Eligible Market for
a period of five (5) consecutive Trading Days or the delisting, removal or withdrawal, as applicable, of registration of the Common Stock
under the 1934 Act with respect to a going-private transaction;
(iv)
the Company’s failure (A) to cure a Conversion Failure by delivery of the required number of shares of Common Stock within
five (5) Trading Days after the applicable Conversion Date or exercise date (as the case may be) or (B) notice, written or oral, to any
holder of Preferred Shares, including, without limitation, by way of public announcement or through any of its agents, at any time, of
its intention not to comply, as required, with a request for conversion of any Preferred Shares into shares of Common Stock that is requested
in accordance with the provisions of this Certificate of Designations, other than pursuant to Section 4(d) hereof;
(v)
except to the extent the Company is in compliance with Section 11(b) below, at any time following the tenth (10th) consecutive
day that a Holder’s Authorized Share Allocation (as defined in Section 11(a) below) is less than the Required Reserve Amount as
of such date of determination;
(vi)
the Company’s failure to pay to any Holder any Dividend when required to be paid hereunder (whether or not declared by the
Board) or any other amount when and as due under this Certificate of Designations (including, without limitation, the Company’s
failure to pay any redemption payments or amounts hereunder), the Exchange Agreement or any other Transaction Document or any other agreement,
document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby (in each case,
whether or not permitted pursuant to the DGCL), except, in the case of a failure to pay Dividends when and as due, in each such case
only if such failure remains uncured for a period of at least two (2) Trading Days;
(vii)
the Company fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the applicable Holder
upon conversion of the Preferred Shares held by such Holder as and when required by this Certificate of Designations, unless otherwise
then prohibited by applicable federal securities laws, and any such failure remains uncured for at least five (5) days;
(viii)
the occurrence of any default under, redemption of or acceleration prior to maturity of at least an aggregate of $500,000 of indebtedness
for borrowed money of the Company or any of its Subsidiaries, excluding any indebtedness for borrowed money in which no cash payment
is required at such time pursuant to a forbearance agreement in full force and effect or any applicable grace period under the terms
of such indebtedness for borrowed money, except, in the case of a default or breach that is curable, only if such default or breach,
as applicable, remains uncured for a period of twenty (20) days;
(ix)
bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted
by or against the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be dismissed
within thirty (30) days of their initiation;
(x)
the commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company or any Subsidiary
in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Subsidiary or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the execution of a composition of debts, or the occurrence of any other similar federal, state or foreign
proceeding, or the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate
action by the Company or any Subsidiary in furtherance of any such action or the taking of any action by any Person to commence a Uniform
Commercial Code foreclosure sale or any other similar action under federal, state or foreign law;
(xi)
the entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of
a voluntary or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or
insolvent, or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or
in respect of the Company or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or
other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree, order, judgment or other similar document or any such other decree, order, judgment or other similar
document unstayed and in effect for a period of thirty (30) consecutive days;
(xii)
a final judgment or judgments for the payment of money aggregating in excess of $500,000 are rendered against the Company and/or
any of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or
stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment
which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $500,000 amount set
forth above so long as the Company provides each Holder a written statement from such insurer or indemnity provider (which written statement
shall be reasonably satisfactory to each Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company
or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance
of such judgment;
(xiii)
the Company and/or any Subsidiary, individually or in the aggregate, either (i) fails to pay, when due, or within any applicable
grace period, any payment with respect to any Indebtedness in excess of $500,000 due to any third party (other than, with respect to
unsecured Indebtedness only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper proceedings
and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach
or violation of any agreement for monies owed or owing in an amount in excess of $500,000, which breach or violation permits the other
party thereto to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance or
event that would, with or without the passage of time or the giving of notice, result in a default or event of default under any agreement
binding the Company or any Subsidiary, which default or event of default would or is likely to have a material adverse effect on the
business, assets, operations (including results thereof), liabilities, properties, condition (including financial condition) or prospects
of the Company or any of its Subsidiaries, individually or in the aggregate;
(xiv)
other than as specifically set forth in another clause of this Section 5(a), the Company or any Subsidiary breaches any representation
or warranty in any material respect (other than representations or warranties subject to material adverse effect or materiality, which
may not be breached in any respect) or any covenant or other term or condition of any Transaction Document, except, in the case of a
breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of five (5) consecutive
Trading Days;
(xv)
a false or inaccurate certification (including a false or inaccurate deemed certification) by the Company as to whether any Triggering
Event has occurred;
(xvi)
any Preferred Shares remain outstanding on or after December 22, 2026;
(xvii)
any breach or failure in any respect by the Company or any Subsidiary to comply with any provision of Section 13 of this Certificate
of Designations;
(xviii)
any Change of Control occurs;
(xix)
any Material Adverse Effect occurs; or
(xx)
any provision of any Transaction Document shall at any time for any reason (other than pursuant to the express terms thereof) cease
to be valid and binding on or enforceable against the parties thereto, or the validity or enforceability thereof shall be contested,
directly or indirectly, by the Company or any Subsidiary, or a proceeding shall be commenced by the Company or any Subsidiary or any
Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof or the Company
or any of its Subsidiaries shall deny in writing that it has any liability or obligation purported to be created under one or more Transaction
Documents.
(b) Notice
of a Triggering Event. Upon the occurrence of a Triggering Event with respect to the Preferred Shares, the Company shall within one
(1) Business Day deliver written notice thereof via electronic mail and overnight courier (with next day delivery specified) (a “Triggering
Event Notice”) to each Holder.
(c) Mandatory
Redemption upon Bankruptcy Triggering Event. Notwithstanding anything to the contrary herein, and notwithstanding any conversion
that is then required or in process, upon any Bankruptcy Triggering Event, the Company shall immediately redeem, in cash, each of the
Preferred Shares then outstanding at a redemption price equal to the greater of (i) the product of (A) the Conversion Amount to be redeemed
multiplied by (B) the Required Premium and (ii) the product of (X) the Conversion Rate (calculated using the lowest Alternate Conversion
Price during the period commencing on the 20th Trading Day immediately preceding such public announcement and ending on the date the
Company makes the entire redemption payment pursuant to this Section 5(c)) with respect to the Conversion Amount in effect immediately
following the date of initial public announcement (or public filing of bankruptcy documents, as applicable) of such Bankruptcy Triggering
Event multiplied by (Y) the product of (1) the Required Premium multiplied by (2) the greatest Closing Sale Price of the Common Stock
on any Trading Day during the period commencing on the date immediately preceding such Bankruptcy Triggering Event and ending on the
date the Company makes the entire payment required to be made under this Section 5(c), without the requirement for any notice or demand
or other action by any Holder or any other person or entity, provided that a Holder may, in its sole discretion, waive such right to
receive payment upon a Bankruptcy Triggering Event, in whole or in part, and any such waiver shall not affect any other rights of such
Holder or any other Holder hereunder, including any other rights in respect of such Bankruptcy Triggering Event or any right to conversion
(or Alternate Conversion), as applicable.
6. Rights
Upon Fundamental Transactions.
(a) Assumption.
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 Certificate of Designations and the other Transaction Documents in accordance with the provisions
of this Section 6(a) pursuant to written agreements in form and substance satisfactory to the Required Holders and approved by the Required
Holders prior to such Fundamental Transaction, including agreements to deliver to each holder of Preferred Shares in exchange for such
Preferred Shares a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to
this Certificate of Designations, including, without limitation, having a stated value and dividend rate equal to the stated value and
dividend rate of the Preferred Shares held by the Holders and having similar ranking to the Preferred Shares, and satisfactory to the
Required Holders and (ii) the Successor Entity (including its Parent Entity) is a publicly traded corporation whose shares of common
stock are quoted on or listed for trading on an Eligible Market. Upon the occurrence of any Fundamental Transaction, the Successor Entity
shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate
of Designations and the other Transaction Documents 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 Certificate of
Designations and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein
and therein. In addition to the foregoing, upon consummation of a Fundamental Transaction, the Successor Entity shall deliver to each
Holder confirmation that there shall be issued upon conversion or redemption of the Preferred Shares at any time after the consummation
of such 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 7 and 15, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption
of the Preferred Shares prior to such Fundamental Transaction, such shares of the publicly traded common stock (or their equivalent)
of the Successor Entity (including its Parent Entity) which each Holder would have been entitled to receive upon the happening of such
Fundamental Transaction had all the Preferred Shares held by each Holder been converted immediately prior to such Fundamental Transaction
(without regard to any limitations on the conversion of the Preferred Shares contained in this Certificate of Designations), as adjusted
in accordance with the provisions of this Certificate of Designations. Notwithstanding the foregoing, such Holder may elect, at its sole
option, by delivery of written notice to the Company to waive this Section 6(a) to permit the Fundamental Transaction without the assumption
of the Preferred Shares. The provisions of this Section 6 shall apply similarly and equally to successive Fundamental Transactions and
shall be applied without regard to any limitations on the conversion or redemption of the Preferred Shares.
(b) Notice
of a Change of Control; Change of Control Election Notice. No sooner than twenty (20) Trading Days nor later than ten (10) Trading
Days prior to the consummation of a Change of Control (the “Change of Control Date”), but not prior to the public
announcement of such Change of Control, the Company shall deliver written notice thereof via electronic mail and overnight courier to
each Holder (a “Change of Control Notice”). At any time during the period beginning after a Holder’s receipt
of a Change of Control Notice or such Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to
such Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later
of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date
of the announcement of such Change of Control, such Holder may require, by delivering written notice thereof (“Change of Control
Election Notice”) to the Company (which Change of Control Election Notice shall indicate the number of Preferred Shares subject
to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice
for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such
election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I)
rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”),
convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Holder,
into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control
Election Price (as determined with the fair market value of the aggregate number of Successor Shares (as defined below) issuable upon
conversion of the Rights to be determined in increments of 10% (or such greater percentage as the applicable Holder may notify the Company
from time to time) of the portion of the Change of Control Election Price attributable to such Successor Shares (the “Successor
Share Value Increment”), with the aggregate number of Successor Shares issuable upon exercise of the Rights with respect to
the first Successor Share Value Increment determined based on 70% of the Closing Bid Price of the Successor Shares on the date the Rights
are issued and on each of the nine (9) subsequent Trading Days, in each case, the aggregate number of additional Successor Shares issuable
upon exercise of the Rights shall be determined based upon a Successor Share Value Increment at 70% of the Closing Bid Price of the Successor
Shares in effect for such corresponding Trading Day (such ten (10) Trading Day period commencing on, and including, the date the Rights
are issued, the “Rights Measuring Period”)), or (II) in cash; provided, that the Company shall not consummate a Change
of Control if the Corporate Event Consideration includes capital stock or other equity interest (the “Successor Shares”)
either in an entity that is not listed on an Eligible Market or an entity in which the daily share volume for the applicable Successor
Shares for each of the twenty (20) Trading Days prior to the date of consummation of such Change of Control is less than the aggregate
number of Successor Shares issuable to all Holders upon conversion in full of the applicable Rights (without regard to any limitations
on conversion therein, assuming the exercise in full of the Rights on the date of issuance of the Rights and assuming the Closing Bid
Price of the Successor Shares for each Trading Day in the Rights Measuring Period is the Closing Bid Price on the Trading Day ended immediately
prior to the time of consummation of the Change of Control). The Company shall give each Holder written notice of each Consideration
Election at least twenty (20) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery
of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the
second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect
to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event
Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if
any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common
Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without
on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section
6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding
anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is
paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted
by such Holder for exchange or payment, as applicable, under this Section 6(b) may be converted, in whole or in part, by such Holder
into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock
or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section
6(a). In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b),
such Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest
rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required
Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s
actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any
redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option
of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such
cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith,
shall satisfy the Company’s payment obligation under such other Transaction Document.
7. Rights
Upon Issuance of Purchase Rights and Other Corporate Events.
(a) Purchase
Rights. In addition to any adjustments pursuant to Section 8 and Section 15 below, 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 all or substantially
all of the record holders of any class of Common Stock (the “Purchase Rights”), then each Holder will be entitled
to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such Holder could have acquired if
such Holder had held the number of shares of Common Stock acquirable upon complete conversion of all the Preferred Shares (without taking
into account any limitations or restrictions on the convertibility of the Preferred Shares and assuming for such purpose that all the
Preferred Shares were converted at the Alternate Conversion Price as of the applicable record date) held by such Holder immediately prior
to 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, issue or sale of such Purchase Rights; provided,
however, to the extent that such Holder’s right to participate in any such Purchase Right would result in such Holder and the other
Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be entitled to participate in such Purchase Right to
such extent of the Maximum Percentage (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 of any such excess) and such Purchase Right to such extent shall be held
in abeyance (and, if such Purchase Right has an expiration date, maturity date or other similar provision, such term shall be extended
by such number of days held in abeyance, if applicable) for the benefit of such Holder until such time or times, if ever, as its right
thereto would not result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times such
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 (and, if such Purchase Right has an expiration date, maturity date or other similar provision,
such term shall be extended by such number of days held in abeyance, if applicable)) to the same extent as if there had been no such
limitation.
(b) Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any 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 ensure
that each Holder will thereafter have the right, at such Holder’s option, to receive upon a conversion of all the Preferred Shares
held by such Holder (i) in addition to the shares of Common Stock receivable upon such conversion, such securities or other assets (the
“Corporate Event Consideration”) to which such Holder would have been entitled with respect to such shares of Common
Stock had such shares of Common Stock been held by such Holder upon the consummation of such Corporate Event (without taking into account
any limitations or restrictions on the convertibility of the Preferred Shares set forth in this Certificate of Designations) or (ii)
in lieu of the shares of Common Stock otherwise receivable upon such conversion, such securities or other assets received by the holders
of shares of Common Stock in connection with the consummation of such Corporate Event in such amounts as such Holder would have been
entitled to receive had the Preferred Shares held by such Holder initially been issued with conversion rights for the form of such consideration
(as opposed to shares of Common Stock) at a conversion rate for such consideration commensurate with the Conversion Rate of an Alternate
Conversion. Provision made pursuant the preceding sentence shall be in a form and substance satisfactory to the Required Holders. The
provisions of this Section 7 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to
any limitations on the conversion or redemption of the Preferred Shares set forth in this Certificate of Designations.
8. Rights
Upon Issuance of Other Securities.
