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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 17, 2023 (October 11, 2023)
Dominari Holdings
Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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000-05576 |
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52-0849320 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
725
5th Avenue, 23rd
Floor
New York, NY 10022
(703) 992-9325
(Address, including Zip Code and Telephone Number,
including
Area Code, of Principal Executive Offices)
Not Applicable
(Former name or former address, if changed since last
report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 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) |
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Name of each exchange on which registered |
Common Stock, $0.0001 par value |
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DOMH |
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The Nasdaq Capital Market |
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. |
The information set forth under “Item 3.03 Material
Modification to Rights of Security Holders” of this Current Report on Form 8-K with respect to the entry into the Rights Agreement
(as described below) is incorporated into this Item 1.01 by reference.
Item 3.03 |
Material Modification to Rights of Security Holders. |
As disclosed in a Current Report on Form 8-K filed
with the U.S. Securities and Exchange Commission on March 25, 2020, Dominari Holdings Inc., a Delaware corporation (the “Company”)
entered into a rights agreement with VStock Transfer, LLC (“VStock”), as rights agent (the “Prior Rights Agreement”)
effective March 23, 2020. Effective November 4, 2020, Continental Stock Transfer & Trust Company replaced VStock as rights agent to
the Prior Rights Agreement. The Prior Rights Agreement expired on March 23, 2023 as a result of the board of directors of the Company
(the “Board”) having not extended the expiration date pursuant to the provisions of the agreement. The Company has
now re-engaged Continental Stock Transfer & Trust Company to serve as rights agent in a new rights agreement with the Company dated
as of October 11, 2023 (the “Rights Agreement”). The terms of the Rights Agreement are virtually identical to the terms
of the Prior Rights Agreement, except with respect to the Expiration Date, as defined below, and the series of our preferred stock, par
value $0.0001 per share (“Preferred Stock”) designated for the purposes of the Rights Agreement.
Effective October 11, 2023, the Board declared a dividend
of one right (a “Right”) for each of the Company’s issued and outstanding shares of common stock, $0.0001 par
value per share (“Common Stock”). The dividend will be paid to the stockholders of record at the close of business
on September 22, 2023 (the “Record Date”). Each Right entitles the registered holder, subject to the terms of the Rights
Agreement to purchase from the Company one one-thousandth of a share of the Company’s newly designated Preferred Stock, which was
designated as Series Q Preferred Stock (the “Series Q Preferred Stock”) at a price of $5.00 (the “Exercise
Price”), subject to certain adjustments. The description and terms of the Rights are set forth in the Rights Agreement by and
between the Company and Continental Stock Transfer & Trust Company, as rights agent (the “Rights Agent”).
The Company has entered into this Rights Agreement
to preserve past net operating losses (“NOLs”) so that they may be used against potential future federal income tax
obligations. Section 382 of the Internal Revenue Code of 1986, as amended (the “Tax Code”) limits a company’s
ability to use its NOLs against future federal income tax obligations if the Company experiences an “ownership change” within
the meaning of the Code. Under the Code, a company generally experiences such an “ownership change” if the percentage
of its stock owned by its “5-percent shareholders,” as defined in the Tax Code, increases by more than 50 percentage points
over a rolling three-year period. The Rights Agreement is designed to reduce the likelihood that the Company will experience an ownership
change under the Tax Code by discouraging any person or group from becoming a shareholder of 4.99% or more of Common Stock and discouraging
any existing 4.99% shareholder from acquiring any additional shares of the Company’s stock.
The Rights will not be exercisable until the earlier
of (i) the close of business on the tenth business day after a public announcement or filing that a person has, or group of affiliated
or associated persons or persons acting in concert have, become an “Acquiring Person,” which is defined as a person
or group of affiliated or associated persons or persons acting in concert who, at any time after the date of the Rights Agreement, have
acquired, or obtained the right to acquire, beneficial ownership of 4.99% or more of the Company’s outstanding shares of Common
Stock, subject to certain exceptions or (ii) the close of business on the tenth business day after the commencement of, or announcement
of an intention to commence, a tender offer or exchange offer the consummation of which would result in any person becoming an Acquiring
Person (the earlier of such dates being called the “Distribution Date”). Certain synthetic interests in securities
created by derivative positions, whether or not such interests are considered to be ownership of the underlying Common Stock or are reportable
for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are treated
as beneficial ownership of the number of shares of Common Stock equivalent to the economic exposure created by the derivative position,
to the extent actual shares of the Common Stock are directly or indirectly held by counterparties to the derivatives contracts.
With respect to certificates representing shares of
Common Stock outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by such certificates for shares
of Common Stock registered in the names of the holders thereof, and not by separate Rights Certificates, as described further below. With
respect to book entry shares of Common Stock outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced
by the balances indicated in the book entry account system of the transfer agent for the Common Stock. Until the earlier of the Distribution
Date and the Expiration Date, as described below, the transfer of any shares of Common Stock outstanding on the Record Date will also
constitute the transfer of the Rights associated with such shares of Common Stock.
The Rights, which are not exercisable until the Distribution
Date, will expire prior to the earliest of (i) the close of business on October 11, 2024, unless the Rights Agreement is renewed up to
two additional twelve (12) month periods through October 11, 2026, as may be approved by the Board prior to the expiration of the Rights
as long as each such twelve (12) month renewal period is submitted to the stockholders of the Company for their approval and is thereby
approved, and, if not approved, with respect to any such twelve (12) month renewal period, then the last date for which this Agreement
is in effect; (ii) the time at which the Rights are redeemed pursuant to the Rights Agreement; (iii) the time at which the Rights are
exchanged pursuant to the Rights Agreement; (iv) the time at which the Rights are terminated upon the occurrence of any merger or other
acquisition transaction as described in the Rights Agreement; (v) the close of business on the effective date of the repeal of Section
382 of the Tax Code, if the Board determines that the Rights Agreement is no longer necessary or desirable for the preservation of Tax
Benefits; and (vi) the close of business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits
are available to be carried forward, (the earliest of (i), (ii), (iii), (iv), (v) and (vi) is referred to as the “Expiration
Date”).
Each share of Series Q Preferred Stock will be entitled,
when, as and if declared, to a preferential per share quarterly dividend payment equal to the greater of (i) $1.00 per share or (ii) an
amount equal to 1,000 times the dividend declared per share of Common Stock. Each share of Series Q Preferred Stock will entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Company. In the event of any merger, consolidation
or other transaction in which shares of Common Stock are converted or exchanged, each share of Series Q Preferred Stock will be entitled
to receive 1,000 times the amount received per one share of Common Stock.
The Exercise Price payable, and the number of shares
of Series Q Preferred Stock or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of the Series Q
Preferred Stock, (ii) upon the grant to holders of the Series Q Preferred Stock of certain rights or warrants to subscribe for or purchase
Series Q Preferred Stock or convertible securities at less than the then-current market price of the Series Q Preferred Stock or (iii)
upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends
or dividends payable in Series Q Preferred Stock) or of subscription rights or warrants (other than those referred to above). The number
of outstanding Rights and the number of one one-thousandths of a share of Series Q Preferred Stock issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split, reverse stock split, stock dividends and other similar transactions.
In the event that, after a person or a group of affiliated
or associated persons has become an Acquiring Person, the Company is acquired in a merger or other business combination transaction, or
50% or more of the Company’s assets or earning power are sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then-current exercise price of the Right, that number of shares
of common stock of the acquiring company having a market value at the time of that transaction equal to two times the Exercise Price.
With certain exceptions, no adjustment in the Exercise
Price will be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price. No
fractional shares of Series Q Preferred Stock will be issued upon the exercise of any Rights (other than fractions which are integral
multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts)
and, in lieu thereof, an adjustment in cash will be made based on the market price of the Series Q Preferred Stock on the trading day
immediately prior to the date of exercise.
At any time after any person or group of affiliated
or associated persons becomes an Acquiring Person and prior to the acquisition of beneficial ownership by such Acquiring Person of 50%
or more of the outstanding shares of Common Stock, the Board, at its option, may exchange each Right (other than Rights owned by such
person or group of affiliated or associated persons which will have become void), in whole or in part, at an exchange ratio of two shares
of Common Stock per outstanding Right (subject to adjustment).
At any time before any person or group of affiliated
or associated persons becomes an Acquiring Person, the Board may redeem the Rights in whole, but not in part, at a price of $0.0001 per
Right (subject to certain adjustments) (the “Redemption Price”). The redemption of the Rights may be made effective
at such time, on such basis and with such conditions as the Board in its sole discretion may establish.
Immediately upon the action of the Board electing
to redeem or exchange the Rights, the Company shall make an announcement thereof, and upon such election, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be able to receive the Redemption Price.