(a) Adjustment
of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Adjustment Measurement Commencement Date the Company
grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 8(a) is deemed to
have granted, issued or sold, any shares of Common Stock (including the granting, issuance or sale of shares of Common Stock owned or
held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted,
issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Conversion
Price in effect immediately prior to such granting, issuance or sale or deemed granting, issuance or sale (such Conversion Price then
in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”),
then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance
Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance
Price under this Section 8(a)), the following shall be applicable:
(i)
Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell)
any Options and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such
Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise
pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and
to have been issued and sold by the Company at the time of the granting, issuance or sale of such Option for such price per share. For
purposes of this Section 8(a)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon
the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any
such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance
or sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon
exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which
one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such
Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise
pursuant to the terms thereof, minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person)
with respect to any one share of Common Stock upon the granting, issuance or sale of such Option, upon exercise of such Option and upon
conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms
thereof minus (3) the value of any other consideration (including, without limitation, consideration consisting of cash, debt
forgiveness, assets or any other property) received or receivable by, or benefit conferred on, the holder of such Option (or any other
Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual issuance of such share
of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms thereof or upon
the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii)
Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell)
any Convertible Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common
Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time
of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes
of this Section 8(a)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the
lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance
or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange
of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible
Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder
of such Convertible Security (or any other Person) with respect to any one share of Common Stock upon the issuance or sale (or the agreement
to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable (including,
without limitation, any consideration consisting of cash, debt forgiveness, assets or other property) by, or benefit conferred on, the
holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Conversion Price
shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities
or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of
any Options for which adjustment of the Conversion Price has been or is to be made pursuant to other provisions of this Section 8(a),
except as contemplated below, no further adjustment of the Conversion Price shall be made by reason of such issuance or sale.
(iii)
Change in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than
proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 8(b) below),
the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been
in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional
consideration or increased or decreased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes
of this Section 8(a)(iii), if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible
Security that was outstanding as of the Exchange Agreement Effective Date) are increased or decreased in the manner described in the
immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise,
conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant
to this Section 8(a) shall be made if such adjustment would result in an increase of the Conversion Price then in effect.
(iv)
Calculation of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection
with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Required Holders, the
“Primary Security”, and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”
and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate
consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price
of such Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of
Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 8(a)(i) or 8(a)(ii)
above and (z) the lowest VWAP of the shares of Common Stock on any Trading Day during the five (5) Trading Day period (the “Adjustment
Period”) immediately following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public
announcement is released prior to the opening of the Principal Market on a Trading Day, such Trading Day shall be the first Trading Day
in such five Trading Day period and if any Preferred Shares are converted, on any given Conversion Date during any such Adjustment Period,
solely with respect to such Preferred Shares converted on such applicable Conversion Date, such applicable Adjustment Period shall be
deemed to have ended on, and included, the Trading Day immediately prior to such Conversion Date). If any shares of Common Stock, Options
or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will
be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible
Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the
fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of
consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the
five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are
issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount
of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity
as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration
other than cash or publicly traded securities will be determined jointly by the Company and the Required Holder. If such parties are
unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”),
the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following
such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Required Holder. The determination
of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall
be borne by the Company.
(v)
Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive
a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase
shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale
of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase (as the case may be).
(b) Adjustment
of Conversion Price upon Subdivision or Combination of Common Stock. Without limiting any provision of Section 7 or Section 15, if
the Company at any time on or after the Exchange Agreement Effective Date subdivides (by any stock split, stock dividend, stock combination,
recapitalization or other similar transaction) one or more classes of its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting any provision
of Section 7 or Section 15, if the Company at any time on or after the Exchange Agreement Effective Date combines (by any stock split,
stock dividend, stock combination, recapitalization or other similar transaction) one or more classes of its outstanding shares of Common
Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately increased.
Any adjustment pursuant to this Section 8(b) shall become effective immediately after the effective date of such subdivision or combination.
If any event requiring an adjustment under this Section 8(b) occurs during the period that a Conversion Price is calculated hereunder,
then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.
(c) Holder’s
Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section 8(c), if the Company
in any manner issues or sells or enters into any agreement to issue or sell, any Common Stock, Options or Convertible Securities (any
such securities, “Variable Price Securities”) after the Adjustment Measurement Commencement Date that are issuable
pursuant to such agreement or convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may
vary with the market price of the shares of Common Stock, including by way of one or more reset(s) to a fixed price, but exclusive of
such formulations reflecting share splits, share combinations, and share dividends (each of the formulations for such variable price
being herein referred to as, the “Variable Price”), the Company shall provide written notice thereof via electronic
mail and overnight courier to each Holder on the date of such agreement and/or the issuance of such shares of Common Stock, Convertible
Securities or Options, as applicable. From and after the date the Company enters into such agreement or issues any such Variable Price
Securities, each Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the
Conversion Price upon conversion of the Preferred Shares by designating in the Conversion Notice delivered upon any conversion of Preferred
Shares that solely for purposes of such conversion such Holder is relying on the Variable Price rather than the Conversion Price then
in effect. A Holder’s election to rely on a Variable Price for a particular conversion of Preferred Shares shall not obligate such
Holder to rely on a Variable Price for any future conversions of Preferred Shares.
(d) [Reserved].
(e) Other
Events. In the event that the Company (or any Subsidiary) shall take any action to which the provisions hereof are not strictly applicable,
or, if applicable, would not operate to protect any Holder from dilution or if any event occurs of the type contemplated by the provisions
of this Section 8 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features), then the Board shall in good faith determine and implement an appropriate
adjustment in the Conversion Price so as to protect the rights of such Holder, provided that no such adjustment pursuant to this Section
8(e) will increase the Conversion Price as otherwise determined pursuant to this Section 8, provided further that if such Holder does
not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the Board and such Holder
shall agree, in good faith, upon an independent investment bank of nationally recognized standing to make such appropriate adjustments,
whose determination shall be final and binding absent manifest error and whose fees and expenses shall be borne by the Company.
(f) Calculations.
All calculations under this Section 8 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 issue or sale of Common Stock.
(g) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time any Preferred Shares
remain outstanding, with the prior written consent of the Required Holder, reduce the then current Conversion Price to any amount and
for any period of time deemed appropriate by the Board.
(h) Adjustments.
If on any of the ninetieth (90th) and one hundred and eightieth (180th), as applicable, calendar day after each
of (x) each date of occurrence of any Stock Combination Event and (y) the Applicable Date (each, an “Adjustment Date”),
the Conversion Price then in effect is greater than the Market Price then in effect (the “Adjustment Price”), on the
Adjustment Date the Conversion Price shall automatically lower to the Adjustment Price.
(i) Exchange
Right. Notwithstanding anything herein to the contrary, if a Holder participates in a Subsequent Placement, each such Holder may,
at the option of such Holder as elected in writing to the Company, satisfy the purchase price of the securities to be sold to such Holder
in such Subsequent Placement, in whole or in part, with Preferred Shares valued at 120% of the Conversion Amount of the Preferred Shares
delivered by such Holder as payment therefor.
9. Redemption
at the Company’s Election. At any time, the Company shall have the right to redeem all, but not less than all, of the Preferred
Shares then outstanding (the “Company Optional Redemption Amount”) on the Company Optional Redemption Date (each as
defined below) (a “Company Optional Redemption”). The Preferred Shares subject to redemption pursuant to this Section
9 shall be redeemed by the Company in cash at a price (the “Company Optional Redemption Price”) equal to 115% of the
greater of (i) the Conversion Amount being redeemed as of the Company Optional Redemption Date and (ii) the product of (1) the Conversion
Rate with respect to the Conversion Amount being redeemed as of the Company Optional Redemption Date multiplied by (2) the greatest Closing
Sale Price of the Common Stock on any Trading Day during the period commencing on the date immediately preceding such Company Optional
Redemption Notice Date and ending on the Trading Day immediately prior to the date the Company makes the entire payment required to be
made under this Section 9. The Company may exercise its right to require redemption under this Section 9 by delivering a written notice
thereof by electronic mail and overnight courier to all, but not less than all, of the Holders (the “Company Optional Redemption
Notice” and the date all of the Holders received such notice is referred to as the “Company Optional Redemption Notice
Date”). The Company may deliver only one Company Optional Redemption Notice hereunder and such Company Optional Redemption
Notice shall be irrevocable. The Company Optional Redemption Notice shall (x) state the date on which the Company Optional Redemption
shall occur (the “Company Optional Redemption Date”) which date shall not be less than ten (10) Trading Days nor more
than twenty (20) Trading Days following the Company Optional Redemption Notice Date, (y) certify that there has been no Equity Conditions
Failure and (z) state the aggregate Conversion Amount of the Preferred Shares which is being redeemed in such Company Optional Redemption
from such Holder and all of the other Holders of the Preferred Shares pursuant to this Section 9 on the Company Optional Redemption Date.
The Company shall deliver the applicable Company Optional Redemption Price to each Holder in cash on the applicable Company Optional
Redemption Date. Notwithstanding anything herein to the contrary, at any time prior to the date the Company Optional Redemption Price
is paid, in full, the Company Optional Redemption Amount may be converted, in whole or in part, by any Holder into shares of Common Stock
pursuant to Section 4. All Conversion Amounts converted by a Holder after the Company Optional Redemption Notice Date shall reduce the
Company Optional Redemption Amount of the Preferred Shares of such Holder required to be redeemed on the Company Optional Redemption
Date. In the event of the Company’s redemption of any of the Preferred Shares under this Section 9, a Holder’s damages would
be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of
the availability of a suitable substitute investment opportunity for such Holder. Accordingly, any redemption premium due under this
Section 9 is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment
opportunity and not as a penalty. For the avoidance of doubt, the Company shall have no right to effect a Company Optional Redemption
if any Triggering Event has occurred and continuing, but any Triggering Event shall have no effect upon any Holder’s right to convert
Preferred Shares in its discretion.
10. Noncircumvention.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation, bylaws or through
any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Certificate of Designations,
and will at all times in good faith carry out all the provisions of this Certificate of Designations and take all action as may be required
to protect the rights of the Holders hereunder. Without limiting the generality of the foregoing or any other provision of this Certificate
of Designations or the other Transaction Documents, the Company (a) shall not increase the par value of any shares of Common Stock receivable
upon the conversion of any Preferred Shares above the Conversion Price then in effect, (b) 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
conversion of Preferred Shares and (c) shall, so long as any Preferred Shares are outstanding, take all action necessary to reserve and
keep available out of its authorized and unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Preferred
Shares, the maximum number of shares of Common Stock as shall from time to time be necessary to effect the conversion of the Preferred
Shares then outstanding (without regard to any limitations on conversion contained herein). Notwithstanding anything herein to the contrary,
if after the sixty (60) calendar day anniversary of the Initial Issuance Date, each Holder is not permitted to convert such Holder’s
Preferred Shares in full for any reason (other than pursuant to restrictions set forth in Section 4(d) hereof), the Company shall use
its best efforts to promptly remedy such failure, including, without limitation, obtaining such consents or approvals as necessary to
effect such conversion into shares of Common Stock.
11. Authorized
Shares.
(a) Reservation.
So long as any Preferred Shares remain outstanding, the Company shall at all times reserve at least (x) if prior to May 31, 2024 (or,
if earlier, the Stockholder Approval Date (the “Initial Reserve Expiration Date”), 900,000 shares of Common Stock
or (y) from and after the Initial Reserve Expiration Date, 200% of the number of shares of Common Stock as shall from time to time be
necessary to effect the conversion, including without limitation, Alternate Conversions, of all of the Preferred Shares then outstanding
at the Alternate Conversion Price then in effect (without regard to any limitations on conversions) (the “Required Reserve Amount”).
The Required Reserve Amount (including, without limitation, each increase in the number of shares so reserved) shall be allocated pro
rata among the Holders based on the number of the Preferred Shares held by each Holder on the Initial Issuance Date 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 Preferred Shares, 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
Preferred Shares shall be allocated to the remaining Holders of Preferred Shares, pro rata based on the number of the Preferred Shares
then held by the Holders. Notwithstanding the foregoing, a Holder may allocate its Authorized Share Allocation to any other of the securities
of the Company held by such Holder (or any of its designees) by delivery of a written notice to the Company.
(b) Insufficient
Authorized Shares. If, notwithstanding Section 11 (a) and not in limitation thereof, at any time while any of the Preferred Shares
remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation
to reserve for issuance upon conversion of the Preferred Shares at least a number of shares of Common Stock equal to 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 the Preferred Shares then outstanding (or deemed outstanding pursuant to Section 11(a) above). 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
(or, if a majority of the voting power then in effect of the capital stock of the Company consents to such increase, in lieu of such
proxy statement, deliver to the stockholders of the Company an information statement that has been filed with (and either approved by
or not subject to comments from) the SEC with respect thereto). 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 to a Holder upon any conversion 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 “Authorized
Failure Shares”), in lieu of delivering such Authorized Failure Shares to such Holder, the Company shall pay cash in exchange
for the redemption of such portion of the Conversion Amount of the Preferred Shares convertible into such Authorized Failure Shares at
a price equal to the sum of (i) the product of (x) such number of Authorized Failure Shares and (y) the greatest Closing Sale Price of
the Common Stock on any Trading Day during the period commencing on the date such Holder delivers the applicable Conversion Notice with
respect to such Authorized Failure Shares to the Company and ending on the date of such issuance and payment under this Section 11(b);
and (ii) to the extent such Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by such Holder of Authorized Failure Shares, any brokerage commissions and other out-of-pocket expenses, if any, of such Holder
incurred in connection therewith.
12. Voting
Rights. The holders of the Preferred Shares shall have no voting power and no right to vote on any matter at any time, either as
a separate series or class or together with any other series or class of share of capital stock, and shall not be entitled to call a
meeting of such holders for any purpose nor shall they be entitled to participate in any meeting of the holders of Common Stock, except
as provided in this Section 12 and Section 15 or as otherwise required by the DGCL. To the extent that under the DGCL the vote of the
holders of the Preferred Shares, voting separately as a class or series, as applicable, is required to authorize a given action of the
Company, the affirmative vote or consent of the Required Holders of the Preferred Shares, voting together in the aggregate and not in
separate series unless required under the DGCL, represented at a duly held meeting at which a quorum is presented or by written consent
of the Required Holders (except as otherwise may be required under the DGCL), voting together in the aggregate and not in separate series
unless required under the DGCL, shall constitute the approval of such action by both the class or the series, as applicable. Holders
of the Preferred Shares shall be entitled to written notice of all stockholder meetings or written consents (and copies of proxy materials
and other information sent to stockholders) with respect to which they would be entitled to vote, which notice would be provided pursuant
to the Company’s bylaws (the “Bylaws”) and the DGCL.
13. Covenants.
(a) Restriction
on Redemption and Cash Dividends. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or
indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on any of its capital stock (other than as required
by this Certificate of Designations).
(b) Restriction
on Transfer of Assets. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the Company
or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions, other than (i) sales,
leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or rights by the Company and its Subsidiaries
in the ordinary course of business consistent with its past practice and (ii) sales of inventory and product in the ordinary course of
business.
(c) Change
in Nature of Business. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
engage in any material line of business substantially different from those lines of business conducted by or publicly contemplated to
be conducted by the Company and each of its Subsidiaries on the Exchange Agreement Effective Date or any business substantially related
or incidental thereto. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, modify
its or their corporate structure or purpose.
(d) Preservation
of Existence, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence,
rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing
in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes
such qualification necessary.
(e) Maintenance
of Properties, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear
and tear excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which
it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.
(f) Maintenance
of Intellectual Property. The Company will, and will cause each of its Subsidiaries to, take all action necessary or advisable to
maintain all of the Intellectual Property Rights of the Company and/or any of its Subsidiaries that are necessary or material to the
conduct of its business in full force and effect.
(g) Maintenance
of Insurance. The Company shall maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption
insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering
such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance
with sound business practice by companies in similar businesses similarly situated.
(h) Transactions
with Affiliates. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into, renew, extend or be a party to,
any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of
property or assets of any kind or the rendering of services of any kind) with any affiliate, except transactions in the ordinary course
of business in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business,
for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s
length transaction with a Person that is not an affiliate thereof.
(i) Restricted
Issuances. The Company shall not, directly or indirectly, without the prior written consent of the Required Holders, (i) issue any
Preferred Shares (other than as contemplated by the Exchange Agreement and this Certificate of Designations), or (ii) issue any other
securities that would cause a breach or default under this Certificate of Designations.
(j) Stay,
Extension and Usury Laws. To the extent that it may lawfully do so, the Company (A) agrees that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever
enacted or in force) that may affect the covenants or the performance of this Certificate of Designations; and (B) expressly waives all
benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution
of any power granted to the Holders by this Certificate of Designations, but will suffer and permit the execution of every such power
as though no such law has been enacted.
(k) Taxes.
The Company and its Subsidiaries shall pay when due all taxes, fees or other charges of any nature whatsoever (together with any related
interest or penalties) now or hereafter imposed or assessed against the Company and its Subsidiaries or their respective assets or upon
their ownership, possession, use, operation or disposition thereof or upon their rents, receipts or earnings arising therefrom (except
where the failure to pay would not, individually or in the aggregate, have a material effect on the Company or any of its Subsidiaries).
The Company and its Subsidiaries shall file on or before the due date therefor all personal property tax returns (except where the failure
to file would not, individually or in the aggregate, have a material effect on the Company or any of its Subsidiaries). Notwithstanding
the foregoing, the Company and its Subsidiaries may contest, in good faith and by appropriate proceedings, taxes for which they maintain
adequate reserves therefor in accordance with GAAP.
(l) PCAOB
Registered Auditor. At all times any Preferred Shares remain outstanding, the Company shall have engaged an independent auditor to
audit its financial statements that is registered with (and in compliance with the rules and regulations of) the Public Company Accounting
Oversight Board.
(m)
Independent Investigation. At the request of any Holder either (x) at any time when a Triggering Event has occurred and is continuing,
(y) upon the occurrence of an event that with the passage of time or giving of notice would constitute a Triggering Event or (z) at any
time such Holder reasonably believes a Triggering Event may have occurred or be continuing, the Company shall hire an independent, reputable
investment bank selected by the Company and approved by such Holder to investigate as to whether any breach of this Certificate of Designations
has occurred (the “Independent Investigator”). If the Independent Investigator determines that such breach of this
Certificate of Designations has occurred, the Independent Investigator shall notify the Company of such breach and the Company shall
deliver written notice to each Holder of such breach. In connection with such investigation, the Independent Investigator may, during
normal business hours, inspect all contracts, books, records, personnel, offices and other facilities and properties of the Company and
its Subsidiaries and, to the extent available to the Company after the Company uses reasonable efforts to obtain them, the records of
its legal advisors and accountants (including the accountants’ work papers) and any books of account, records, reports and other
papers not contractually required of the Company to be confidential or secret, or subject to attorney-client or other evidentiary privilege,
and the Independent Investigator may make such copies and inspections thereof as the Independent Investigator may reasonably request.
The Company shall furnish the Independent Investigator with such financial and operating data and other information with respect to the
business and properties of the Company as the Independent Investigator may reasonably request. The Company shall permit the Independent
Investigator to discuss the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect
thereto to, the Company’s officers, directors, key employees and independent public accountants or any of them (and by this provision
the Company authorizes said accountants to discuss with such Independent Investigator the finances and affairs of the Company and any
Subsidiaries), all at such reasonable times, upon reasonable notice, and as often as may be reasonably requested.
14. Liquidation,
Dissolution, Winding-Up. In the event of a Liquidation Event, the Holders shall be entitled to receive in cash out of the assets
of the Company, whether from capital or from earnings available for distribution to its stockholders (the “Liquidation Funds”),
before any amount shall be paid to the holders of any of shares of Junior Stock, after any Senior Preferred Stock then outstanding, but
pari passu with any Parity Stock then outstanding, an amount per Preferred Share equal to the greater of (A) 125% of the Conversion Amount
of such Preferred Share on the date of such payment and (B) the amount per share such Holder would receive if such Holder converted such
Preferred Share into Common Stock (at the Alternate Conversion Price then in effect) immediately prior to the date of such payment, provided
that if the Liquidation Funds are insufficient to pay the full amount due to the Holders and holders of shares of Parity Stock, then
each Holder and each holder of Parity Stock shall receive a percentage of the Liquidation Funds equal to the full amount of Liquidation
Funds payable to such Holder and such holder of Parity Stock as a liquidation preference, in accordance with their respective certificate
of designations (or equivalent), as a percentage of the full amount of Liquidation Funds payable to all holders of Preferred Shares and
all holders of shares of Parity Stock. To the extent necessary, the Company shall cause such actions to be taken by each of its Subsidiaries
so as to enable, to the maximum extent permitted by law, the proceeds of a Liquidation Event to be distributed to the Holders in accordance
with this Section 14. All the preferential amounts to be paid to the Holders under this Section 14 shall be paid or set apart for payment
before the payment or setting apart for payment of any amount for, or the distribution of any Liquidation Funds of the Company to the
holders of shares of Junior Stock in connection with a Liquidation Event as to which this Section 14 applies.
15. Distribution
of Assets. In addition to any adjustments pursuant to Section 7 and Section 8, if the Company shall declare or make any dividend
or other distributions of its assets (or rights to acquire its assets) to any or all 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 or options by way
of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the “Distributions”),
then each Holder, as holders of Preferred Shares, will be entitled to such Distributions as if such Holder had held the number of shares
of Common Stock acquirable upon complete conversion of the Preferred Shares (without taking into account any limitations or restrictions
on the convertibility of the Preferred Shares and assuming for such purpose that the Preferred Share was converted at the Alternate Conversion
Price as of the applicable record date) immediately prior to 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 Common Stock are to be determined for such Distributions (provided,
however, that to the extent that such Holder’s right to participate in any such Distribution would result in such Holder
and the other Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be entitled to participate in such Distribution
to such extent of the Maximum Percentage (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 of any such excess) and the portion of such Distribution shall be held
in abeyance for the benefit of such Holder until such time or times as its right thereto would not result in such Holder and the other
Attribution Parties exceeding the Maximum Percentage, at which time or times, if any, such 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).
16. Vote
to Change the Terms of or Issue Preferred Shares. In addition to any other rights provided by law, except where the vote or written
consent of the holders of a greater number of shares is required by law or by another provision of the Certificate of Incorporation,
without first obtaining the affirmative vote at a meeting duly called for such purpose or the written consent without a meeting of the
Required Holders, voting together as a single class, the Company shall not: (a) amend or repeal any provision of, or add any provision
to, its certificate of Incorporation or bylaws, or file any certificate of designations or articles of amendment of any series of shares
of preferred stock, if such action would adversely alter or change in any respect the preferences, rights, privileges or powers, or restrictions
provided for the benefit of the Preferred Shares hereunder, regardless of whether any such action shall be by means of amendment to the
Certificate of Incorporation or by merger, consolidation or otherwise; (b) increase or decrease (other than by conversion) the authorized
number of shares of Series B-2 Convertible Preferred Stock; (c) without limiting any provision of Section 2, create or authorize (by
reclassification or otherwise) any new class or series of Senior Preferred Stock or Parity Stock, other than any Specified Senior Preferred
Stock to be issued pursuant to the transactions contemplated by the Merger Agreement, any Parity Stock to be issued pursuant to the transactions
contemplated by the Merger Agreement and any Parity Stock to be issued pursuant to the transactions contemplated by the Purchase Agreement;
(d) purchase, repurchase or redeem any shares of Junior Stock (other than pursuant to the terms of the Company’s equity incentive
plans and options and other equity awards granted under such plans (that have in good faith been approved by the Board)); (e) without
limiting any provision of Section 2, pay dividends or make any other distribution on any shares of any Junior Stock; (f) issue any Preferred
Shares other than as contemplated hereby or pursuant to the Exchange Agreement; or (g) without limiting any provision of Section 10,
whether or not prohibited by the terms of the Preferred Shares, circumvent a right of the Preferred Shares hereunder.
17. Transfer
of Preferred Shares. A Holder may offer, sell or transfer some or all of its Preferred Shares without the consent of the Company
subject only to the provisions of Section 6 of the Exchange Agreement.
18. Reissuance
of Preferred Share Certificates and Book Entries.
(a) Transfer.
If any Preferred Shares are to be transferred, the applicable Holder shall surrender the applicable Preferred Share Certificate to the
Company (or, if the Preferred Shares are held in Book-Entry form, a written instruction letter to the Company), whereupon the Company
will forthwith issue and deliver upon the order of such Holder a new Preferred Share Certificate (in accordance with Section 18(d)) (or
evidence of the transfer of such Book-Entry), registered as such Holder may request, representing the outstanding number of Preferred
Shares being transferred by such Holder and, if less than the entire outstanding number of Preferred Shares is being transferred, a new
Preferred Share Certificate (in accordance with Section 18(d)) to such Holder representing the outstanding number of Preferred Shares
not being transferred (or evidence of such remaining Preferred Shares in a Book-Entry for such Holder). Such Holder and any assignee,
by acceptance of the Preferred Share Certificate or evidence of Book-Entry issuance, as applicable, acknowledge and agree that, by reason
of the provisions of Section 4(c)(i) following conversion or redemption of any of the Preferred Shares, the outstanding number of Preferred
Shares represented by the Preferred Shares may be less than the number of Preferred Shares stated on the face of the Preferred Shares.
(b) Lost,
Stolen or Mutilated Preferred Share Certificate. Upon receipt by the Company of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of a Preferred Share Certificate (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 applicable Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation
of such Preferred Share Certificate, the Company shall execute and deliver to such Holder a new Preferred Share Certificate (in accordance
with Section 18(d)) representing the applicable outstanding number of Preferred Shares.
(c) Preferred
Share Certificate and Book-Entries Exchangeable for Different Denominations and Forms. Each Preferred Share Certificate is exchangeable,
upon the surrender hereof by the applicable Holder at the principal office of the Company, for a new Preferred Share Certificate or Preferred
Share Certificate(s) or new Book-Entry (in accordance with Section 18(d)) representing, in the aggregate, the outstanding number of the
Preferred Shares in the original Preferred Share Certificate, and each such new Preferred Share Certificate and/or new Book-Entry, as
applicable, will represent such portion of such outstanding number of Preferred Shares from the original Preferred Share Certificate
as is designated in writing by such Holder at the time of such surrender. Each Book-Entry may be exchanged into one or more new Preferred
Share Certificates or split by the applicable Holder by delivery of a written notice to the Company into two or more new Book-Entries
(in accordance with Section 18(d)) representing, in the aggregate, the outstanding number of the Preferred Shares in the original Book-Entry,
and each such new Book-Entry and/or new Preferred Share Certificate, as applicable, will represent such portion of such outstanding number
of Preferred Shares from the original Book-Entry as is designated in writing by such Holder at the time of such surrender.
(d) Issuance
of New Preferred Share Certificate or Book-Entry. Whenever the Company is required to issue a new Preferred Share Certificate or
a new Book-Entry pursuant to the terms of this Certificate of Designations, such new Preferred Share Certificate or new Book-Entry (i)
shall represent, as indicated on the face of such Preferred Share Certificate or in such Book-Entry, as applicable, the number of Preferred
Shares remaining outstanding (or in the case of a new Preferred Share Certificate or new Book-Entry being issued pursuant to Section
18(a) or Section 18(c), the number of Preferred Shares designated by such Holder) which, when added to the number of Preferred Shares
represented by the other new Preferred Share Certificates or other new Book-Entry, as applicable, issued in connection with such issuance,
does not exceed the number of Preferred Shares remaining outstanding under the original Preferred Share Certificate or original Book-Entry,
as applicable, immediately prior to such issuance of new Preferred Share Certificate or new Book-Entry, as applicable, and (ii) shall
have an issuance date, as indicated on the face of such new Preferred Share Certificate or in such new Book-Entry, as applicable, which
is the same as the issuance date of the original Preferred Share Certificate or in such original Book-Entry, as applicable.
19. Remedies,
Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Certificate of Designations shall
be cumulative and in addition to all other remedies available under this Certificate of Designations and any of the other Transaction
Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall
limit any Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of
this Certificate of Designations. No failure on the part of a Holder to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by such Holder of any right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power or remedy. In addition, the exercise of any right or
remedy of a Holder at law or equity or under this Certificate of Designations or any of the documents shall not be deemed to be an election
of such Holder’s rights or remedies under such documents or at law or equity. The Company covenants to each 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, conversion and the like (and the computation thereof) shall be the amounts to be received by a Holder and shall
not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). No failure
on the part of a Holder to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise by such Holder of any right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. In addition, the exercise of any right or remedy of any Holder at law or equity
or under Preferred Shares or any of the documents shall not be deemed to be an election of such Holder’s rights or remedies under
such documents or at law or equity. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to the Holders 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, each Holder 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 a Holder that is requested by such Holder to enable such Holder to confirm the Company’s compliance with the
terms and conditions of this Certificate of Designations.
20. Payment
of Collection, Enforcement and Other Costs. If (a) any Preferred Shares are placed in the hands of an attorney for collection or
enforcement or is collected or enforced through any legal proceeding or a Holder otherwise takes action to collect amounts due under
this Certificate of Designations with respect to the Preferred Shares or to enforce the provisions of this Certificate of Designations
or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings affecting Company creditors’
rights and involving a claim under this Certificate of Designations, then the Company shall pay the costs incurred by such 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. The Company expressly acknowledges and agrees that no amounts due under
this Certificate of Designations with respect to any Preferred Shares shall be affected, or limited, by the fact that the purchase price
paid for each Preferred Share was less than the original Stated Value thereof.