In addition, if a Qualifying Offer (as defined in
the Rights Agreement) is made and the Board has not redeemed the outstanding Rights or exempted such offer from the terms of the Rights
Agreement or has not called a special meeting of stockholders for the purpose of voting on whether or not to exempt such Qualifying Offer
from the terms of the Rights Agreement, in each case after ninety (90) days from the commencement of the Qualifying Offer (the “Board
Evaluation Period”), the record holders of 20% of the outstanding shares of Common Stock may request, not later than ninety
(90) days following the Board Evaluation Period, the Board to submit to a vote of stockholders at a special meeting of the stockholders
of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of the Rights
Agreement (the “Qualifying Offer Resolution”). If a Special Meeting is not held within ninety (90) days following the
last day of the Board Evaluation Period or, if at the Special Meeting the holders of a majority of the shares of Common Stock outstanding
(other than shares held by the offeror and its affiliated and associated persons) vote in favor of the Qualifying Offer Resolution, then
the Board will exempt the Qualifying Offer from the provisions of the Rights Agreement or take such other action as may be necessary to
prevent the Rights from interfering with the consummation of the Qualifying Offer.
Until a Right is exercised or exchanged, the holder
thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote or to receive
dividends.
Upon any liquidation, dissolution or winding up of
the Company, no distribution shall be made (1) to the holders of shares of stock ranking junior to the Series Q Preferred Stock unless,
prior thereto, the holders of shares of Series Q Preferred Stock shall have received the greater of (A) $1,000 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, and (B) an amount,
subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to
holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series Q Preferred Stock, except distributions made ratably on the Series Q Preferred Stock and all
such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution
or winding up.
With respect to the payment of dividends and the distribution
of assets, the Series Q Preferred Stock shall rank junior to all series of any other class of the Corporation's Preferred Stock and shall
rank senior to the Common Stock.
The Board may amend or supplement the Rights Agreement
without the approval of any holders of Rights, including, without limitation, in order to (a) cure any ambiguity, (b) correct inconsistent
provisions, (c) alter time period provisions or (d) make additional changes to the Rights Agreement that the Board deems necessary or
desirable. However, from and after any person or group of affiliated or associated persons becomes an Acquiring Person, the Rights Agreement
may not be supplemented or amended in any manner that would adversely affect the interests of the holders of Rights.
The Rights Agreement is attached hereto as Exhibit
4.1 and is incorporated herein by reference. The description of the Rights Agreement herein does not purport to be complete and is qualified
in its entirety by reference to Exhibit 4.1.
Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
In connection with the adoption of the Rights Agreement,
the Board approved a Certificate of Designation of Series Q Preferred Stock (the “Certificate of Designation”). The
Certificate of Designation was filed with the Secretary of State of the State of Delaware on October 13, 2023. See the description of
the Rights Agreement in Item 3.03 of this Current Report on Form 8-K for a more complete description of the rights and preferences of
the Series Q Preferred Stock.
The Certificate of Designation is attached hereto
as Exhibit 3.1 and is incorporated herein by reference. The description of the Certificate of Designation herein does not purport to be
complete and is qualified in its entirety by Exhibit 3.1.
Item 9.01 |
Financial Statements and Exhibits. |
SIGNATURES
Pursuant to the requirements of
the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: October 17, 2023 |
DOMINARI HOLDINGS INC. |
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By: |
/s/ Anthony Hayes |
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Name: |
Anthony Hayes |
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Title: |
Chief Executive Officer |
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
SERIES Q PREFERRED STOCK
OF
DOMINARI HOLDINGS INC.
(Pursuant to Section 151 of the Delaware General
Corporation Law)
In accordance with Section
151 of the Delaware General Corporation Law, the undersigned corporation, hereby certifies that the following resolution was adopted by
the Board of Directors of Dominari Holdings Inc., a Delaware corporation (the “Corporation”) at a meeting duly called
and held:
RESOLVED, that pursuant
to the authority granted to and vested in the Board of Directors of this Corporation (the “Board of Directors”) in
accordance with the provisions of the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate
of Incorporation”), the Board of Directors hereby creates a series of Preferred Stock, par value $0.0001 per share, of the Corporation
(the “Preferred Stock”), and hereby states the designation and number of shares, and fixes the relative rights, preferences,
and limitations thereof in this certificate of designation (this “Certificate of Designation”) as follows:
Series Q Preferred Stock:
(1) Designation and Amount.
The shares of such series shall be designated as “Series Q Preferred Stock” (the “Series Q Preferred Stock”)
and the number of shares constituting the Series Q Preferred Stock shall be 50,000 shares. Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series Q Preferred Stock
to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series Q Preferred
Stock.
(2) Dividends and Distributions.
(a) Subject to
the rights of the holders of any shares of any series of Preferred Stock (or any similar stock) ranking prior and superior to the Series
Q Preferred Stock with respect to dividends, the holders of shares of Series Q Preferred Stock, in preference to the holders of Common
Stock, par value $0.0001 per share (the “Common Stock”), of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a “Quarterly
Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series Q Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (1) $1.00 or (2)
subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000
times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series Q Preferred Stock. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series
Q Preferred Stock were entitled immediately prior to such event under clause (2) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(b) The Corporation
shall declare a dividend or distribution on the Series Q Preferred Stock as provided in paragraph (a) of this subsection immediately after
it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided,
that in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series Q Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall
begin to accrue and be cumulative on outstanding shares of Series Q Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series Q Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series Q Preferred Stock in an amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares of Series Q Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be not more than sixty (60) days prior to the date fixed for the
payment thereof.
(3) Voting Rights.
The holders of shares of Series Q Preferred Stock shall have the following voting rights:
(a) Subject to
the provision for adjustment hereinafter set forth, each share of Series Q Preferred Stock shall entitle the holder thereof to 1,000 votes
on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series Q Preferred
Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise
provided herein, in any other certificate of designation creating a series of Preferred Stock or any similar stock, or by law, the holders
of shares of Series Q Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(c) Except as set
forth herein, or as otherwise provided by law, holders of Series Q Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
(4) Certain Restrictions.
(a) Whenever quarterly
dividends or other dividends or distributions payable on the Series Q Preferred Stock as provided in Section (2) are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series Q Preferred Stock outstanding
shall have been paid in full, the Corporation shall not:
(1) declare or
pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series Q Preferred Stock;
(2) declare or
pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series Q Preferred Stock, except dividends paid ratably on the Series Q Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are
then entitled;
(3) redeem or
purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series Q Preferred Stock other than (A) such redemptions or purchases that may be deemed to occur upon the exercise
of stock options, warrants or similar rights or grant, vesting or lapse of restrictions on the grant of any other performance shares,
restricted stock, restricted stock units or other equity awards to the extent that such shares represent all or a portion of (x) the exercise
or purchase price of such options, warrants or similar rights or other equity awards and (y) the amount of withholding taxes owed by the
recipient of such award in respect of such grant, exercise, vesting or lapse of restrictions; (B) the repurchase, redemption, or other
acquisition or retirement for value of any such shares from employees, former employees, directors, former directors, consultants or former
consultants of the Corporation or their respective estate, spouse, former spouse or family member, pursuant to the terms of the agreements
pursuant to which such shares were acquired, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series Q Preferred Stock; or
(4) redeem or
purchase or otherwise acquire for consideration any shares of Series Q Preferred Stock, or any shares of stock ranking on a parity with
the Series Q Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Corporation
shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (a) of this Section (4), purchase or otherwise acquire such shares at such time and
in such manner.
(5) Reacquired Shares.
Any shares of Series Q Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance
set forth herein, in the Certificate of Incorporation, or in any other certificate of designation creating a series of Preferred Stock
or any similar stock or as otherwise required by law.
(6) Liquidation, Dissolution
or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, voluntary or otherwise, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series Q Preferred Stock unless, prior thereto, the holders of shares of Series Q Preferred Stock shall have received the greater of (A)
$1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, and (B) an amount, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate
amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the Series Q Preferred Stock, except distributions made ratably
on the Series Q Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series Q Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(7) Consolidation, Merger,
Etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of
Series Q Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series Q Preferred Stock shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(8) No Redemption.
The shares of Series Q Preferred Stock shall not be redeemable.
(9) Rank. The Series
Q Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other
class of the Corporation’s Preferred Stock and shall rank senior to the Common Stock as to such matters.
(10) Amendment. The
Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series Q Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series Q Preferred Stock, voting together as a single class.
(11) Fractional
Shares. The Series Q Preferred Stock may be issued in fractions of a share, which fractions shall entitle the holder, in proportion
to such holder’s fractional shares, to exercise voting rights, receive dividends, participate
in distributions, and to have the benefit of all other rights of holders of Series Q Preferred Stock.
(12)
Mutilated, Lost, Stolen or Destroyed Certificate. In case the Series Q Preferred Stock certificate shall be mutilated,
lost, stolen or destroyed, the Corporation shall issue and deliver in exchange and substitution for and upon cancellation of the mutilated
certificate, or in lieu of and substitution for the certificate, mutilated, lost, stolen or destroyed, a new certificate of like tenor
and representing an equivalent right or interest, but only upon receipt of evidence reasonably satisfactory to the Corporation of such
loss, theft or destruction and an indemnity or bond, if requested, also reasonably satisfactory to it.