21. Construction;
Headings. This Certificate of Designations shall be deemed to be jointly drafted by the Company and the Holders and shall not be
construed against any such Person as the drafter hereof. The headings of this Certificate of Designations are for convenience of reference
and shall not form part of, or affect the interpretation of, this Certificate of Designations. Unless the context clearly indicates otherwise,
each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,”
“includes,” “include” and words of like import shall be construed broadly as if followed by the words “without
limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this
entire Certificate of Designations instead of just the provision in which they are found. Unless expressly indicated otherwise, all section
references are to sections of this Certificate of Designations. Terms used in this Certificate of Designations and not otherwise defined
herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Initial Issuance Date in
such other Transaction Documents unless otherwise consented to in writing by the Required Holders.
22. Failure
or Indulgence Not Waiver. No failure or delay on the part of a Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized
representative of the waiving party. This Certificate of Designations shall be deemed to be jointly drafted by the Company and all Holders
and shall not be construed against any Person as the drafter hereof. Notwithstanding the foregoing, nothing contained in this Section
22 shall permit any waiver of any provision of Section 4(d).
23. Dispute
Resolution.
(a) Submission
to Dispute Resolution.
(i)
In the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, an Alternate Conversion Price,
a VWAP or a fair market value or the arithmetic calculation of a Conversion Rate, or the applicable redemption price (as the case may
be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the applicable Holder
(as the case may be) shall submit the dispute to the other party via electronic mail (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 such Holder at any time after such Holder learned
of the circumstances giving rise to such dispute. If such Holder and the Company are unable to promptly resolve such dispute relating
to such Closing Bid Price, such Closing Sale Price, such Conversion Price, such Alternate Conversion Price, such VWAP or such fair market
value, or the arithmetic calculation of such Conversion Rate or such applicable redemption price (as the case may be), at any time after
the second (2nd) Business Day following such initial notice by the Company or such Holder (as the case may be) of such dispute
to the Company or such Holder (as the case may be), then such Holder may, at its sole option, select an independent, reputable investment
bank to resolve such dispute.
(ii)
Such 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 23 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 such
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 such 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 such
Holder or otherwise requested by such investment bank, neither the Company nor such 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 such Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and such
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 23 constitutes an agreement to arbitrate between the Company and
each Holder (and constitutes an arbitration agreement) under the rules then in effect under Delaware Rapid Arbitration Act, as amended,
(ii) the terms of this Certificate of Designations and each other applicable Transaction Document shall serve as the basis for the selected
investment bank’s resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized)
to make all findings, determinations and the like that such investment bank determines are required to be made by such investment bank
in connection with its resolution of such dispute and in resolving such dispute such investment bank shall apply such findings, determinations
and the like to the terms of this Certificate of Designations and any other applicable Transaction Documents, (iii) the applicable Holder
(and only such Holder with respect to disputes solely relating to such Holder), in its sole discretion, shall have the right to submit
any dispute described in this Section 23 to any state or federal court sitting in Wilmington Delaware, in lieu of utilizing the procedures
set forth in this Section 23 and (iv) nothing in this Section 23 shall limit such Holder from obtaining any injunctive relief or other
equitable remedies (including, without limitation, with respect to any matters described in this Section 23).
24. Notices;
Currency; Payments.
(a) Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Certificate of Designations
must be in writing and will be deemed to have been delivered on the earliest of: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by electronic mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending
party and the sending party does not receive an automatically generated message from the recipient’s email server that such e-mail
could not be delivered to such recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day
delivery specified, in each case, properly addressed to the party to receive the same. The mailing address and e-mail address for any
such communications to the Company shall be: Aditxt, Inc., 737 N. Fifth Street, Suite 200, Richmond, VA 23219, Attention: Amro Albanna,
e-mail address: aalbanna@aditxt.com, or such other mailing address and/or e-mail address as the Company has specified by written notice
given to each of the Holders in accordance with this Section 24(a) not later than five (5) days prior to the effectiveness of such change.
The mailing address and e-mail address for any such communications to any Holder shall be as set forth on such Holder’s respective
signature page to the Exchange Agreement, or such other mailing address and/or e-mail address as such Holder has specified by written
notice given to the Company in accordance with this Section 24(a) not later than five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C) provided by an overnight
courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
(b) The
Company shall provide each Holder with prompt written notice of all actions taken pursuant to this Certificate of Designations, including
in reasonable detail a description of such action and the reason therefore. Without limiting the generality of the foregoing, the Company
shall give written notice to each Holder (i) immediately upon any adjustment of the Conversion Price, setting forth in reasonable detail,
and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on which the Company closes
its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, or (B) 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 such Holder.
(c) Currency.
All dollar amounts referred to in this Certificate of Designations are in United States Dollars (“U.S. Dollars”),
and all amounts owing under this Certificate of Designations shall be paid in U.S. Dollars. All amounts denominated in other currencies
(if any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange
Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Certificate of Designations,
the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed
that where an amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such
period of time).
(d) Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Certificate of Designations, unless otherwise
expressly set forth herein, such payment shall be made in lawful money of the United States of America by wire transfer of immediately
available funds pursuant to wire transfer instructions that Holder shall provide to the Company in writing from time to time. Whenever
any amount expressed to be due by the terms of this Certificate of Designations is due on any day which is not a Business Day, the same
shall instead be due on the next succeeding day which is a Business Day.
25. Waiver
of Notice. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other
demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Certificate of Designations
and the Exchange Agreement.
26. Governing
Law. This Certificate of Designations shall be construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Certificate of Designations shall be governed by, the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other
jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Except as otherwise
required by Section 23 above, the Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in Wilmington, Delaware, 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 to limit in any way any right to
serve process in any manner permitted by law. Nothing contained herein (i) shall be deemed or operate to preclude any Holder from bringing
suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to such
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 such Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision of Section 23 above. 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 CERTIFICATE OF DESIGNATIONS OR ANY TRANSACTION CONTEMPLATED HEREBY.
27. Judgment
Currency.
(a) If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert
into any other currency (such other currency being hereinafter in this Section 27 referred to as the “Judgment Currency”)
an amount due in U.S. Dollars under this Certificate of Designations, the conversion shall be made at the Exchange Rate prevailing on
the Trading Day immediately preceding:
(i)
the date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or
(ii)
the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of
which such conversion is made pursuant to this Section 27(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).
(b) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 27(a)(ii) above, there is a change in the Exchange
Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay
such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(c) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Certificate of Designations.
28. TAXES.
(a) All
payments made by the Company hereunder or under any other Transaction Document shall be made in accordance with the terms of the respective
Transaction Document and shall be made without set-off, counterclaim, withholding, deduction or other defense. Without limiting the foregoing,
all such payments shall be made free and clear of and without deduction or withholding for any present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto, excluding (i) taxes imposed on the net income of a Holder
by the jurisdiction in which such Holder is organized or where it has its principal lending office, (ii) with respect to any payments
made by the Company hereunder, taxes (including, but not limited to, backup withholding) to the extent such taxes are imposed due to
the failure of the applicable recipient of such payment to provide the Company with whichever (if any) is applicable of valid and properly
completed and executed IRS Forms W-9, W-8BEN, W-8BEN-E, W-8ECI, and/or W-8IMY, when requested in writing by the Company, and (iii) with
respect to any payments made by the Company, taxes to the extent such taxes are imposed due to the failure of the applicable recipient
of such payment to comply with FATCA (all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and liabilities,
collectively or individually, “Taxes”). If the Company shall be required to deduct or to withhold any Taxes from or
in respect of any amount payable hereunder or under any other Transaction Document:
(i)
the amount so payable shall be increased to the extent necessary so that after making all required deductions and withholdings (including
Taxes on amounts payable to a Holder pursuant to this sentence) such Holder receives an amount equal to the sum it would have received
had no such deduction or withholding been made,
(ii)
the Company shall make such deduction or withholding,
(iii)
the Company shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law,
and
(iv)
as promptly as possible thereafter, the Company shall send such Holder an official receipt (or, if an official receipt is not available,
such other documentation as shall be satisfactory to such Holder, as the case may be) showing payment. In addition, the Company agrees
to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery, registration or enforcement of, or otherwise with respect to, this Preferred
Shares or any other Transaction Document (collectively, “Other Taxes”).
(b) The
Company hereby indemnifies and agrees to hold each Holder and each of their affiliates and their respective officers, directors, employees,
agents and advisors (each, an “Indemnified Party”) each Indemnified Party harmless from and against Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 28)
paid by any Indemnified Party as a result of any payment made hereunder or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Preferred Shares or any other Transaction Document, and any liability (including penalties, interest
and expenses for nonpayment, late payment or otherwise) arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be paid within thirty (30) days from the date on which such Holder
makes written demand therefor, which demand shall identify the nature and amount of such Taxes or Other Taxes.
(c) If
the Company fails to perform any of its obligations under this Section 28, the Company shall indemnify such Holder for any taxes, interest
or penalties that may become payable as a result of any such failure. The obligations of the Company under this Section 28 shall survive
the repayment and/or conversion, as applicable, in full of the Preferred Shares and all other amounts payable with respect thereto.
(d) If
any Indemnified Party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified pursuant to this Section 28 (including by the payment of additional amounts pursuant to this Section 28), it
shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section
28 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including taxes) of such Indemnified Party
and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying
party, upon the request of such Indemnified Party, shall repay to such Indemnified Party the amount paid over pursuant to this paragraph
(d) (plus any penalties, interest, or other charges imposed by the relevant Governmental Authority) in the event that such Indemnified
Party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (d),
in no event will the Indemnified Party be required to pay any amount to an indemnifying party pursuant to this paragraph (d) the payment
of which would place the Indemnified Party in a less favorable net after-Tax position than the Indemnified Party would have been in if
the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never been paid. This paragraph (d) shall not be construed to require any
Indemnified Party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the
indemnifying party or any other Person.
29. Severability.
If any provision of this Certificate of Designations 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 Certificate of Designations so long as this Certificate of Designations 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).
30. Maximum
Payments. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder
exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company
to the applicable Holder and thus refunded to the Company.
31. Stockholder
Matters; Amendment; Transactions Related to the Merger Agreement, Evofem Exchange Agreement and Purchase Agreement.
(a) Stockholder
Matters. Any stockholder action, approval or consent required, desired or otherwise sought by the Company pursuant to the DGCL, the
Certificate of Incorporation, this Certificate of Designations or otherwise with respect to the issuance of Preferred Shares may be effected
by written consent of the Company’s stockholders or at a duly called meeting of the Company’s stockholders, all in accordance
with the applicable rules and regulations of the DGCL. This provision is intended to comply with the applicable sections of the DGCL
permitting stockholder action, approval and consent affected by written consent in lieu of a meeting.
(b) Amendment.
Except for Section 4(d), which may not be amended or waived hereunder, this Certificate of Designations or any provision hereof may be
amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance
with the DGCL, of the Required Holders, voting separate as a single class, and with such other stockholder approval, if any, as may then
be required pursuant to the DGCL and the Certificate of Incorporation. Except (a) to the extent
otherwise expressly provided in this Certificate of Designations or the Certificate of Incorporation with respect to voting or approval
rights of a particular class or series of capital stock or (b) to the extent otherwise provided pursuant to the DGCL, the holders
of each outstanding class or series of shares of the Company shall not be entitled to vote as a separate voting group on any amendment
to the terms of this Certificate of Designations with respect to which such class or series would otherwise be entitled under the DGCL to
vote as a separate voting group
(c) Transactions
Related to the Merger Agreement and Purchase Agreement. Notwithstanding the foregoing, nothing herein shall restrict or otherwise
prohibit any term or condition of the Merger Agreement, the Purchase Agreement, the Evofem Exchange Agreement or the transactions contemplated
thereby, including without limitation, the filing of one or more certificates of designations with any secretary of state with respect
thereto and the issuance of the Specified Senior Preferred Stock and/or Parity Stock, as applicable, in accordance therewith. For the
avoidance of doubt, each Holder by accepting the Preferred Shares hereby consents to the transactions contemplated by the Merger Agreement,
the Evofem Exchange Agreement, and the Purchase Agreement.
32. Certain
Defined Terms. For purposes of this Certificate of Designations, 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) “Additional
Amount” means, as of the applicable date of determination, with respect to each Preferred Share, all declared and unpaid Dividends
on such Preferred Share.
(d) “Adjustment
Measurement Commencement Date” means January 1, 2024.
(e) “Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or
sale (or deemed issuance or sale in accordance with Section 8(a)) of shares of Common Stock (other than rights of the type described
in Section 7(a) hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with
respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).
(f)
“Affiliate” or “Affiliated” 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.
(g) “Alternate
Conversion Floor Amount” means an amount equal to the product obtained by multiplying (A) the higher of (I) the highest price
that the Common Stock trades at on the Trading Day immediately preceding the relevant Alternate Conversion Date and (II) the applicable
Alternate Conversion Price and (B) the difference obtained by subtracting (I) the number of shares of Common Stock delivered (or to be
delivered) to such Holder on the applicable Share Delivery Deadline with respect to such Alternate Conversion from (II) the quotient
obtained by dividing (x) the applicable Conversion Amount that such Holder has elected to be the subject of the applicable Alternate
Conversion, by (y) the applicable Alternate Conversion Price without giving effect to clause (x) of such definition.
(h) “Alternate
Conversion Price” means, with respect to any Alternate Conversion that price which shall be the lowest of (i) the applicable
Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion, and (ii) the greater of (x) the
Floor Price and (y) 80% of the lowest VWAP of the Common Stock during the five (5) consecutive Trading Day period ending and including
the Trading Day immediately preceding the delivery or deemed delivery of the applicable Conversion Notice (such period, the “Alternate
Conversion Measuring Period”). All such determinations to be appropriately adjusted for any stock dividend, stock split, stock
combination, reclassification or similar transaction that proportionately decreases or increases the Common Stock during such Alternate
Conversion Measuring Period.
(i) “Applicable
Date” means the later of (x) the Stockholder Approval Date and (y) the earlier to occur of (A) the effective date of a registration
statement registering the resale by the Holders of all of the shares of Common Stock issuable upon conversion of the Preferred Shares
then outstanding and (B) the date the Preferred Shares are eligible to be resold by the Holders (assuming such Holders are not then affiliates
of the Company) without restriction under Rule 144 of the 1933 Act (in each case, without regard to any limitations on exercise herein).
(j) “Approved
Stock Plan” means any employee benefit plan or agreement which has been approved by the Board prior to or subsequent to the
Exchange Agreement Effective Date pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued
to any employee, officer, consultant or director for services provided to the Company in their capacity as such.
(k) “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 Initial Issuance Date, directly or indirectly managed or advised
by a Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of such Holder
or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with such 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
such 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 such Holder and all other Attribution Parties to the Maximum Percentage.
(l) “Bloomberg”
means Bloomberg, L.P.
(m) “Book-Entry”
means each entry on the Register evidencing one or more Preferred Shares held by a Holder in lieu of a Preferred Share Certificate issuable
hereunder.
(n) “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.
(o) “Change
of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect, wholly-owned
Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification of the shares of
Common Stock in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization or reclassification
continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly,
are, in all material respects, the holders of the voting power of the surviving entity (or entities with the authority or voting power to
elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such
reorganization, recapitalization or reclassification, or (iii) pursuant to a migratory merger effected solely for the purpose of changing
the jurisdiction of incorporation of the Company or any of its Subsidiaries and (iv) any merger or acquisition of any business by the
Company, directly or indirectly, in which either (x) the holders of the Company’s voting power to elect the board of directors
of the Company immediately prior to such merger or acquisition continue after such merger or acquisition to have the voting power to
elect a majority of the board of directors of the Company or (y) the Company shall not, 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 (1) at least 10% of the aggregate ordinary voting power represented by
issued and outstanding Common Stock, (2) at least 10% 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 Certificate of Designations calculated as if any shares of Common
Stock held by all such Subject Entities were not outstanding, or (3) 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 elect a majority of the directors of the Board of Directors of the Company (and, in either case, a majority of the directors on the
board of directors of the Company immediately prior to such merger or acquisition continue after such merger or acquisition to be a majority
of the directors on the board of directors of the Company). Notwithstanding the foregoing, the transactions contemplated by the Merger
Agreement, the Evofem Exchange Agreement and the Purchase Agreement shall not be deemed a Change of Control.
(p) “Change
of Control Election Price” means, with respect to any given Change of Control, such price equal to the greatest of (i) the
product of (A) the Required Premium multiplied by (B) the Conversion Amount of the Preferred Shares subject to the applicable election,
as applicable, (ii) the product of (A) the Conversion Amount of the Preferred Shares being redeemed or exchanged, as applicable, multiplied
by (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning
on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the public
announcement of such Change of Control and ending on the date such Holder delivers the Change of Control Election Notice by (II) the
Alternate Conversion Price then in effect, and (iii) the product of (A) the Conversion Amount of the Preferred Shares being redeemed
multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash value of any non-cash consideration per
share of Common Stock to be paid to such holders of the shares of Common Stock upon consummation of such Change of Control (any such
non-cash consideration constituting publicly-traded securities shall be valued at the highest of the Closing Sale Price of such securities
as of the Trading Day immediately prior to the consummation of such Change of Control, the Closing Sale Price of such securities on the
Trading Day immediately following the public announcement of such proposed Change of Control and the Closing Sale Price of such securities
on the Trading Day immediately prior to the public announcement of such proposed Change of Control) divided by (II) the Conversion Price
then in effect.
(q) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market
begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may
be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by
Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing
bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security
is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively,
of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no
closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the
ask prices, respectively, of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency
succeeding to its functions of reporting prices). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security
on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security
on such date shall be the fair market value as mutually determined by the Company and the Required Holder. If the Company and the Required
Holders 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 23. All such determinations shall be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations
or other similar transactions during such period.
(r)
“Code” means the Internal Revenue Code of 1986, as amended.
(s)
“Common Stock” means (i) the Company’s shares of common stock, $0.001 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.
(t) “Contingent
Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect
to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or
discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in
whole or in part) against loss with respect thereto.
(u) “Conversion
Floor Price Condition” means that the relevant Alternate Conversion Price is being determined based on clause (x) of such definitions.
(v) “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.
(w) “Eligible
Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the
Nasdaq Capital Market.
(x) “Evofem
Exchange Agreement” means that certain Exchange Agreement to be entered into on or about the date hereof, by and between the
Company and the holders of certain preferred stock of Evofem Biosciences, Inc., as such shall be amended, supplemented and/or restated
on or after the date hereof.
(y) “Exchange
Agreement” means that certain Exchange Agreement, dated as of December 28, 2023, by and among the Company and Walleye Opportunities
Master Fund Ltd, as such shall be amended, supplemented and/or restated on or after the date hereof.
(z) “Exchange
Agreement Effective Date” means December 28, 2023.
(aa) “Excluded
Securities” means (i) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers or
employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan (as defined
above), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options)
after the Exchange Agreement Effective Date pursuant to this clause (i) do not either (x) with respect to any issuances during the period
commencing on the Initial Issuance Date through December 31, 2023 and/or (y) with respect to any issuances in any given calendar year
thereafter, as applicable, exceed 10% of the Common Stock issued and outstanding as of the first calendar day in such period and/or calendar
year, as applicable, and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the
number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any
manner that adversely affects any of the Holders; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities
(other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above)
issued prior to the Exchange Agreement Effective Date, provided that the conversion price of any such Convertible Securities (other than
standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered,
none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that
are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions
of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that
are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Holders; (iii) the
shares of Common Stock issuable upon conversion of the Preferred Shares or otherwise pursuant to the terms of this Certificate of Designations;
provided, that the terms of this Certificate of Designations are not amended, modified or changed on or after the Exchange Agreement
Effective Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Exchange Agreement Effective Date)
and (iv) any securities to be issued pursuant to the transactions contemplated by the Merger Agreement or the Purchase Agreement.
(bb) “FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Preferred Shares (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted
pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the
Code.
(cc) “Floor
Price” means $0.9420 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events),
or, subject to the rules and regulations of the Principal Market, such lower price as the Company and the Required Holders may agree,
from time to time.
(dd) “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 Exchange 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 Exchange 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 Certificate of Designations 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 stockholders of the Company to surrender their shares of Common Stock without approval of the stockholders 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.
(ee) “GAAP”
means United States generally accepted accounting principles, consistently applied.
(ff) “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.
(gg) “Governmental
Authority” means any federal, foreign, state, county, municipal, provincial, or local governmental authority, court, judicial
body, arbitration tribunal, government or self-regulatory organization, commission, tribunal or organization, or any regulatory, administrative,
or other agency, or any political or other subdivision, department, commission, board, bureau, branch, division, ministry, or instrumentality
of any of the foregoing.
(hh) “Indebtedness”
means of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services, including, without limitation, “capital leases” in accordance with
United States generally accepted accounting principles consistently applied for the periods covered thereby (other than trade payables
entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect
to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all
indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case
with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller
or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations
under any leasing or similar arrangement which, in connection with United States generally accepted accounting principles, consistently
applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F)
above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
mortgage, deed of trust, lien, pledge, charge, security interest or other encumbrance of any nature whatsoever in or upon any property
or assets (including accounts and contract rights) with respect to any asset or property owned by any Person, even though the Person
which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations
in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above.
(ii) “Intellectual
Property Rights” means, with respect to the Company and its Subsidiaries, all of their rights or licenses to use all trademarks,
trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications
and registrations therefor.
(jj) “Liquidation
Event” means, whether in a single transaction or series of transactions, the voluntary or involuntary liquidation, dissolution
or winding up of the Company or such Subsidiaries the assets of which constitute all or substantially all of the assets of the business
of the Company and its Subsidiaries, taken as a whole.
(kk) “Market
Price” means $4.59.
(ll) “Material
Adverse Effect” means any material adverse effect on the business, properties, assets, liabilities, operations, results of
operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries, if any, individually or taken as a whole,
or on the transactions contemplated hereby or on the other Transaction Documents (as defined below), or by the agreements and instruments
to be entered into in connection therewith or on the authority or ability of the Company to perform its obligations under the Transaction
Documents.
(mm) “Merger
Agreement” means that certain Agreement and Plan of Merger, dated December 11, 2023, by and among the Company, Adicure, Inc.
and Evofem Biosciences, Inc., as such shall be amended, supplemented and/or restated on or after the date hereof.
(nn) “Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
(oo) “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.
(pp) “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.
(qq) “Principal
Market” means, as of any time of determination, the principal trading market, if any, in which the shares of Common Stock then
trade.
(rr) “Purchase
Agreement” means that certain Securities Purchase Agreement to be entered into on or about the date hereof by and among the
Company and the purchasers party thereto, as amended, modified or supplemented from time to time in accordance with its terms.
(ss) “Required
Holders” means, as of any time, the means Holders of a majority of the then outstanding Preferred Shares.
(tt) “Required
Premium” means as applicable (i) 150% with respect to an Alternate Conversion pursuant to clause 5(a)(xvi) above or (ii) otherwise,
125%.
(uu) “SEC”
means the United States Securities and Exchange Commission or the successor thereto.
(vv) “Securities”
means the Preferred Shares and the Conversion Shares.
(ww) “Stated
Value” shall mean $1,000 per share, subject to adjustment for stock splits, stock dividends, recapitalizations, reorganizations,
reclassifications, combinations, subdivisions or other similar events occurring after the Initial Issuance Date with respect to the Preferred
Shares.
(xx) “Stock
Combination Event” means the occurrence at any time and from time to time on or after the Purchase Agreement Effective Date
of any stock split, stock dividend, stock combination recapitalization or other similar transaction involving the Common Stock.
(yy) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(zz) “Subsequent
Placement” means at any time on or prior to the fourth anniversary of the Initial Issuance Date, the Company or any of its
Subsidiaries shall, directly or indirectly, issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce
any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked
or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated
under the 1933 Act), any Convertible Securities, any debt, any preferred stock or any purchase rights).
(aaa) “Subsidiary”
shall have the meaning set forth in the Exchange Agreement.
(bbb) “Successor
Entity” means the Person (or, if so elected by the Required Holders, the Parent Entity) formed by, resulting from or surviving
any Fundamental Transaction or the Person (or, if so elected by the Required Holders, the Parent Entity) with which such Fundamental
Transaction shall have been entered into.
(ccc) “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 applicable Holder
or (y) with respect to all determinations other than price 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.
(ddd) “Transaction
Documents” means the Exchange Agreement, this Certificate of Designations, and each of the other agreements and instruments
entered into or delivered by the Company or any of the Holders in connection with the transactions contemplated by the Exchange Agreement,
all as may be amended from time to time in accordance with the terms thereof.
(eee) “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 Required Holders. If the Company and the Required Holders 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 23. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
33. Disclosure.
Upon receipt or delivery by the Company of any notice in accordance with the terms of this Certificate of Designations, 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 applicable Holder explicitly in writing in such notice (or immediately upon receipt
of notice from such 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 such Holder), such 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.
34. Absence
of Trading and Disclosure Restrictions. The Company acknowledges and agrees that no Holder is a fiduciary or agent of the Company
and that each 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 such 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 each 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.
[The
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IN
WITNESS WHEREOF, the Company has caused this Certificate of Designations of the Certificate of Incorporation of Aditxt, Inc. to be signed
by its Chief Executive Officer on this 28th day of December, 2023.
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ADITXT, INC. |
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By: |
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Name: |
Amro
Albanna |
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Title: |
Chief
Executive Officer |
EXHIBIT
I
ADITXT,
INC.
CONVERSION
NOTICE
Reference
is made to the Certificate of Designations of the Certificate of Incorporation of Aditxt, Inc., a Delaware corporation (the “Company”)
establishing the terms, preferences and rights of the Series B-2 Convertible Preferred Stock, $0.001 par value (the “Preferred
Shares”) of the Company (the “Certificate of Designations”). In accordance with and pursuant to the Certificate
of Designations, the undersigned hereby elects to convert the number of Preferred Shares indicated below into shares of common stock,
$0.001 value per share (the “Common Stock”), of the Company, as of the date specified below.
Date of Conversion: |
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Aggregate number of Preferred Shares to be converted: |
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Aggregate Stated Value of such Preferred Shares to be converted: |
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Aggregate accrued and unpaid Dividends with respect to such Preferred Shares to be converted: |
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AGGREGATE CONVERSION AMOUNT TO BE CONVERTED: |
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Please confirm the following information: |
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Conversion Price: |
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Number of shares of Common Stock to be issued: |
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this Conversion Notice is being delivered with respect to an Alternate Conversion, check here if Holder is electing to use the following
Alternate Conversion Price: ____________ |
Please issue the Common Stock into which the applicable Preferred Shares are being converted 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: |
DTC Participant: |
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DTC Number: |
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Account Number: |
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Date:
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Name
of Registered Holder |
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Tax
ID:_____________________ |
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E-mail
Address: |
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EXHIBIT
II
ACKNOWLEDGMENT
The
Company hereby (a) acknowledges this Conversion Notice, (b) certifies that the above indicated number of shares of Common Stock are eligible
to be resold by the applicable Holder without restriction and hereby directs _________________ to issue the above indicated number of
shares of Common Stock to the Holder in accordance with the Conversion Notice.
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ADITXT, INC. |
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By: |
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Name: |
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Title: |
Exhibit 10.1
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT
(the “Agreement”) is made as of the 28th day of December 2023, by and between Aditxt, Inc., a
Delaware corporation (the “Company”), and Walleye Opportunities Master Fund Ltd, a Cayman Islands company (the
“Noteholder”).
WHEREAS, on July 24,
2023, the Company entered into a securities purchase agreement with the Noteholder (the “Purchase Agreement”),
pursuant to which the Company issued and sold to the Noteholder a secured promissory note in the principal amount of $2,625,000 (the “Note”);
WHEREAS, as of the
date hereof, the outstanding balance on the Note, including all accrued and unpaid interest thereon is $2,738,020.83;
WHEREAS, subject to
the terms and conditions set forth in this Agreement and in reliance on Section 3(a)(9) of the Securities Act of 1933, as amended (the
“Securities Act”) and/or Section 4(a)(2) of the Securities Act, the Company desires to exchange with the Noteholder,
and the Noteholder desires to exchange with the Company, the Note, including all accrued but unpaid interest thereon, for Two Thousand
Six Hundred Twenty Five (2,625) shares (the “Shares”) of newly issued Series B-2 Convertible Preferred Stock,
par value $0.001 per share (the “Series B-2 Preferred Stock”) of the Company, the terms of which are set forth
in the Certificate of Designations of Rights and Preferences of Series B-2 Convertible Preferred Stock (the “Certificate of
Designations”) in the form attached hereto as Exhibit A; and
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the premises and
the mutual agreements, representations and warranties, provisions and covenants contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Exchange;
Waiver. On the Closing Date (as defined below), subject to the terms and conditions of this Agreement, the Noteholder shall, and the
Company shall, pursuant to Section 3(a)(9) of the Securities Act and/or 4(a)(2) of the Securities Act, exchange the Note held by the Noteholder
for the Shares on the basis provided for herein. Subject to the conditions set forth herein, the exchange of the Note for the Shares shall
take place remotely via electronic delivery of signatures and documents within five (5) days of the date hereof, or at such other time
and place as the Company and the Noteholder mutually agree (the “Closing” and such date, the “Closing
Date”). At the Closing, the following transactions shall occur (such transaction an “Exchange”):
1.1 On
the Closing Date, in exchange for the Note, the Company shall deliver Shares to the Noteholder or its designee. Upon receipt of the Shares
in accordance with this Section 1.1, all of the Noteholder’s and the Company’s rights under the Note shall be extinguished.