(13) Waiver. Any waiver
by the Corporation or a holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to
be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver
by any other holders. The failure of the Corporation or a holder to insist upon strict adherence to any term of this Certificate of Designation
on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist
upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation
or a holder must be in writing.
(14) Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to
all other persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the
applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate
of interest permitted under applicable law.
(15) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed
by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict
of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by that
certain Rights Agreement, dated as of October 11, 2023, by and between the Corporation and Continental Stock Transfer & Trust Company
(whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be
commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”).
The Corporation and each holder hereby irrevocably submits to the exclusive jurisdiction of the New York Courts 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
such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. The Corporation and each holder
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 via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Certificate of Designation 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 other manner permitted
by applicable law. The Corporation and each holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated
hereby. If the Corporation or any holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other
costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the Corporation has caused this Certificate of Designation to be executed by its duly authorized officer on this 11th day of
October, 2023.
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DOMINARI HOLDINGS INC., a Delaware corporation |
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By: |
/s/ Anthony Hayes |
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Name: |
Anthony Hayes |
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Title: |
Chief Executive Officer |
Exhibit 4.1
RIGHTS AGREEMENT
This RIGHTS AGREEMENT,
dated as of October 11, 2023 (this “Agreement”), by and between Dominari Holdings Inc., a Delaware corporation
(the “Company”), and Continental Stock Transfer & Trust Company, as rights agent (the “Rights
Agent”).
WHEREAS, the Company
and the Rights Agent were parties to a Rights Agreement, dated as of November 24, 2020 (the “Prior Rights Agreement”),
which Prior Rights Agreement expired on March 23, 2023, as a result of the board of directors of the Company (the “Board”)
having not extended the expiration date, pursuant to the provisions of the Prior Rights Agreement; and
WHEREAS, (a) the Company
and certain of its Subsidiaries (as defined below) continue to have certain net operating losses and certain other tax attributes (collectively,
“NOLs”) for United States federal income tax purposes, (b) the Company desires to avoid an “ownership
change” within the meaning of Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”),
and thereby preserve the Company’s ability to utilize such NOLs, and (c) in furtherance of such objective, the Company desires to enter
into this Agreement; and
WHEREAS, the Board
authorized and declared a dividend of one preferred share purchase right (a “Right”) for each share of Common
Stock of the Company outstanding at the Close of Business on the Record Date, each Right initially representing the right to purchase
one one-thousandth (subject to adjustment) of one share of Preferred Stock, upon the terms and subject to the conditions herein set forth,
and further authorized and directed the issuance of one Right (subject to adjustment) with respect to each share of Common Stock of the
Company that will become outstanding between the Record Date and the earlier of the Distribution Date and the Expiration Date; provided,
however, that Rights may be issued with respect to shares of Common Stock that will become outstanding after the Distribution Date
and prior to the Expiration Date in accordance with Section 22 hereof; and
WHEREAS, the Company
now desires to re-engage Continental Stock Transfer & Trust Company to serve as the rights agent, pursuant to the terms and conditions
of this Agreement.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain
Definitions.
For purposes of this Agreement,
the following terms have the meanings indicated:
(a) “Acquiring
Person” shall mean any Person which, together with all of its Related Persons, is the Beneficial Owner of 4.99% or more
of the shares of Common Stock of the Company then outstanding, but shall exclude (i) the Excluded Persons, (ii) any Exempt Persons and
(iii) any Grandfathered Persons.
Notwithstanding anything in Agreement to the contrary,
no Person shall become an “Acquiring Person”:
(i) as the result of an acquisition
of shares of Common Stock by the Company which, by reducing the number of shares of Common Stock outstanding, increases the percentage
of the shares of Common Stock Beneficially Owned by such Person, together with all of its Related Persons, to 4.99% or more of the shares
of Common Stock of the Company then outstanding; provided, however, that if a Person, together with all of its Related
Persons, becomes the Beneficial Owner of 4.99% or more of the shares of Common Stock of the Company then outstanding by reason of share
acquisitions by the Company and, after such share acquisitions by the Company, becomes the Beneficial Owner of any additional shares of
Common Stock of the Company (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Stock
or pursuant to a split or subdivision of the outstanding Common Stock), then such Person shall be deemed to be an “Acquiring Person”
unless, upon becoming the Beneficial Owner of such additional shares of Common Stock, such Person, together with all of its Related Persons,
does not Beneficially Own 4.99% or more of the Common Stock then outstanding;
(ii) if (A) the Board determines
that such Person has become an “Acquiring Person” inadvertently (including, without limitation, because (1) such Person was
unaware that it Beneficially Owned a percentage of the then outstanding Common Stock that would otherwise cause such Person to be an “Acquiring
Person”; or (2) such Person was aware of the extent of its Beneficial Ownership of Common Stock but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement); and (B) such Person divests as promptly as practicable (as determined
by the Board) a sufficient number of shares of Common Stock so that such Person would no longer be an “Acquiring Person”;
(iii) solely as a result of
any unilateral grant of any security by the Company, or through the exercise of any options, warrants, rights or similar interests (including
restricted stock) granted by the Company to its directors, officers and employees; provided, however, that if a Person,
together with all of its Related Persons, becomes the Beneficial Owner of 4.99% or more of the shares of Common Stock of the Company then
outstanding by reason of a unilateral grant of a security by the Company, or through the exercise of any options, warrants, rights or
similar interests (including restricted stock) granted by the Company to its directors, officers and employees, then such Person shall
nevertheless be deemed to be an “Acquiring Person” if, subject to Section 1(a)(ii), such Person, together with all
of its Related Persons, thereafter becomes the Beneficial Owner of any additional shares of Common Stock (unless upon becoming the Beneficial
Owner of additional shares of Common Stock, such Person, together with all of its Related Persons, does not Beneficially Own 4.99% or
more of the Common Stock then outstanding), except as a result of (A) a dividend or distribution paid or made by the Company on the outstanding
Common Stock or a split or subdivision of the outstanding Common Stock; or (B) the unilateral grant of a security by the Company, or through
the exercise of any options, warrants, rights or similar interest (including restricted stock) granted by the Company to its directors,
officers and employees;
(iv) by means of share purchases
or issuances (including debt to equity exchanges), directly from the Company or indirectly through an underwritten offering of the Company,
in a transaction approved by the Board; provided, however, that a Person shall be deemed to be an “Acquiring Person”
if such Person (A) is or becomes the Beneficial Owner of 4.99% or more of the shares of Common Stock then outstanding following such transaction
and (B) following such transaction, becomes the Beneficial Owner of any additional shares of Common Stock without the prior written consent
of the Company and then Beneficially Owns 4.99% or more of the shares of Common Stock then outstanding; or
(v) if such Person is a bona
fide swaps dealer who has become an “Acquiring Person” as a result of its actions in the ordinary course of its business that
the Board determines, in its sole discretion, were taken without the intent or effect of evading or assisting any other Person to evade
the purposes and intent of this Agreement, or otherwise seeking to control or influence the management or policies of the Company.
(b) A person shall be deemed
to be “Acting in Concert” with another Person if such Person knowingly acts pursuant to an express agreement,
arrangement or understanding in concert or in parallel with such other Person, or towards a common goal with such other Person, relating
to (i) acquiring, holding, voting or disposing of voting securities of the Company or (ii) changing or influencing the control of the
Company or in connection with or as a participant in any transaction having that purpose or effect where at least one additional factor
supports a determination by the Board that such Persons intended to act in concert or in parallel, which such additional factors may include,
without limitation, exchanging information, attending meetings, conducting discussions or making or soliciting invitations to act in concert
or in parallel. In addition, a Person who is Acting in Concert with another Person shall be deemed to be Acting in Concert with any third
Person who is Acting in Concert with such other Person.
(c) “Adjustment
Shares” shall have the meaning set forth in Section 11(a)(ii) hereof.
(d) “Affiliate”
and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the Exchange Act
Regulations, as in effect on the date of this Agreement, and, to the extent not included within the foregoing, shall also include with
respect to any Person, any other Person whose shares of Common Stock would be deemed to be constructively owned by such first Person,
owned by a “single entity” with respect to such first Person as defined in Section 1.382-3(a)(1) of the Treasury Regulations,
or otherwise aggregated with shares owned by such first Person, pursuant to the provisions of Section 382 of the Code and the Treasury
Regulations promulgated thereunder.
(e) “Agreement”
shall have the meaning set forth in the Preamble hereof.