1.2 On
the Closing Date, the Noteholder shall be deemed for all corporate purposes to have become the holder of record of the Shares, and the
Note shall be deemed for all corporate purposes to have been cancelled, irrespective of the date such Shares are delivered to the Noteholder
in accordance herewith.
1.3 The
Company and the Noteholder shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary
to effectuate the Exchange, including, at the request of the Company or its transfer agent, executed stock powers in customary form.
1.4 Subject
to the terms hereof, the Noteholder shall irrevocably waive any and all interest that was due and owing on the Note on or prior to the
Closing Date as well as any other amounts that may have accrued under the Note.
2. Closing
Conditions.
2.1 Conditions
to Noteholder’s Obligations. The obligation of the Noteholder to consummate the Exchange is subject to the fulfillment, to the
Noteholder’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions:
(a) Representations
and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct in all material
respects on the date hereof and on and as of the Closing Date as if made on and as of such date.
(b) No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before
any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit or obtain substantial damages in respect
of, this Agreement or the consummation of the transactions contemplated by this Agreement.
(c) Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Noteholder, and the Noteholder shall have received all such counterpart
originals or certified or other copies of such documents as they may reasonably request.
(d) The
Company shall have issued to the Noteholder the Shares (x) by book entry transfer registered in the name of the Noteholder (together with
a notice issued by the Transfer Agent (as defined below) reciting the book entry of such Shares to the account of such Noteholder) or
(y) at the request of the Noteholder, by physical delivery of a certificate evidencing such Shares, registered in the name of such Noteholder;
and
(e) The
Company shall have delivered to the Noteholder a duly executed copy of a voting agreement in form and substance satisfactory to the Noteholder
by Amro Albanna, Thomas J. Farley, Rowena Albanna, Corinne Pankovcin, Shahrokh Shabahang, Brian Brady, Jeffrey W. Runge, Charles A. Nelson
and any affiliates thereof (collectively, the “Management Parties”) for the benefit of the Noteholder (the “Voting
Agreement”), pursuant to which the Management Parties shall agree to vote any and all shares of Common Stock or other capital
stock of the Company owned, directly or indirectly by such Management Parties in favor of any proposal to issue to the Noteholder a number
of shares of Common Stock upon conversion of the Shares that would require approval of the Company’s stockholders in order for such
issuance to be in compliance with Nasdaq Rule 5635(a)(1) and/or 5635(d), or any other applicable rules and regulations of the Nasdaq Stock
Market.
(f) The
Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware.
2.2 Conditions
to the Company’s Obligations. The obligation of the Company to consummate the Exchange is subject to the fulfillment, to the
Company’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions:
(a) Representations
and Warranties. The representations and warranties of the Noteholder contained in this Agreement shall be true and correct in all
material respects on the date hereof and on and as of the Closing Date as if made on and as of such date.
(b) No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before
any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit, or obtain substantial damages in respect
of, this Agreement or the consummation of the transactions contemplated by this Agreement.
(c) Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Company and the Company shall have received all such counterpart
originals or certified or other copies of such documents as the Company may reasonably request.
3. Representations
and Warranties of the Company. The Company hereby represents and warrants to Noteholder that:
3.1 Organization,
Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its business or properties.
3.2 Authorization.
All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and
delivery of this Agreement and the performance of all obligations of the Company hereunder, and the authorization (or reservation for
issuance of), the Exchange, and the issuance of the Shares, have been taken on or prior to the date hereof.
3.3 Valid
Issuance of the Shares. The Shares, when issued and delivered in accordance with the terms of this Agreement, for the consideration
expressed herein, will be duly and validly issued, fully paid and non-assessable.
3.4 Compliance
With Laws. The Company has not violated any law or any governmental regulation or requirement which violation has had or would reasonably
be expected to have a material adverse effect on its business and the Company has not received written notice of any such violation.
3.5 Consents;
Waivers. No consent, waiver, approval or authority of any nature, or other formal action, by any Person, not already obtained, is
required in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions
provided for herein and therein. As used herein, “Person” means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
3.6 Acknowledgment
Regarding Noteholder’s Exchange of Securities. The Company acknowledges and agrees that the Noteholder is acting solely in its
capacity as an arm’s length investor with respect to this Agreement and the other documents entered into in connection herewith,
including the Certificate of Designations and the Voting Agreement (collectively, the “Transaction Documents”).
The Company further acknowledges that the Noteholder is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by the
Noteholder or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby
and thereby is merely incidental to the Noteholder’s acceptance of the Shares. The Company further represents to the Noteholder
that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company
and its representatives.
3.7 Absence
of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company, the Shares
or any of the Company’s officers or directors in their capacities as such.
3.8 Validity;
Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Company is a party have been duly and validly
authorized, executed and delivered on behalf of the Company and shall constitute the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles
of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights and remedies. The execution, delivery and performance by the Company
of this Agreement and each Transaction Document to which the Company is a party and the consummation by the Company of the transactions
contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Company or (ii) except as set
forth on Schedule 3.8, conflict with, or constitute a default (or an event which with notice or lapse of time or both would become
a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party or by which it is bound, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities or “blue sky” laws) applicable to the Company, except in the case
of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the ability of the Company to perform its obligations hereunder.
4. Representations
and Warranties of the Noteholder. The Noteholder hereby represents, warrants and covenants that:
4.1 Authorization.
The Noteholder has full power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby and has taken all action necessary to authorize the execution and delivery of this Agreement, the performance of its
obligations hereunder and the consummation of the transactions contemplated hereby.
4.2 Investment
Experience. The Noteholder can bear the economic risk of its investment in the Shares, and has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of an investment in the Shares.
4.3 Information.
The Noteholder and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and issuance of the Shares which have been requested by the Noteholder. The Noteholder has
had the opportunity to review the Company’s filings with the Securities and Exchange Commission. The Noteholder and its advisors,
if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations
conducted by the Noteholder or its advisors, if any, or its representatives shall modify, amend or affect the Noteholder’s right
to rely on the Company’s representations and warranties contained herein. The Noteholder understands that its investment in the
Shares involves a high degree of risk. The Noteholder has sought such accounting, legal and tax advice as it has considered necessary
to make an informed investment decision with respect to its acquisition of the Shares. The Noteholder is relying solely on its own accounting,
legal and tax advisors, and not on any statements of the Company or any of its agents or representatives, for such accounting, legal and
tax advice with respect to its acquisition of the Shares and the transactions contemplated by this Agreement.
4.4 No
Governmental Review. The Noteholder understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares
nor have such authorities passed upon or endorsed the merits of the offering of the Shares.
4.5 Validity;
Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Noteholder is a party have been duly and validly
authorized, executed and delivered on behalf of the Noteholder and shall constitute the legal, valid and binding obligations of the Noteholder
enforceable against the Noteholder in accordance with their respective terms, except as such enforceability may be limited by general
principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating
to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution, delivery and performance
by the Noteholder of this Agreement and each Transaction Document to which the Noteholder is a party and the consummation by the Noteholder
of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Noteholder
or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Noteholder is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and
state securities or “blue sky” laws) applicable to the Noteholder, except in the case of clause (ii) above, for such conflicts,
defaults or rights which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of the Noteholder to perform its obligations hereunder.
5. Additional
Covenants.
5.1 Disclosure.
The Company shall, on or before 9:30 a.m., New York City time, on the first business day after the date of this Agreement, issue a Current
Report on Form 8-K (the “8-K Filing”) disclosing all material terms of the transactions contemplated hereby.
From and after the issuance of the 8-K Filing, the Noteholder shall not be in possession of any material, nonpublic information received
from the Company or any of its respective officers, directors, employees or agents that is not disclosed in the 8-K Filing. The Company
shall not, and shall cause its officers, directors, employees and agents, not to, provide the Noteholder with any material, nonpublic
information regarding the Company from and after the filing of the 8-K Filing without the express written consent of the Noteholder. The
Company shall not disclose the name of the Noteholder in any filing, announcement, release or otherwise, unless such disclosure is required
by law or regulation. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement, whether written or oral, between the Company, any of its subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, on the one hand, and the Noteholder or any of its affiliates, on the other hand,
shall terminate.
5.2 Fees
and Expenses. Unless otherwise agreed to by the parties, each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery
and performance of this Agreement.
5.3 Section
3(a)(9) Exchange. The parties hereto acknowledge and agree that in accordance with Section 3(a)(9) of the Securities
Act, the Shares shall take on the registered characteristics of the Note being Exchanged and accordingly upon conversion of the Shares
shall be free trading and have no restrictions on resale. The Company agrees not to take any position contrary to this Section 5.3.
5.4 Shareholder
Approval. If required, the Company shall file a preliminary proxy statement relating to Shareholder Approval (as defined below) within
30 days of the Closing Date. The Company shall hold a special meeting of shareholders (which may also be at the annual meeting of shareholders)
at the earliest practical date after the date hereof and in any event no later than May 31, 2024, which meeting shall be the first meeting
of the shareholders of the Company held after the date of this Agreement (the “First Meeting”), and which shall
be held for the purpose of obtaining Shareholder Approval, with the recommendation of the Company’s Board of Directors that such
proposal be approved, and the Company shall solicit proxies from its shareholders in connection therewith in the same manner as all other
management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal.
The Company shall use its reasonable best efforts to obtain such Shareholder Approval. If the Company does not obtain Shareholder Approval
at the First Meeting, the Company shall call a further meeting of the shareholders on or prior to July 31, 2024 to seek Shareholder Approval
(the “Second Meeting”). If the Company does not obtain Shareholder Approval at the Second Meeting, the Company
shall call a further meeting of the shareholders every four (4) months thereafter to seek Shareholder Approval until the earlier of the
date Shareholder Approval is obtained or the Shares are no longer outstanding. “Shareholder Approval”
means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from
the shareholders of the Company with respect to the transactions contemplated by the this Agreement, including the issuance of all of
Conversion Shares underlying the Shares in excess of 19.99% of the issued and outstanding Common Stock on the date hereof. For the avoidance
of doubt the obligations of the Company and the provisions of this Section 5.4 shall apply, in addition to the Shares, mutatis
mutandis, to the shares of any other series of the Company’s preferred stock into which the Series B-2 Preferred Stock issued hereunder
is exchanged or reclassified pursuant to the exercise by the Noteholder of its MFN Right (as defined below) hereunder. “Conversion
Shares” means the shares of Common Stock issued and issuable upon conversion of the Series B-2 Preferred Stock issued hereunder
in accordance with the terms of the Certificate of Designations.
5.5 Most
Favored Nation. The Noteholder shall have the right, exercisable at any time following the consummation of the transactions contemplated
by that certain Agreement and Plan of Merger, dated December 11, 2023, by and among the Company, Adicure, Inc. and Evofem Biosciences,
Inc. (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Merger Agreement”),
and at any time following the consummation of the transactions contemplated by that certain Exchange Agreement to be entered into in connection
with the Merger Agreement on or about the date hereof by and between the Company and the holders of certain preferred stock of Evofem
Biosciences, Inc. (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Evofem
Exchange Agreement”), to accept, in lieu of the Shares and the terms of this Agreement, the securities and related terms
of any series of the Company’s preferred stock issued by the Company upon the consummation of the transactions contemplated by the
Merger Agreement and/or the transactions contemplated by the Evofem Exchange Agreement with the particular series of the Company’s
preferred stock whose terms are to be substituted for the Present Terms (as defined below) in accordance with this Section 5.5
being at the election of the Noteholder (such series of the Company’s preferred stock, the “Elected Series”)
(the “MFN Right”); provided, notwithstanding anything to the contrary set forth herein, that the MFN
Right shall apply to allow the Noteholder exercising its MFN Right hereunder to accept all terms of the Elected Series elected the Noteholder
except for the senior ranking of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding
up of the Company of the series of preferred stock issued to the parties identified on Schedule 5.5 attached hereto pursuant to
the transactions contemplated by the Merger Agreement (the “Ranking Limitation”). Upon the Company’s receipt
of written notice from the Noteholder of the exercise of its MFN Right, which notice shall indicate the applicable Elected Series elected
by the Noteholder for application of its MFN Right, then: (i) effective as of the consummation of the transactions contemplated by the
Merger Agreement or as of the consummation of the transactions contemplated by the Evofem Exchange Agreement, as applicable, the terms
of the Shares (and, if and to the extent relevant, the underlying securities) then held by the Noteholder and this Agreement (collectively,
“Present Terms”) shall automatically be amended by (x) substituting the form, mix and Present Terms of such
Shares (and, if and to the extent relevant, the underlying securities) with those of the applicable Elected Series (the “Elected
Series Terms”) in accordance with this Section 5.5 and (y) incorporating by reference, mutatis mutandis, the Elected
Series Terms in lieu of the Present Terms, subject in each case to the Ranking Limitation; and (ii) thereafter, upon the request of the
Company or the Noteholder, the parties shall reasonably cooperate with each other in order to further or better evidence or effect such
substitution(s) and amendment(s), and to otherwise carry out the intent and purposes of this Section 5.5, including the physical
exchange of securities.
5.6 Consents.
Prior to such time as the Company has obtained Shareholder Approval, the Company shall obtain all required consents, including the consent
of the parties to the agreements listed in Schedule 5.6 attached hereto to the issuance by the Company of the Securities in a “Variable
Rate Transaction” (as such term in defined in such agreements). As used in this Agreement, “Securities”
means the Shares and the Conversion Shares.
6. Transfer
Restrictions.
6.1 The
Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Noteholder or in connection
with a pledge as contemplated in Section 6.2, the Company may require the transferor thereof to provide to the Company an opinion
of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities
Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have
the rights and obligations the Noteholder under this Agreement.
6.2 The
Noteholder agrees to the imprinting, so long as is required by this Section 6, of a legend on any of the Securities in the following
form:
NEITHER THIS SECURITY NOR THE SECURITIES
INTO WHICH THIS SECURITY IS CONVERTIBLE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges
and agrees the Noteholder may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined
in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Noteholder may transfer pledged or
secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no
legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice
shall be required of such pledge. At the Noteholder’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including,
if the Securities have been registered for resale pursuant to a registration statement, the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the
list of selling stockholders thereunder.
6.3 Conversion
Shares shall be issued without a legend (including the legend set forth in Section 6.2 hereof) and any and all legends contained
in any previously issued Conversion Shares shall be removed at any time any one of the following conditions is satisfied: (i) there is
an effective registration statement covering the resale of such Conversion Shares, (ii) such Conversion Shares may be resold under Rule
144 and the Company is then in compliance with the current public information required under Rule 144, (iii) such Conversion Shares may
be resold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under
Rule 144 as to such Conversion Shares and without volume or manner-of-sale restrictions, or (iv) such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the United States Securities
and Exchange Commission. The Company shall, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent or the Noteholder
if required by the Transfer Agent to effect the removal of the legend from the Conversion Shares or the issuance of the Conversion Shares
without a legend hereunder, or if requested by the Noteholder, which legal opinion in either case shall be in form and substance satisfactory
to the Noteholder. As used in this Agreement, “Transfer Agent” means VStock Transfer LLC, the current transfer
agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, New York 11598, and any successor transfer agent of the
Company.
The Company agrees that at such
time as such legend is no longer required under this Section 6.3, it will, no later than the earlier of (i) two (2) Trading Days
and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following (x) delivery by the Noteholder
to the Company or the Transfer Agent of a certificate representing Conversion Shares issued with a restrictive legend or (y) written notice
from the Noteholder delivered to the Company or the Transfer Agent requesting removal of any legends from Conversion Shares that had previously
been issued by book entry transfer with a restrictive legend, as applicable (such date, the “Legend Removal Date”),
deliver or cause to be delivered to the Noteholder a certificate representing such Conversion Shares that is free from all restrictive
and other legends. Certificates for Conversion Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to
Noteholder by crediting the account of such Noteholder’s prime broker with the Depository Trust Company System as directed by such
Noteholder. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions
on transfer set forth in this Section 6. As used in this Agreement, “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the
Common Stock as in effect on the date of (x) delivery by the Noteholder to the Company or the Transfer Agent of a certificate representing
Conversion Shares issued with a restrictive legend, or (y) written notice from the Noteholder delivered to the Company or the Transfer
Agent requesting removal of any legends from Conversion Shares that had previously been issued by book entry transfer with a restrictive
legend, as applicable. As used in this Agreement, “Trading Days” means a day on which the principal Trading
Market is open for trading. As used in this Agreement, “Trading Market” means any of the following markets or
exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market,
the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the
foregoing).
6.4 In
addition to the Noteholder’s other available remedies, the Company shall pay to the Noteholder, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Conversion Shares delivered (or requested by written notice) by the Noteholder for removal
of the restrictive legend in accordance with Section 6.3 (valued based on the VWAP of the Common Stock on the date such Conversion
Shares are so delivered (or requested by written notice) by the Noteholder for removal of the restrictive legend in accordance with Section
6.3), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each
Trading Day after the Legend Removal Date until the certificate for such Conversion Shares is delivered without a legend in accordance
with Section 6.3 and (ii) if the Company fails to (A) issue and deliver (or cause to be delivered) to the Noteholder by the Legend
Removal Date a certificate representing the Conversion Shares so delivered (or requested by written notice) by Noteholder for removal
of the restrictive legend in accordance with Section 6.3, that is free from all restrictive and other legends and (B) if after
the Legend Removal Date the Noteholder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by the Noteholder of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock
equal to all or any portion of the number of shares of Common Stock that the Noteholder anticipated receiving from the Company without
any restrictive legend, then, an amount equal to the excess of the Noteholder’s total purchase price (including brokerage commissions
and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket
expenses, if any) (the “Buy-In Price”) over the product of (x) such number of Conversion Shares that the Company
was required to deliver to the Noteholder by the Legend Removal Date multiplied by (y) the lowest closing sale price of the Common
Stock on any Trading Day during the period commencing on the date of the delivery by the Noteholder to the Company of the applicable Conversion
Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).
6.5 The
Noteholder agrees with the Company that the Noteholder will sell any Securities pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and acknowledges that the removal
of the restrictive legend from Securities as set forth in this Section 6 is predicated upon the Company’s reliance upon this
understanding.
7. Miscellaneous.
7.1 Successors
and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and the respective successors and assigns of the parties. Nothing in this Agreement, express or implied,
is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
7.2 Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state or federal courts sitting
in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for
such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
7.3 Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
7.4 Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and delivered pursuant to Section 8(f) of the Purchase Agreement.
7.5 Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Noteholder.
Any amendment or waiver effected in accordance with this paragraph shall be binding upon the Noteholder and the Company, provided that
no such amendment shall be binding on a holder that does not consent thereto to the extent such amendment treats such party differently
than any party that does consent thereto.
7.6 Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance
with its terms.
7.7 Entire
Agreement. This Agreement represents the entire agreement and understanding between the parties concerning the Exchange and the other
matters described herein and therein and supersede and replaces any and all prior agreements and understandings solely with respect to
the subject matter hereof and thereof.
7.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.9 Interpretation.
Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular the plural,
the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusive meaning frequently
identified with the phrase “but not limited to” and (d) references to “hereunder” or “herein” relate
to this Agreement.
7.10 No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
7.11 Survival.
The representations, warranties and covenants of the Company and the Noteholder contained herein shall survive the Closing and delivery
of the Shares.
7.12 Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
7.13 No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.
[SIGNATURES ON
THE FOLLOWING PAGES]
IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.
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ADITXT, INC. |
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By: |
/s/ Amro Albanna |
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Name: |
Amro Albanna |
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Title: |
Chief Executive Officer |
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WALLEYE OPPORTUNITIES MASTER FUND LTD |
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By: |
/s/ William England |
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Name: |
William England |
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Title: |
Chief Executive Officer of the Manager |
[Signature Page to Exchange Agreement]
Exhibit A
Form of Certificate of Designations of Rights
and Preferences of
Series B-2 Convertible Preferred Stock
[See attached]
Exhibit 10.2
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”), dated as of December [*], 2023 is entered into by and among Aditxt, Inc., a Delaware corporation (the
“Company”), Amro Albanna (“Amro”), Thomas J. Farley
(“Farley”), Rowena Albanna (“Rowena”),
Corinne Pankovcin (“Pankovcin”), Shahrokh Shabahang (“Shabahang”), Brian Brady (“Brady”),
Jeffrey W. Runge (“Runge”), and Charles A. Nelson (“Nelson”,
and together with Amro, Farley, Rowena, Pankovcin, Shabahang, Brady and Runge, collectively, the “Shareholders”, and
each individually, a “Shareholder”), and Walleye Opportunities Master Fund Ltd, a Cayman Islands company (including
its successors and assigns, the “Purchaser”). Capitalized terms used but not defined herein shall have the meanings
given to them in the Exchange Agreement (defined below).
WHEREAS, pursuant to
that certain Exchange Agreement to be entered into on or about the date hereof by and between the Company and the Purchaser (the “Exchange
Agreement”), the Company desires to exchange with the Purchaser, and the Purchaser desires to exchange with the Company, that
certain secured promissory note of the Company in the principal amount of $2,625,000 currently held by the Purchaser (the “Note”),
for the issuance by the Company to the Purchaser of two thousand six hundred twenty five (2,625) shares of the Company’s Series
B-2 Convertible Preferred Stock, par value $0.001 per share (“Series B-2 Preferred Stock”), subject to the terms and
conditions therein contained; all capitalized terms used and not defined in this Agreement shall have the meaning given to such terms
in the Exchange Agreement;
WHEREAS, as of the
date of this Agreement, each Shareholder is the record or “beneficial owner” (within the meaning of Rule 13d-3 under the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”) of the number of shares of Common Stock of the Company, par
value $0.001 per share (“Common Stock”) set forth next to such Shareholder’s name on Schedule A hereto,
being all of the shares of Common Stock owned of record or beneficially by the Shareholders as of the date of this Agreement (collectively,
the “Owned Shares” and, together with any additional shares of Common Stock or other voting securities of the Company
of which any Shareholder acquires record or “beneficial ownership” (within the meaning of Rule 13d-3 under the Exchange Act)
after the date of this Agreement, including by purchase, as a result of a stock dividend, stock split, recapitalization, combination,
consolidation, reclassification, exchange or change of such shares, or other similar transaction, or upon exercise or conversion of any
securities (including any equity awards), the “Covered Shares”); and
WHEREAS, as a condition
to the willingness of the Purchaser to enter into the Exchange Agreement and to consummate the transactions contemplated thereby, the
Purchaser has required that the Shareholders agree, and in order to induce the Purchaser to enter into the Exchange Agreement, each of
the Shareholders has agreed, to enter into this Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company, the Shareholders, and the Purchaser hereby agree as follows:
1.
Voting Agreement.
(a)
Each Shareholder hereby agrees that at any meeting of the shareholders of the Company, however called, and at any adjournment or
postponement thereof, and in any other circumstances upon which a vote, consent or other approval (including by written consent)
is sought from the shareholders of the Company, such Shareholder shall vote or cause to be voted such Shareholder’s Covered Shares
which such Shareholder is currently entitled to vote or after the date hereof becomes entitled to vote: (i) in favor of any proposal for
approval of any transactions contemplated under the Transaction Documents requiring approval of the Company’s shareholders in order
for such transactions to be permitted under the rules and regulations of the Nasdaq Stock Market (or any successor entity), including
without limitation the issuance of all Conversion Shares issuable pursuant to the Transaction Documents in excess of the number of Conversion
Shares that would be permitted to be issued under the rules and regulations of the Nasdaq Stock Market (or any successor entity) in the
absence of such approval; and (ii) against any proposal or any other corporate action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the Company under the Transaction Documents (as defined in
the Exchange Agreement) or which could result in any of the conditions to the Company’s obligations under the Transaction Documents
not being fulfilled. For the avoidance of doubt, to the extent the Series B-2 Preferred Stock issued under the Exchange Agreement is reclassified
or exchanged for another class or series of the Company’s securities prior to Shareholder Approval being obtained (such securities
“Replacement Securities”), whether pursuant to the provisions of the Exchange Agreement or otherwise, and approval
is required from the shareholders of the Company in order for any transaction contemplated by the transaction documents with respect to
such Replacement Securities to be permitted under the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity),
including without limitation the issuance of any and all shares of Common Stock issuable upon conversion in full of all such Replacement
Securities without regard to any conversion limits set forth therein, then in such case, at any meeting of the shareholders of the Company,
however called, and at any adjournment or postponement thereof, and in any other circumstances upon which a vote, consent or other approval
(including by written consent) is sought from the shareholders of the Company, each Shareholder agrees to vote or to cause to be
voted all of such Shareholder’s Covered Shares, which such Shareholder is currently entitled to vote, or after the date hereof,
becomes entitled to vote, in favor of any proposal for approval of any such transaction contemplated by the transaction documents with
respect to such Replacement Securities requiring approval of the Company’s shareholders in order for such transaction to be permitted
under the applicable rules of the Nasdaq Stock Market (or any successor entity), the provisions of the first sentence of this Section
1(a) applying mutatis mutandis to the Replacement Securities and the transactions contemplated by the transaction documents with respect
to such Replacement Securities.
(b)
Each Shareholder agrees to promptly respond to any request by the Purchaser that such Shareholder’s Covered Shares be voted
in accordance with the provisions of Section 1(a) or that proxies be returned by such Shareholder consistent with the foregoing
with respect to such shares of Preferred Stock prior to any applicable meeting of the Company’s shareholders.
2.
Irrevocable Proxy and Power of Attorney. Each Shareholder hereby irrevocably grants to, and appoints, each of Amro Albanna,
the Chief Executive Officer of the Company, and Walleye Opportunities Master Fund Ltd, and each of them individually, as such Shareholder’s
proxy and attorney-in-fact (with full power of substitution and re-substitution), for and in the name, place and stead of Shareholder,
if and only if such Shareholder (i) fails to vote, or (ii) attempts to vote (whether by proxy, in person or by written consent), in a
manner which is inconsistent with the terms of this Agreement, to attend any meeting of the shareholders of the Company on behalf of such
Shareholder or otherwise cause all of the such Shareholder’s Covered Shares to be counted as present thereat for purposes of establishing
a quorum, to vote the Covered Shares, or grant a consent or approval in respect of the Covered Shares, solely in a manner required by
Section 1(a). Each Shareholder understands and acknowledges that the Purchaser is entering into the Exchange Agreement in reliance
upon such Shareholder’s execution and delivery of this Agreement. Each Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 2 is given in consideration of the execution of the Exchange Agreement by the Exchange Agreement, and
that such irrevocable proxy is given to secure the performance of the duties of such Shareholder under this Agreement. Each Shareholder
hereby further affirms that the irrevocable proxy is coupled with an interest sufficient at law to support an irrevocable proxy and may
under no circumstances be revoked except upon the termination of this Agreement in accordance with its terms. Each Shareholder hereby
ratifies and confirms all actions that such proxyholder may lawfully take or cause to be taken by virtue hereof. Such irrevocable proxy
is executed and intended to be irrevocable, and the exercise of the voting rights of such Shareholder’s Covered Shares in the manner
required by Section 1(a) is intended to be enforceable, in accordance with the provisions of all applicable law, including
Sections 212 and 218 of the Delaware General Corporation Law. The irrevocable proxy granted hereunder shall remain in full force and effect
for until this Agreement is terminated in accordance with its terms. With respect to the proxy granted hereunder by each Shareholder,
Walleye Opportunities Master Fund Ltd agrees not to exercise this proxy with respect to such Shareholder’s Covered Shares if such
Shareholder complies with its obligations in this Agreement. Each Shareholder shall take all further action or execute such other instruments
as may be reasonably necessary to effectuate the intent of this irrevocable proxy. Each Shareholder hereby represents that any proxies
heretofore given in respect such Shareholder’s Covered Shares, if any, with respect to the matters set forth in Section
1(a) are revocable and hereby revokes any and all such proxies.
3.
Certain Covenants.
(a)
No Transfers. Each Shareholder hereby covenants and agrees that such Shareholder shall not, and shall not offer or agree
to, at any time prior to the Termination Date, sell, transfer, tender, assign, hypothecate or otherwise dispose of, any of such Shareholder’s
Covered Shares, or create or permit to exist any security interest or lien on any of such Shareholder’s Covered Shares (each a “Transfer”)
without (i) providing at least thirty (30) days’ written notice to the Purchaser prior to such Transfer and (ii) delivering a written
agreement (enforceable by the Purchaser) executed by the intended transferee of such Covered Shares pursuant to which such transferee
agrees to be bound by the provisions applicable to such Shareholder set forth in this Agreement.
(b)
No Inconsistent Agreements. Each Shareholder hereby represents, covenants and agrees that such Shareholder (i) has not entered
into, and shall not enter into at any time prior to the Termination Date, any voting agreement or voting trust with respect to any of
such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (ii)
has not granted, and shall not grant at any time prior to the Termination Date, a proxy or power of attorney with respect to any of such
Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and (iii)
has not and shall not take or permit any other action that would in any way restrict, limit or interfere with the performance of such
Shareholder’s obligations hereunder or the transactions contemplated hereby.