(f) A Person is the “Beneficial
Owner” of (and “Beneficially Owns” and has “Beneficial Ownership”) of
any securities (that are as such “Beneficially Owned”):
(i) that such Person or any
of such Person’s Affiliates or Associates Beneficially Owns, directly or indirectly, as determined pursuant to Rule 13d-3 of the Exchange
Act Regulations as in effect on the date of this Agreement, including pursuant to any agreement, arrangement, or understanding (whether
or not in writing), but only if the effect of such agreement, arrangement or understanding is to treat such Persons as an “entity”
under Section 1.382-3(a)(1) of the Treasury Regulations;
(ii) that such Person or any
of such Person’s Affiliates or Associates, directly or indirectly, has (A) the right to acquire (whether such right is exercisable immediately
or only after the passage of time or satisfaction of other conditions) pursuant to any agreement, arrangement or understanding (whether
or not in writing), or upon the exercise of conversion rights, exchange rights (other than the Rights), rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the “Beneficial Owner” of (1) securities (including
rights, options or warrants) that are convertible or exchangeable into or exercisable for Common Stock until such time as such securities
are converted or exchanged into or exercised for Common Stock except to the extent the acquisition or transfer of such rights, options
or warrants would be treated as exercised on the date of its acquisition or transfer under Section 1.382-4(d) of the Treasury Regulations;
or (2) securities tendered pursuant to a tender or exchange offer made in accordance with the Exchange Act Regulations by or on behalf
of such Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted for purchase or exchange;
or (B) the right to vote or dispose of, pursuant to any agreement, arrangement, or understanding (whether or not in writing), but only
if the effect of such agreement, arrangement or understanding is to treat such Persons as an “entity” under Section 1.382-3(a)(1)
of the Treasury Regulations;
(iii) that are Beneficially
Owned, directly or indirectly, by any other Person (or any Affiliate or Associate of such Person) with which such Person (or any of such
Person’s Affiliates or Associates) is Acting in Concert or has any agreement, arrangement, or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting or disposing of any such securities, but only if the effect of such agreement, arrangement
or understanding is to treat such Persons as an “entity” under Section 1.382-3(a)(1) of the Treasury Regulations; or
(iv) which are Beneficially
Owned, directly or indirectly, by a Counterparty (or any of such Counterparty’s Affiliates or Associates) under any Derivatives Contract
(without regard to any short or similar position under the same or any other Derivatives Contract) to which such Person or any of such
Person’s Affiliates or Associates is a Receiving Party; provided, however, that the number of shares of Common Stock that
a Person is deemed to Beneficially Own pursuant to this clause (iv) in connection with a particular Derivatives Contract shall not exceed
the number of Notional Common Shares with respect to such Derivatives Contract; provided, further, that the number of securities
Beneficially Owned by each Counterparty (including its Affiliates and Associates) under a Derivatives Contract shall for purposes of this
clause (iv) include all securities that are Beneficially Owned, directly or indirectly, by any other Counterparty (or any of such other
Counterparty’s Affiliates or Associates) under any Derivatives Contract to which such first Counterparty (or any of such first Counterparty’s
Affiliates or Associates) is a Receiving Party, with this proviso being applied to successive Counterparties as appropriate.
Notwithstanding anything in
this definition of “Beneficial Ownership” to the contrary, (x) no Person engaged in business as an underwriter of securities
shall be the “Beneficial Owner” of any securities acquired through such Person’s participation in good faith in a firm commitment
underwriting until the expiration of forty (40) days after the date of such acquisition; and (y) no Person shall be deemed the “Beneficial
Owner” of any security as a result of an agreement, arrangement or understanding to vote such security that would otherwise render
such Person the Beneficial Owner of such security if such agreement, arrangement or understanding is not also then reportable on Schedule
13D and arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable provisions of the Exchange Act Regulations.
Notwithstanding anything in
this definition of “Beneficial Ownership” to the contrary, to the extent not within the foregoing provisions, a Person shall
be deemed the Beneficial Owner of, and shall be deemed to beneficially own or have Beneficial Ownership of, securities which such Person
would be deemed to constructively own or which otherwise would be aggregated with shares owned by such Person pursuant to Section 382
of the Code, or any successor provision or replacement provision and the Treasury Regulations thereunder.
(g) “Board”
shall have the meaning set forth in the recitals of this Agreement.
(h) “Board Evaluation
Period” shall have the meaning set forth in Section 23(c)(i) hereof.
(i) “Book Entry”
shall mean an uncertificated book entry for the Common Stock.
(j) “Business
Day” shall mean any day other than a Saturday, a Sunday, or a day on which banking or trust institutions in the State of
New York are authorized or obligated by law or executive order to close.
(k) “Certificate
of Designation” shall have the meaning set forth in Section 1(l) hereof.
(l) “Certificate
of Incorporation” shall mean the Amended and Restated Certificate of Incorporation of the Company, as amended, as filed
with the Office of the Secretary of State of the State of Delaware, and together with the Certificate of Designation of the Preferred
Stock of the Company adopted contemporaneously with the approval of this Agreement and attached hereto as Exhibit A (the “Certificate
of Designation”), as the same may hereafter be amended or restated.
(m) “Close of
Business” on any given date shall mean 5:00 P.M., New York City time, on such date; provided, however,
that if such date is not a Business Day, it shall mean 5:00 P.M., Eastern time, on the next succeeding Business Day.
(n) “Closing Price”
shall mean in respect of any security for any day shall mean the last sale price, regular way, reported at or prior to 4:00 P.M. Eastern
time or, in case no such sale takes place on such day, the average of the bid and asked prices, regular way, reported at or prior to 4:00
P.M. Eastern time, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed
or admitted to trading on NASDAQ or the NYSE or, if the security is not listed or admitted to trading on NASDAQ or the NYSE, as reported
in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange
on which the security is listed or admitted to trading or, if the security is not listed or admitted to trading on any national securities
exchange, the last quoted price reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by any system then in use reported as of 4:00 P.M. Eastern time or, if not so
quoted, the average of the closing bid and asked price furnished by a professional market maker making a market in the security selected
by the Board or, if not so quoted, as reported by the OTC Markets Group Inc. or similar organization.
(o) “Code”
shall have the meaning set forth in the recitals to this Agreement.
(p) “Common Stock”
shall mean (i) when used with reference to the Company, the Common Stock, par value $0.0001 per share, of the Company; and (ii) when used
with reference to any Person other than the Company, the class or series of capital stock or equity interest with the greatest voting
power (in relation to any other classes or series of capital stock or equity interest) of such other Person or if such other Person is
a Subsidiary of another Person, the Person who ultimately controls such first mentioned Person.
(q) “Common Stock
Equivalents” shall have the meaning set forth in Section 11(a)(iii) hereof.
(r) “Company”
shall have the meaning set forth in the Preamble hereof.
(s) “Counterparty”
shall have the meaning set forth in Section 1(x) hereof.
(t) “Current Market
Price” of any security on any date shall mean the average of the daily closing prices per share of such security for the
thirty (30) consecutive Trading Days immediately prior to, but not including, such date; provided, however, that
in the event that the “Current Market Price” of such security is determined during a period following the announcement by
the issuer of such security of (i) a dividend or distribution on such security payable in shares of such security or securities convertible
into such shares (other than the Rights); or (ii) any subdivision, combination or reclassification of such security, and prior to the
expiration of the requisite 30 Trading Day period after but not including the ex-dividend date for such dividend or distribution or the
record date for such subdivision, combination or reclassification, then, in each such case, the “Current Market Price” shall
be appropriately adjusted to take into account ex-dividend trading. If on any such date no market maker is making a market in such security
or such security is not publicly held or not listed or traded, the “Current Market Price” shall mean the fair value per share
as determined in good faith by the Board, whose determination shall be described in a written statement filed with the Rights Agent and
shall be conclusive for all purposes.
Except as provided in this paragraph, the “Current
Market Price” of the Preferred Stock shall be determined in accordance with the method set forth above. If the Preferred Stock is
not publicly traded, the “Current Market Price” of the Preferred Stock shall be conclusively deemed to be the Current Market
Price of the Common Stock of the Company as determined pursuant to the paragraph above (appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof), multiplied by one hundred. If neither the Common Stock nor the
Preferred Stock is publicly held or so listed or traded, the “Current Market Price” of the Preferred Stock shall mean the
fair value per share as determined in good faith by the Board, whose determination shall be described in a written statement filed with
the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. For all purposes of this Agreement, the “Current
Market Price” of one one-thousandth of a share of Preferred Stock shall be equal to the “Current Market Price” of one
share of Preferred Stock divided by 1,000.
(u) “Current Value”
shall have the meaning set forth in Section 11(a)(iii) hereof.
(v) “Definitive
Acquisition Agreement” shall mean any definitive written agreement entered into by the Company that is conditioned on the
approval by the holders of not less than a majority of the outstanding shares of Common Stock at a meeting of the stockholders of the
Company with respect to (i) a merger, consolidation, recapitalization, reorganization, share exchange, business combination or similar
transaction involving the Company or (ii) the acquisition in any manner, directly or indirectly, of more than 50% of the consolidated
total assets (including, without limitation, equity securities of its subsidiaries) of the Company and its Subsidiaries.
(w)”Demanding
Stockholders” shall have the meaning set forth in Section 23(c)(i) hereof.
(x) “Derivatives
Contract” shall mean a contract between two parties (the “Receiving Party” and the “Counterparty”)
that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the Receiving
Party of a number of shares of Common Stock specified or referenced in such contract (the number corresponding to such economic benefits
and risks, the “Notional Common Shares”), regardless of whether obligations under such contract are required
or permitted to be settled through the delivery of cash, Common Stock or other property, without regard to any short position under the
same or any other Derivatives Contract. For the avoidance of doubt, interests in broad-based index options, broad-based index futures
and broad-based publicly traded market baskets of stocks approved for trading by the appropriate federal governmental authority shall
not be deemed “Derivatives Contracts.”
(y) “Distribution
Date” shall mean the earlier of (i) the Close of Business on the tenth Business Day after the Stock Acquisition Date (or,
if the tenth Business Day after the Stock Acquisition Date occurs before the Record Date, the Close of Business on the Record Date) and
(ii) the Close of Business on the tenth Business Day (or, if such tenth Business Day occurs before the Record Date, the Close of Business
on the Record Date), or such later date as may be determined by the Board prior to such time any Person becomes an Acquiring Person, after
the date of the commencement by any Person (other than any Excluded Person) of, or of the first public announcement of the intention of
any Person (other than any Excluded Person) to commence, a tender or exchange offer the consummation of which would result in such Person
becoming the Beneficial Owner of 4.99% or more of the outstanding shares of Common Stock.
(z) “Early Expiration
Date” shall have the meaning set forth in Section 7(a) hereof.
(aa) “Equivalent
Preferred Stock” shall have the meaning set forth in Section 11(b) hereof.
(bb) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(cc) “Exchange
Act Regulations” shall mean the General Rules and Regulations under the Exchange Act.
(dd) “Exchange
Date” shall have the meaning set forth in Section 7(a) hereof.
(ee) “Exchange
Ratio” shall have the meaning set forth in Section 24(a) hereof.
(ff) “Excess Shares”
shall have the meaning set forth in Section 11(a)(ii) hereof.
(gg) “Exempt Person”
shall mean any Person determined by the Board to be an “Exempt Person” in accordance with the requirements set forth in Section
25 hereof for so long as such Person complies with any limitations or conditions required by the Board in making such determination.
(hh) “Exemption
Date” shall have the meaning set forth in Section 23(c)(iii) hereof.
(ii) “Excluded
Person” shall mean (i) the Company or any of its Subsidiaries; (ii) any officers, directors and employees or any of its
Subsidiaries solely in respect of such Person’s status or authority as such (including, without limitation, any fiduciary capacity); or
(iii) any employee benefit plan of the Company or of any Subsidiary of the Company or any entity or trustee holding (or acting in a fiduciary
capacity in respect of) shares of capital stock of the Company for or pursuant to the terms of any such plan, or for the purpose of funding
other employee benefits for employees of the Company or any Subsidiary of the Company.
(jj) “Exemption
Request” shall have the meaning set forth in Section 25(a) hereof.
(kk) “Exercise
Price” shall have the meaning set forth in Section 4(a), 11(a)(ii) and 13(a) hereof.
(ll) “Expiration
Date” shall have the meaning set forth in Section 7(a) hereof.
(mm) “Final Expiration
Date” shall have the meaning set forth in Section 7(a) hereof.
(nn) “Flip-In
Event” shall mean any event described in Section 11(a)(ii) hereof.
(oo) “Flip-In
Trigger Date” shall have the meaning set forth in Section 11(a)(iii) hereof.
(pp) “Flip-Over
Event” shall mean any event described in clause (x), (y) or (z) of Section 13(a) hereof.
(qq) “Grandfathered
Person” shall mean any Person which, together with all of its Related Persons, is, as of the date of this Agreement, the
Beneficial Owner of 4.99% or more of the shares of Common Stock of the Company then outstanding. A Person ceases to be a “Grandfathered
Person” if and when (i) such Person becomes the Beneficial Owner of less than 4.99% of the shares of Common Stock of the Company
then outstanding; or (ii) such Person increases its Beneficial Ownership of shares of Common Stock of the Company to an amount equal to
or greater than the greater of (A) 4.99% of the shares of Common Stock of the Company then outstanding and (B) the sum of (1) the lowest
Beneficial Ownership of such Person as a percentage of the shares of Common Stock of the Company outstanding as of any time from and after
the public announcement of this Agreement (other than as a result of an acquisition of shares of Common Stock by the Company) plus
(2) one share of Common Stock of the Company then outstanding.
(rr) “Independent
Directors” shall mean those members of the Board who meet the criteria for independent directors of any applicable laws,
rules and regulations regarding independence in effect from time to time.
(ss) “Minimum
Tender Condition” shall have the meaning set forth in Section 1(bbb)(v).
(tt) “NASDAQ”
shall mean The NASDAQ Stock Market.
(uu) “NOLs”
shall have the meaning set forth in the recitals of this Agreement.
(vv) “Notional
Common Shares” shall have the meaning set forth in Section 1(x) hereof.
(ww) “NYSE”
shall mean the New York Stock Exchange.
(xx) “Outside
Meeting Date” shall have the meaning set forth in Section 23(c)(iii) hereof.
(yy) “Person”
shall mean any individual, firm, corporation, partnership (general or limited), limited liability company, limited liability partnership,
association, unincorporated organization, trust or other legal entity, or group of persons making a “coordinated acquisition”
of Common Stock or otherwise treated as an “entity” within the meaning of Section 1.382-3(a)(1) of the Treasury Regulations
or otherwise, including (i) any syndicate or group deemed to be a Person under Section 13(d)(3) of the Exchange Act and Rule 13d-5(b)
thereunder; and (ii) any successor (by merger or otherwise) of any such firm, corporation, partnership (general or limited), limited liability
company, limited liability partnership, association, unincorporated organization, trust, or other group or entity.
(zz) “Preferred
Stock” shall mean the Series Q Preferred Stock, par value $0.0001 per share, of the Company, having the voting rights, powers,
designations, preferences and relative, participating, optional or other special rights and qualifications, limitations and restrictions
set forth in the Certificate of Designation.
(aaa) “Principal
Party” shall have the meaning set forth in Section 13(b) hereof.
(bbb) “Qualifying
Offer” shall mean an offer determined by the Board in good faith to be:
(i) an
offer that has commenced within the meaning of Rule 14d-2(a) under the Exchange Act;
(ii) a
fully financed all-cash tender offer or an exchange offer offering shares of Common Stock of the offeror, or a combination thereof, in
each such case for any and all of the outstanding shares of Common Stock of the Company at the same per-share consideration;
(iii) an
offer whose offer price per share of Stock of the Company is greater than the highest reported market price for the Stock of the Company
in the twenty-four (24) months immediately preceding the commencement of such offer within the meaning of Rule 14d-2(a) under the Exchange
Act, with, in the case of an offer that includes shares of Common Stock of the offeror, such offer price per share of Stock of the Company
being determined using the lowest reported market price for Common Stock of the offeror during the five trading days immediately preceding
and the five trading days immediately following the commencement of such offer within the meaning of Rule 14d-2(a) under the Exchange
Act;
(iv) an
offer in respect of which, within twenty (20) Business Days after the commencement date of the offer (or within ten (10) Business Days
after any increase in the offer consideration), a nationally recognized financial advisor retained by the Board does not render an opinion
to the Board that the consideration being offered to the stockholders of the Company is either unfair or inadequate;
(v) an
offer that is conditioned on a minimum of at least a majority of (A) the shares of the Common Stock of the Company outstanding on a fully-diluted
basis; and (B) the outstanding shares of the Common Stock of the Company not held by the offeror (or such offeror’s Related Persons) being
tendered and not withdrawn as of the offer’s expiration date, which condition shall not be waivable (the “Minimum Tender Condition”);
(vi) an
offer that is subject only to the Minimum Tender Condition and other customary terms and conditions, which conditions shall not include
any financing, funding or similar conditions or any requirements with respect to the offeror or its representatives being permitted any
due diligence with respect to the books, records, management, accountants or other outside advisers of the Company;
(vii) an
offer pursuant to which the Company has received an irrevocable written commitment by the offeror that the offer, if it is otherwise to
expire prior thereto, will be extended for at least twenty (20) Business Days after any increase in the consideration offered or after
any bona fide alternative offer is commenced;
(viii) an
offer pursuant to which the Company has received an irrevocable, legally binding written commitment of the offeror that the offer will
remain open until at least the later of (A) the date the Board redeems the outstanding Rights or exempts such offer from the terms of
this Agreement; (B) if no Special Meeting Demand has been received from the holders of a Requisite Percentage with respect to such offer,
ten (10) Business Days after the end of the Board Evaluation Period; and (C) if a Special Meeting is duly requested in accordance with
Section 23, ten (10) Business Days after the date of such Special Meeting or, if no Special Meeting is held within the Special Meeting
Period, ten (10) Business Days following the last day of such Special Meeting Period;
(ix) an
offer pursuant to which the Company has received an irrevocable, legally binding written commitment of the offeror to consummate, as promptly
as practicable upon successful completion of the offer, a second step transaction whereby all shares of the Common Stock not tendered
into the offer shall be acquired at the same consideration per share of Common Stock actually paid pursuant to the offer, subject to stockholders’
statutory appraisal rights, if any;
(x) an
offer pursuant to which the Company has received an irrevocable, legally binding written commitment of the offeror that no amendments
shall be made to the offer to reduce the consideration being offered or to otherwise change the terms of the offer in a way that is adverse
to a tendering stockholder (other than extensions of the offer consistent with the terms thereof);
(xi) an offer (other than an
offer consisting solely of cash consideration) pursuant to which the Company has received the written representation and certification
of the offeror and the written representations and certifications of the offeror’s Chief Executive Officer and Chief Financial Officer,
acting in such capacities, that (A) all facts about the offeror that would be material to making an investor’s decision to accept the
offer have been fully and accurately disclosed as of the date of the commencement of the offer within the meaning of Rule 14d-2(a) of
the Exchange Act; (B) all such new facts shall be fully and accurately disclosed on a prompt basis during the entire period during which
the offer remains open; and (C) all required Exchange Act reports shall be filed by the offeror in a timely manner during such period;
and
(xii) if the offer includes
shares of Common Stock of the offeror, (A) the offeror is a publicly owned United States corporation and its Common Stock is freely tradable
and is listed or admitted to trading on either the NASDAQ or the NYSE; (B) no stockholder approval of the offeror is required to issue
such Common Stock, or, if required, such approval has already been obtained; (C) no Person (including such Person’s Related Persons) Beneficially
Owns more than 20% of the voting stock of the offeror at the time of commencement of the offer or at any time during the term of the offer;
(D) no other class of voting stock of the offeror is outstanding; and (E) the offeror meets the registrant eligibility requirements for
use of Form S-3 for registering securities under the Securities Act, including, without limitation, the filing of all required Exchange
Act reports in a timely manner during the twelve calendar months prior to the date of commencement of such offer.