(c)
Company Cooperation. The Company agrees that if any Shareholder attempts to Transfer, vote or provide any other Person with
the authority to vote any of such Shareholder’s Covered Shares other than in strict compliance with this Agreement, the Company
shall not (i) permit any such Transfer on the Company’s books and records, (ii) issue a new certificate or instrument representing
any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated
form or (iii) record such vote, in each case, unless and until such Shareholder shall have complied with the terms of this Agreement.
4.
Representations, Warranties of Shareholders. Each Shareholder hereby represents and warrants to the other parties hereto
as follows:
(a)
Power; Organization; Binding Agreement. Such Shareholder has full capacity to execute and deliver this Agreement and to
perform such Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by each Shareholder, and, assuming due authorization, execution and delivery by the Purchaser, this Agreement
is enforceable against such Shareholder in accordance with its terms.
(b)
No Conflicts. None of the execution and delivery by Shareholders of this Agreement, the performance by each Shareholder
of its obligations hereunder or the consummation by Shareholders of the transactions contemplated hereby will (i) require any consent
or approval under, or result in a violation or breach of, any agreement to which a Shareholder is a party or by which a Shareholder may
be bound, including any voting agreement or voting trust, (ii) result in the creation of any lien on any of the assets or properties of
a Shareholder, or (iii) violate any law applicable to such Shareholder.
(c)
Ownership of Covered Shares. Such Shareholder is the record or beneficial owner of such Shareholder’s Covered Shares.
Such Shareholder’s Covered Shares are free and clear of any liens that would materially and adversely affect the ability of such
Shareholder to perform its obligations under this Agreement. As of the date of this Agreement, except as set forth on Schedule A,
other than the Owned Shares, Shareholders do not own beneficially or of record any (i) shares of capital stock or voting securities of
the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company
or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company. For the avoidance of doubt, if any such Shareholder owns any securities of the
type described in clauses (ii) and (iii) of the preceding sentence, such Shareholder will not be required hereunder to exercise, convert,
exchange or take any other action to otherwise accelerate such securities or rights with respect thereto.
(d)
Shareholder Powers. The Shareholders have the requisite voting power, power of disposition, power to issue instructions
with respect to the matters set forth herein, and power to agree to all of the matters set forth in this Agreement necessary to take all
actions required under this Agreement, in each case with respect to all of the securities subject to this Agreement owned beneficially
or of record by the Shareholders, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities
laws and those arising under the terms of this Agreement.
(e)
Reliance by Purchaser. Each Shareholder understands and acknowledges that the Purchaser is entering into the Exchange Agreement
in reliance upon each Shareholder’s execution and delivery of this Agreement.
(f) Consents and Approvals. The execution and delivery of this Agreement by the Shareholders does not, and the performance by
such Shareholder of its obligations under this Agreement and the consummation of the transactions contemplated hereby will not, require
such Shareholder to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any governmental
entity, except in each case for filings with the SEC or where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings and notifications, would not, either individually or in the aggregate, prevent or delay the performance by such
Shareholder of any of its obligations hereunder.
5.
Spousal Consent. If any Shareholder is a married individual and any of his, her or their Owned Shares constitutes community
property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, such Shareholder shall deliver
to the Purchaser, concurrently herewith, a duly executed consent of such Shareholder’s spouse, in the form attached hereto as Schedule
B.
6.
Miscellaneous.
(a)
Further Assurances. The Shareholders shall execute and deliver such further documents and instruments and take all further
action as may be reasonably necessary in order to consummate the transactions contemplated hereby.
(b)
Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the Purchaser shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at law or in equity. The Purchaser shall be entitled to its reasonable attorneys’ fees in any action
brought to enforce this Agreement in which it is the prevailing party.
(c)
Entire Agreement. This Agreement, the Exchange Agreement and the other documents delivered pursuant thereto to which the
parties hereto are a party (the “Documents”) constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof and no party shall be liable or bound to any other in any manner by any oral or
written representations, warranties, covenants and agreements except as specifically set forth herein and therein. Each party hereto expressly
represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of
this Agreement and the other Documents.
(d)
Amendment. This Agreement may not be amended except by an instrument in writing signed by the parties hereto.
(e)
Termination. This Agreement shall automatically terminate immediately following the occurrence of Shareholder Approval (the
date on which Shareholder Approval is obtained, the “Termination Date”).
(f) Binding Effect; Assignment.
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors
and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto in whole or in part (whether by operation of law or otherwise) without the prior written consent of the other parties,
and any such assignment without such consent shall be null and void.
(g)
Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable
manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.
(h)
No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
(i) Governing
Law; Jurisdiction; Waivers. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed and construed in accordance with the internal laws of the State of Delaware without giving effect to the principles
of conflicts of law thereof or of any other jurisdiction that would result in the application of the Law of any other jurisdiction. Each
of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the Borough
of Manhattan in the City of New York, New York, for the adjudication of any dispute hereunder or in connection herewith or under any
of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
The parties hereto consent to the jurisdiction and venue of the foregoing courts and consent that any process or notice of motion or
other application to any of said courts or a judge thereof may be served inside or outside the State of New York or the Southern District
of New York by registered mail, return receipt requested, directed to the party being served at its mailing address indicated under Section
6(j) hereof (and service so made shall be deemed complete three (3) days after the same has been posted as aforesaid) or by
personal service or in such other manner as may be permissible under the rules of said courts. Each of the parties hereto irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such
suit, action, or proceeding brought in such a court and any claim that suit, action, or proceeding has been brought in an inconvenient
forum. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(j)
Notices. All notices, communications or deliveries provided for hereunder must be in writing and will be deemed to have
been duly given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via email
prior to 5:30 p.m. (New York City time) on any Trading Day; (b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via email on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any Trading Day;
(c) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon
actual receipt by the party to whom such notice is required to be given, addressed as follows:
|
if to the Company: |
Aditxt, Inc. |
|
|
737 N. Fifth Street, Suite 200 |
|
|
Richmond, VA 23219 |
|
|
Attention: Amro Albanna, Chief Executive Officer |
|
|
Email: aalbanna@aditxt.com |
|
|
|
|
if to the Shareholders: |
At the address and/or email address of each Shareholder
set forth on Schedule A attached hereto; |
|
|
|
|
if to the Purchaser: |
Walleye Opportunities Master Fund Ltd |
|
|
2800 Niagara Lane North, |
|
|
Plymouth, MN 55447 |
|
|
Attn: General Counsel |
|
|
Email: legal@walleyecapital.com |
or as to the Company, any of
the Shareholders or the Purchaser, at such other address as shall be designated by such party in a written notice to the other parties
delivered in accordance with this Section 6(j).
(k)
Rules of Construction. The parties hereto agree that they have been represented by legal counsel during the negotiation,
execution and delivery of this Agreement and therefore waive the application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
(l) Counterparts.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that
both parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a ‘.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such ‘.pdf” signature page was an original thereof.
(m)
No Agreement as Director or Officer. Each Shareholder is entering into this Agreement solely in such Shareholder’s
capacity as the record or beneficial owner of the applicable Covered Shares, and no Shareholder shall be deemed to be making any agreement
in this Agreement in the capacity as a director or officer of the Company or that would limit any Person’s ability to take or fulfill,
or refrain from taking or fulfilling, actions, fiduciary duties or other obligations as a director or officer of the Company.
[signature pages
follow]
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first above written.
|
COMPANY: |
|
|
|
ADITXT, INC. |
|
|
|
By: |
|
|
Name: |
Amro Albanna |
|
Title: |
Chief Executive Officer |
|
|
|
SHAREHOLDERS: |
|
|
|
|
|
Amro Albanna |
|
|
|
|
|
Thomas J. Farley |
|
|
|
|
|
Rowena Albanna |
|
|
|
|
|
Corinne Pankovcin |
|
|
|
|
|
Shahrokh Shabahang |
|
|
|
|
|
Brian Brady |
|
|
|
|
|
Jeffrey W. Runge, M.D. |
|
|
|
|
|
Charles A. Nelson |
[Signature Page to Voting Agreement – Series
B-2 Preferred Convertible Stock]
|
PURCHASER: |
|
|
|
Walleye Opportunities Master Fund Ltd |
|
|
|
By: |
|
|
|
Name: |
William England |
|
|
Title: |
Chief Executive Officer of the Manager |
[Signature Page to Voting Agreement – Series
B-2 Convertible Preferred Stock]
Schedule A
Shareholder Name |
|
Owned Shares* |
|
Address |
Amro Albanna |
|
377 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: aalbanna@aditxt.com |
Corinne Pankovcin |
|
86 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: cpankovcin@aditxt.com |
Thomas J. Farley |
|
80 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: tfarley@aditxt.com |
Rowena Albanna |
|
89 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: ralbanna@aditxt.com |
Shahrokh Shabahang |
|
563 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: sshabahang@aditxt.com |
Brian Brady |
|
14 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: brianmbrady@gmail.com |
Jeffrey W. Runge |
|
8 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: JWR@biologueconsulting.com |
Charles A. Nelson |
|
261 |
|
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention: Aditxt, Inc.
E-mail: charles.nlsn@gmail.com |
| * | If any additional shares of Common Stock are owned of record
or beneficially by any of the Shareholders as of the date of this Agreement, such shares shall be automatically deemed “Owned Shares”
notwithstanding the contents of this Schedule A. |
Schedule B
SPOUSAL CONSENT
The
undersigned represents that the undersigned is the spouse of: _________________________ and that the undersigned is familiar with the
terms of the Voting Agreement (the “Agreement”), entered into as of December 27, 2023, by and among Aditxt, Inc., a
Delaware corporation (the “Company”), Walleye Opportunities Master Fund Ltd (the “Purchaser”), and
the Shareholders (as defined in the Agreement) party thereto, including the undersigned’s spouse. The undersigned hereby agrees
that the interest of the undersigned’s spouse in all property which is the subject of the Agreement shall be irrevocably bound by
the terms of the Agreement and by any amendment, modification, waiver or termination signed by the undersigned’s spouse. The undersigned
further agrees that the undersigned’s community property interest (if applicable) in all property which is the subject of the Agreement
shall be irrevocably bound by the terms of the Agreement, and that the Agreement shall be binding on the executors, administrators, heirs
and assigns of the undersigned. The undersigned further authorizes the undersigned’s spouse to amend, modify or terminate the Agreement,
or waive any rights thereunder, and that each such amendment, modification, waiver or termination signed by the undersigned’s spouse
shall be binding on the community property interest of undersigned in all property which is the subject of the Agreement and on the executors,
administrators, heirs and assigns of the undersigned, each as fully as if the undersigned had signed such amendment, modification, waiver
or termination.
Dated:____________________, 2023 |
|
|
|
|
Name: |
Exhibit 99.1
Aditxt, Inc. Regains Compliance with Nasdaq
Stockholders’ Equity Requirement
Richmond, Va., January 02, 2024 –
Aditxt, Inc. (“Aditxt” or “the Company”) (NASDAQ: ADTX), a company dedicated to discovering, developing, and deploying
promising health innovations, today announced that it has received confirmation from The Nasdaq Stock Market LLC (“Nasdaq”)
Hearing Panel that it has regained compliance with minimum stockholders’ equity requirement in Nasdaq Listing Rule 5550(b)(1), subject
to a mandatory panel monitor until December 29, 2024.
This development is particularly significant in
the context of Aditxt’s broader strategic goals. The Company is dedicated to engaging stakeholders in accelerating innovation addressing
autoimmunity, health by the numbers, prolonging life through transplantation, population health, and women’s health with the recently
announced Evofem transaction. Regaining compliance with Nasdaq’s requirements paves the way for future growth and innovation.
“Regaining compliance with Nasdaq is crucial
for Aditxt.” Amro Albanna, Co-Founder, Chairman, and CEO of Aditxt, commented on this announcement: “It is a testament to
our commitment to excellence in corporate governance, operational integrity, and financial transparency. Being publicly traded on the
Nasdaq is integral to our business model. It enables an inclusive approach to decision-making, where stakeholders, not just a select few,
can actively participate in steering the course of promising innovations. Today’s announcement validates our efforts and reinforces
our mission to advance health innovations that could significantly impact global health outcomes and enhance shareholder value.”
About Aditxt, Inc.
Aditxt is dedicated to discovering, developing,
and deploying promising health innovations. Aditxt’s diverse portfolio includes Adimune™, Inc., developing a new class of
therapeutics designed to retrain the immune system to address organ rejection, autoimmunity, and allergies; and Pearsanta™, Inc.,
offering timely, convenient, and high-quality personalized lab testing anytime and anywhere, backed by its CLIA-certified, CLEP, CAP-accredited
monitoring center.
For more information, visit Aditxt.com.
Forward-Looking Statements
Certain statements in this press release
constitute “forward-looking statements” within the meaning of federal securities laws. Forward-looking statements
include statements regarding the Company’s intentions, beliefs, projections, outlook, analyses or current expectations
concerning, among other things, the Company’s ongoing and planned product and business development; the Company’s
ability to finance and execute on its strategic M&A initiatives; the Company’s ability obtain the necessary funding and
partner to commence clinical trials; the Company’s intellectual property position; the Company’s ability to develop
commercial functions; expectations regarding product launch and revenue; the Company’s results of operations, cash needs,
spending, financial condition, liquidity, prospects, growth and strategies; the Company’s ability to raise additional capital;
the industry in which the Company operates; and the trends that may affect the industry or the Company. Forward-looking statements
are not guarantees of future performance and actual results may differ materially from those indicated by these forward-looking
statements as a result of various important factors, as well as market and other conditions and those risks more fully discussed in
the section titled “Risk Factors” in the Company’s most recent Annual Report on Form 10-K, as well as discussions
of potential risks, uncertainties, and other important factors in the Company’s other filings with the Securities and Exchange
Commission. All such statements speak only as of the date made, and the Company undertakes no obligation to publicly update or
revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by
law.
Media Relations Contact
mobrien@aditxt.com
Mary O’Brien
(516) 753-9933
v3.23.4
Cover
|
Dec. 28, 2023 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Dec. 28, 2023
|
Current Fiscal Year End Date |
--12-31
|
Entity File Number |
001-39336
|
Entity Registrant Name |
Aditxt, Inc.
|
Entity Central Index Key |
0001726711
|
Entity Tax Identification Number |
82-3204328
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
737 N. Fifth Street
|
Entity Address, Address Line Two |
Suite 200
|
Entity Address, City or Town |
Richmond
|
Entity Address, State or Province |
VA
|
Entity Address, Postal Zip Code |
23219
|
City Area Code |
650
|
Local Phone Number |
870-1200
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Pre-commencement Issuer Tender Offer |
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Title of 12(b) Security |
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|
Trading Symbol |
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|
Security Exchange Name |
NASDAQ
|
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