For the purposes of the definition of Qualifying
Offer, “fully financed” shall mean that the offeror has sufficient funds for the offer and related expenses which shall be
evidenced by (x) firm, unqualified, written commitments from responsible financial institutions having the necessary financial capacity,
accepted by the offeror, to provide funds for such offer subject only to customary terms and conditions; (y) cash or cash equivalents
then available to the offeror, set apart and maintained solely for the purpose of funding the offer with an irrevocable, legally binding
written commitment being provided by the offeror to the Board to maintain such availability until the offer is consummated or withdrawn;
or (z) a combination of the foregoing; which evidence has been provided to the Company prior to, or upon, commencement of the offer. If
an offer becomes a Qualifying Offer in accordance with this definition, but subsequently ceases to be a Qualifying Offer as a result of
the failure at a later date to continue to satisfy any of the requirements of this definition, such offer shall cease to be a Qualifying
Offer and the provisions of Section 23 shall no longer be applicable to such offer.
(ccc) “Qualifying
Offer Resolution” shall have the meaning set forth in Section 23(c)(i) hereof.
(ddd) “Receiving
Party” shall have the meaning set forth in Section 1(x) hereof.
(eee) “Record
Date” shall mean the Close of Business on September 22, 2023.
(fff) “Redemption
Date” shall have the meaning set forth in Section 7(a) hereof.
(ggg) “Redemption
Period” shall have the meaning set forth in Section 23(a) hereof.
(hhh) “Redemption
Price” shall have the meaning set forth in Section 23(a) hereof.
(iii) “Related
Person” shall mean, as to any Person, any Affiliates or Associates of such Person.
(jjj) “Requesting
Person” shall have the meaning set forth in Section 25(a) hereof.
(kkk) “Requisite
Percentage” shall have the meaning set forth in Section 23(c)(i) hereof.
(lll) “Rights”
shall have the meaning set forth in the recitals of this Agreement.
(mmm) “Rights
Agent” shall have the meaning set forth in the Preamble hereof.
(nnn) “Rights
Certificate” shall have the meaning set forth in Section 3(d) hereof.
(ooo) “Schedule
13D” shall mean a statement on Schedule 13D pursuant to Rule 13d-1(a), 13d-1(e), 13d-1(f) or 13d-1(g) of the General Rules
and Regulations under the Exchange Act as in effect at the time of the public announcement of the declaration of the Rights dividend with
respect to the shares of Common Stock Beneficially Owned by the Person filing such statement.
(ppp) “Securities
Act” shall mean the Securities Act of 1933, as amended.
(qqq) “Special
Meeting” shall have the meaning set forth in Section 23(c)(i) hereof.
(rrr) “Special
Meeting Demand” shall have the meaning set forth in Section 23(c)(i) hereof.
(sss) “Special
Meeting Period” shall have the meaning set forth in Section 23(c)(ii) hereof.
(ttt) “Spread”
shall have the meaning set forth in Section 11(a)(iii) hereof.
(uuu) “Stock Acquisition
Date” shall mean the first date of public announcement (including, without limitation, the filing of any report pursuant
to Section 13(d) of the Exchange Act) by the Company or an Acquiring Person that a Person has become an Acquiring Person, or such other
date, as determined by the Board, on which a Person has become an Acquiring Person.
(vvv) “Subsidiary”
shall mean, with reference to any Person, any other Person of which (i) a majority of the voting power of the voting securities or equity
interests is Beneficially Owned, directly or indirectly, by such first-mentioned Person or otherwise controlled by such first-mentioned
Person; or (ii) an amount of voting securities or equity interests sufficient to elect at least a majority of the directors or equivalent
governing body of such other Person is Beneficially Owned, directly or indirectly, by such first-mentioned Person, or otherwise controlled
by such first-mentioned Person.
(www) “Substitution
Period” shall have the meaning set forth in Section 11(a)(iii) hereof.
(xxx) “Summary
of Rights” shall have the meaning set forth in Section 3(a) hereof.
(yyy) “Tax Benefits”
shall mean the net operating loss carryovers, capital loss carryovers, general business credit carryovers, alternative minimum tax credit
carryovers and foreign tax credit carryovers, as well as any loss or deduction attributable to a “net unrealized built-in loss”
within the meaning of Section 382 of the Code and the Treasury Regulations promulgated thereunder, of the Company or any of its Subsidiaries.
(zzz) “Trading
Day” shall mean, in respect to any security, (i) if such security is listed or admitted to trading on any national securities
exchange, a day on which the principal national securities exchange on which such security is listed or admitted to trading is open for
the transaction of business; and (ii) if such security is not so listed or admitted, a Business Day.
(aaaa) “Treasury
Regulations” shall mean the U.S. Treasury Regulations promulgated under the Code, as may be amended from time to time.
(bbbb) “Triggering
Event” shall mean any Flip-In Event or any Flip-Over Event.
(cccc) “Trust”
shall have the meaning set forth in Section 24(d) hereof.
(dddd) “Trust
Agreement” shall have the meaning set forth in Section 24(d) hereof.
Section 2. Appointment
of Rights Agent.
The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time appoint such co-Rights Agents as it may deem necessary or desirable; provided that
the Company shall notify the Rights Agent in writing two Business Days prior to such appointment. In the event the Company appoints one
or more co-Rights Agents, the respective duties of the Rights Agent and any co-Rights Agents under the provisions of this Agreement shall
be as the Company reasonably determines, and the Company shall notify, in writing, the Rights Agent and any co-Rights Agents of such duties.
The Rights Agent shall have no duty to supervise, and shall in no event be liable for, the acts or omissions of any such co-Rights Agents.
Section 3. Issue
of Rights Certificates.
(a) On the Record Date, or
as soon as practicable thereafter, the Company will send (directly or, at the expense of the Company, through the Rights Agent or its
transfer agent if the Rights Agent or transfer agent is directed by the Company and provided with all necessary information and documents)
a copy of a Summary of Rights to Purchase Preferred Stock, in substantially the form attached hereto as Exhibit B and which may
be appended to certificates that represent shares of Common Stock (the “Summary of Rights”), to each record
holder of Common Stock as of the Close of Business on the Record Date (other than any Acquiring Person or any Associate or Affiliate of
any Acquiring Person), at the address of such holder shown on the records of the Company or transfer agent or register for Common Stock.
With respect to certificates representing shares of Common Stock (or Book Entry shares of Common Stock) outstanding as of the Record Date,
until the Distribution Date, the Rights shall be evidenced by such shares of Common Stock registered in the names of the holders thereof
together with the Summary of Rights, and not by separate Rights Certificates. With respect to Book Entry shares of Common Stock outstanding
as of the Record Date, until the Distribution Date, the Rights shall be evidenced by the balances indicated in the Book Entry account
system of the transfer agent for the Common Stock together with the Summary of Rights. Until the earlier of the Distribution Date and
the Expiration Date, the transfer of any shares of Common Stock outstanding on the Record Date (whether represented by certificates or
evidenced by the balances indicated in the Book Entry account system of the transfer agent for the Common Stock, and, in either case,
regardless of whether a copy of the Summary of Rights is submitted with the surrender or request for transfer), shall also constitute
the transfer of the Rights associated with such shares of Common Stock.
(b) Rights shall be issued,
without any further action, in respect of all shares of Common Stock that become outstanding (whether originally issued or delivered from
the Company’s treasury) after the Record Date but prior to the earlier of the Distribution Date and the Expiration Date; provided,
however, that Rights also shall be issued to the extent provided in Section 21 hereof. Confirmation and account statements
sent to holders of Common Stock for Book Entry form or, in the case of certificated shares, certificates, representing such shares of
Common Stock, issued after the Record Date shall bear a legend substantially in the following form:
“[This certificate] [These shares] also
evidence[s] and entitle[s] the holder hereof to certain Rights as set forth in a Rights Agreement between Dominari Holdings Inc., a Delaware
corporation (the “Company”), and Continental Stock Transfer & Trust Company or any successor Rights Agent (the
“Rights Agent”), dated as of October 11, 2023, as the same may be amended or supplemented from time to time (the “Rights
Agreement”), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as set forth in the Rights Agreement, such Rights shall be evidenced by
separate certificates and will no longer be evidenced by [this certificate] [these shares]. The Company will mail to the holder of [this
certificate] [these shares] a copy of the Rights Agreement as in effect on the date of mailing without charge after receipt of a written
request therefor.
Under certain circumstances, as set forth
in the Rights Agreement, Rights that are Beneficially Owned by any Person who is, was or becomes an Acquiring Person or any Related Person
thereof (as such capitalized terms are defined in the Rights Agreement), or specified transferees of such Acquiring Person (or Related
Person thereof) may become null and void and will no longer be transferable.”
With respect to all certificates
representing shares of Common Stock containing the foregoing legend, until the earliest of the Distribution Date and the Expiration Date,
the Rights associated with the Common Stock represented by such certificates shall be evidenced by such certificates alone and registered
holders of Common Stock shall also be the registered holders of the associated Rights, and the transfer of any such certificate shall
also constitute the transfer of the Rights associated with the shares of Common Stock represented by such certificates.
With respect to Common Stock
in Book Entry form for which there has been sent a confirmation or account statement containing the foregoing legend, until the earliest
of the Distribution Date and the Expiration Date, the Rights associated with the Common Stock shall be evidenced by such Common Stock
alone and registered holders of Common Stock shall also be the registered holders of the associated Rights, and the transfer of any such
Common Stock shall also constitute the transfer of the Rights associated with such shares of Common Stock.
Notwithstanding this paragraph
(b), the omission of the legend or the failure to send, deliver or provide the registered owner of shares of Common Stock a copy of the
Summary of Rights shall not affect the enforceability of any part of this Agreement or the rights of any holder of the Rights.
In the event that the Company
purchases or otherwise acquires any shares of Common Stock after the Record Date but prior to the Distribution Date, any Rights associated
with such shares of Common Stock shall be cancelled and retired so that the Company is not entitled to exercise any Rights associated
with the shares of Common Stock that are no longer outstanding.
(c) Until the Distribution
Date, the Rights shall be transferable only in connection with the transfer of the underlying shares of Common Stock (including a transfer
to the Company).
(d) As soon as practicable
after the Distribution Date, the Company will prepare and execute, and the Rights Agent will countersign and the Company will send or
cause to be sent (and the Rights Agent will, if so requested and provided with all necessary information and documents, at the expense
of the Company, send) by first-class, insured, postage-prepaid mail, to each record holder of shares of Common Stock as of the Close of
Business on the Distribution Date (other than any Acquiring Person or any Related Person of an Acquiring Person), at the address of such
holder shown on the records of the Company, one or more rights certificates, in substantially the form of Exhibit C hereto (the
“Rights Certificate”), evidencing one Right for each share of Common Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the number of Rights per share of Common Stock has been made pursuant to Section
11 hereof, at the time of distribution of the Rights Certificates, the Company shall make the necessary and appropriate rounding adjustments
(in accordance with Section 14(a) hereof) so that Rights Certificates representing only whole numbers of Rights are distributed
and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights shall be evidenced solely by such
Rights Certificates, and the Rights Certificates and the Rights shall be transferable separately from the transfer of Common Stock. The
Company shall promptly notify the Rights Agent in writing upon the occurrence of the Distribution Date and, if such notification is given
orally, the Company shall confirm the same in writing on or prior to the Business Day next following. Until such written notice is received
by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date has not occurred.
Section 4. Form
of Rights Certificate.
(a) The Rights Certificates
(and the forms of election to purchase and of assignment and the certificate to be printed on the reverse thereof) shall be substantially
in the form set forth in Exhibit C hereto and may have such changes or marks of identification or designation and such legends,
summaries, or endorsements printed thereon as the Company may deem appropriate (but which do not affect the rights, duties, liabilities,
protections or responsibilities of the Rights Agent), and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or any rule or regulation thereunder or with any applicable rule or regulation of any stock
exchange upon which the Rights may from time to time be listed or the Financial Industry Regulatory Authority, or to conform to customary
usage. Subject to the provisions of this Agreement, the Rights Certificates, whenever distributed, shall be dated as of the Distribution
Date and on their face shall entitle the holders thereof to purchase such number of one one-thousandths of a share of Preferred Stock
as shall be set forth therein at the price set forth therein (such price, the “Exercise Price”), but the amount
and type of securities, cash, or other assets that may be acquired upon the exercise of each Right and the Exercise Price thereof shall
be subject to adjustment as provided herein.
(b) Any Rights Certificate
issued pursuant hereto that represents Rights Beneficially Owned by (i) an Acquiring Person or any Related Person of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of any such Related Person) that becomes a transferee after the Acquiring Person becomes
an Acquiring Person; or (iii) a transferee of an Acquiring Person (or of any such Related Person) that becomes a transferee prior to or
concurrently with the Acquiring Person becoming an Acquiring Person and that receives such Rights pursuant to either (A) a transfer (whether
or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person
(or any such Related Person) or to any Person with whom such Acquiring Person (or any such Related Person) has any continuing written
or oral plan, agreement, arrangement, or understanding regarding the transferred Rights, shares of Common Stock, or the Company; or (B)
a transfer that the Board has determined in good faith to be part of a plan, agreement, arrangement, or understanding that has as a primary
purpose or effect the avoidance of Section 7(e) hereof (and any Rights Certificate issued pursuant to Section 6 or Section
11 hereof upon transfer, exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence), shall
contain upon the direction of the Board a legend substantially in the following form:
“The Rights represented by this Rights
Certificate are or were Beneficially Owned by a Person who was or became an Acquiring Person or a Related Person of an Acquiring Person
(as such terms are defined in the Rights Agreement dated as of October 11, 2023, by and between Dominari Holdings Inc. and Continental
Stock Transfer & Trust Company (the “Rights Agreement”)). Accordingly, this Rights Certificate and the Rights represented
hereby may become null and void in the circumstances specified in Section 7(e) of the Rights Agreement.”
The Company shall give written
notice to the Rights Agent promptly after it becomes aware of the existence and identity of any Acquiring Person or any Related Person
thereof. Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively without independent verification
thereof for all purposes that no Person has become an Acquiring Person or a Related Person of an Acquiring Person. The Company shall instruct
the Rights Agent in writing of the Rights which should be so legended.
Section 5. Countersignature
and Registration.
(a) The Rights Certificates
shall be executed on behalf of the Company by its Chief Executive Officer, President, Secretary, Treasurer, any Vice-President, any Assistant
Secretary or any other officer of the Company, shall have affixed thereto the Company’s corporate seal (or a facsimile thereof), and shall
be attested by the Company’s Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Rights Certificates
may be manual or by facsimile or other customary shall mean of electronic transmission (e.g., “pdf”). Rights Certificates
bearing the manual or facsimile signatures of the individuals who were at the time of execution the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersigning of
such Rights Certificates by the Rights Agent or did not hold such offices at the date of such Rights Certificates. No Rights Certificate
shall be entitled to any benefit under this Agreement or shall be valid for any purpose unless there appears on such Rights Certificate
a countersignature duly executed by the Rights Agent by manual or facsimile or other customary shall mean of electronic transmission (e.g.,
“pdf”) of an authorized officer, and such countersignature upon any Rights Certificate shall be conclusive evidence, and the
only evidence, that such Rights Certificate has been duly countersigned as required hereunder.
(b) Following the Distribution
Date, and receipt by the Rights Agent of written notice to that effect and all other relevant and necessary information referred to in
Section 3(d) hereof, the Rights Agent shall keep or cause to be kept, at its office designated for such purpose, books for registration
and transfer of the Rights Certificates issued hereunder. Such books shall show the name and address of each holder of the Rights Certificates,
the number of Rights evidenced on its face by each Rights Certificate and the date of each Rights Certificate.
Section
6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions
of Sections 4(b), 7(e) and 14 hereof, at any time after the Close of Business on the Distribution Date and at or
prior to the Close of Business on the Expiration Date, any Rights Certificate (other than Rights Certificates representing Rights that
have become null and void pursuant to Section 7(e) hereof, that have been redeemed pursuant to Section 23 hereof, or that
have been exchanged pursuant to Section 24 hereof) may be transferred, split up, combined or exchanged for another Rights Certificate,
entitling the registered holder to purchase a like number of one one-thousandths of a share of Preferred Stock (or following a Triggering
Event, Common Stock, other securities, cash or other assets, as the case may be) as the Rights Certificate or Certificates surrendered
then entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Rights Certificate
shall make such request in writing delivered to the Rights Agent, and shall surrender, together with any required form of assignment duly
executed and properly completed, the Rights Certificates to be transferred, split up, combined or exchanged at the office of the Rights
Agent designated for such purpose. The Rights Certificates are transferable only on the books and records of the Rights Agent. Neither
the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the transfer of any such surrendered
Rights Certificate until the registered holder has properly completed and executed the certificate set forth in the form of assignment
on the reverse side of such Rights Certificate and has provided such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights represented by such Rights Certificate or Related Person thereof as the Company or the Rights Agent requests,
whereupon the Rights Agent shall, subject to the provisions of Sections 4(b), 7(e) and 14 hereof, countersign and
deliver to the Person entitled thereto a Rights Certificate or Rights Certificates, as the case may be, as so requested. The Company may
require payment by the holder of the Rights of a sum sufficient to cover any tax or governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of Rights Certificates. If and to the extent the Company does require payment of
any such taxes or governmental charges, the Company shall give the Rights Agent prompt written notice thereof and the Rights Agent shall
not deliver any Rights Certificate unless and until it is satisfied that all such payments have been made, and the Rights Agent shall
forward any such sum collected by it to the Company or to such Persons as the Company specifies by written notice. The Rights Agent shall
have no duty or obligation to take any action with respect to a Rights holder under any Section of this Agreement which requires the payment
by such Rights holder applicable taxes and/or governmental charges unless and until it is satisfied that all such taxes and/or governmental
charges have been paid along with any fees charged by the Rights Agent.
(b) If a Rights Certificate
is mutilated, lost, stolen or destroyed, upon written request by the registered holder of the Rights represented thereby and upon payment
to the Company and the Rights Agent of all reasonable expenses incident thereto, there shall be issued, in exchange for and upon cancellation
of the mutilated Rights Certificate, or in substitution for the lost, stolen or destroyed Rights Certificate, a new Rights Certificate,
in substantially the form of the prior Rights Certificate, of like tenor and representing the equivalent number of Rights, but, in the
case of loss, theft, or destruction, only upon receipt of evidence satisfactory to the Company and the Rights Agent of such loss, theft
or destruction of such Rights Certificate and such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner)
or Related Persons thereof as the Company or the Rights Agent requests, and, if requested by the Company or the Rights Agent, indemnity
also satisfactory to it, including a lost securities bond.
(c) Notwithstanding
any other provision hereof, the Company and the Rights Agent may amend this Agreement to provide for uncertificated Rights in addition
to or in lieu of Rights evidenced by Right Certificates, to the extent permitted by applicable law.
Section 7. Exercise
of Rights; Exercise Price; Expiration Date of Rights.
(a) Subject to Section
7(e) hereof, the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided
herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a)
hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election
to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of
the Rights Agent designated for such purpose, together with payment of the Exercise Price for each one one-thousandth of a share of Preferred
Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which the Rights are exercised prior to the
earliest of (i) the Close of Business on October 11, 2024, unless this Agreement is renewed up to two additional twelve (12) month periods
through October 11, 2026, as may be approved by the Board prior to the expiration of the Rights as long as each such twelve (12) month
renewal period is submitted to the stockholders of the Company for their approval and is thereby approved, and, if not approved, with
respect to any such twelve (12) month renewal period, then the last date for which this Agreement is in effect (the “Final
Expiration Date”); (ii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the “Redemption
Date”); (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof (the “Exchange
Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of
the type described in Section 13(f) at which time the Rights are terminated; (the “Early Expiration Date”);
(vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement
is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable
year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (i) - (vii)
being herein referred to as the “Expiration Date”).
(b) Each Right shall entitle
the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The Exercise Price for each one one-thousandth
of a share of Preferred Stock pursuant to the exercise of a Right shall be initially $5.00 and shall be subject to adjustment from time
to time as provided in Sections 11 and 13 hereof and payable in lawful money of the United States in accordance with paragraph
(c) of this Section 7.
(c) Upon receipt of a Rights
Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly completed and duly executed,
written confirmation from the Company of receipt of payment with respect to each Right so exercised, of the Exercise Price per one one-thousandth
of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) to be purchased and an amount
equal to any applicable tax or governmental charge, then the Rights Agent shall, subject to Section 18(j) hereof, promptly (i)
(A) requisition from any transfer agent of the Preferred Stock certificates representing such number of one one-thousandths of a share
of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to
be purchased and the Company shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit
the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from
the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased
(in which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with
the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) if necessary to comply with
this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance
with Section 14 hereof; (iii) after receipt of such certificates or such depositary receipts, cause the same to be delivered to
or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder;
and (iv) if necessary to comply with this Agreement, after receipt thereof, deliver such cash, if any, to or upon the order of the registered
holder of such Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities of the Company,
pay cash and/or distribute other assets pursuant to Section 11(a) hereof, the Company shall make all arrangements necessary so
that such Common Stock, other securities, cash and/or other assets are available for distribution by the Rights Agent, if and when necessary
to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities,
cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof)
may be made in cash, by wire payment or by certified or bank check or money order payable to the order of the Company.
(d) In the event a registered
holder of any Rights Certificate exercises less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights
remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, such holder, registered in such name
or names as designated by such holder, subject to the provisions of Sections 6 and 14 hereof.
(e) Notwithstanding anything
in this Agreement to the contrary, from and after the first occurrence of a Flip-In Event, any Rights Beneficially Owned by (i) an Acquiring
Person or a Related Person of an Acquiring Person; (ii) a transferee of an Acquiring Person (or of any such Related Person) who becomes
a transferee after the Acquiring Person becomes such; or (iii) a transferee of an Acquiring Person (or of any such Related Person) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests
in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has
any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock
or the Company; or (B) a transfer that the Board has determined in good faith to be part of a plan, agreement, arrangement or understanding
that has as a primary purpose or effect the avoidance of this Section 7(e), shall be null and void without any further action,
and any holder of such Rights thereafter shall have no rights or preferences whatsoever with respect to such Rights, whether under any
provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, rights and preferences pursuant to Sections
7, 11, 13, 23 and 24 hereof). The Company shall use commercially reasonable efforts to ensure compliance
with the provisions of this Section 7(e) and Section 4(b) hereof, but neither the Company nor the Rights Agent have any
liability to any holder of Rights or any other Person as a result of the Company’s failure to make any determination with respect to an
Acquiring Person or its Related Persons or transferees hereunder.
(f) Notwithstanding anything
in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to take any action
with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by
such registered holder unless such registered holder has (i) properly completed and duly executed the certificate following the form of
election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or
Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions
herein that expressly survive the termination of this Agreement, this Agreement shall terminate upon the earlier of the Expiration Date
and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Section 8. Cancellation
and Destruction of Rights Certificates.
All Rights Certificates surrendered
for the purpose of exercise, transfer, split up, combination or exchange shall, if surrendered to the Company or to any of its agents,
be delivered to the Rights Agent for cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu thereof except as expressly permitted by this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any Rights Certificates
acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all cancelled Rights Certificates to
the Company’s transfer agent which shall dispose of such Rights Certificates in the normal course of its business.
Section 9. Reservation
and Availability of Capital Stock.
(a) The Company shall cause
to be reserved and kept available out of its authorized and unissued shares of Preferred Stock (and following the occurrence of a Triggering
Event, out of its authorized and unissued shares of Common Stock and/or other securities or out of its authorized and issued shares held
in its treasury), a number of shares of Preferred Stock (and, following the occurrence of a Triggering Event, shares of Common Stock and/or
other securities) that, as provided in this Agreement, including Section 11(a)(iii) hereof, shall be sufficient to permit the exercise
in full of all outstanding Rights. Upon the occurrence of any events resulting in an increase in the aggregate number of shares of Preferred
Stock (or Common Stock and/or other equity securities of the Company) issuable upon exercise of all outstanding Rights above the number
then reserved, the Company shall make appropriate increases in the number of shares so reserved.
(b) As long as the shares
of Preferred Stock (and following the occurrence of a Triggering Event, Common Stock and/or other securities) issuable upon the exercise
of the Rights may be listed or admitted to trading on any national securities exchange, the Company shall use its commercially reasonable
efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed or admitted
to trading on such exchange upon official notice of issuance upon such exercise.
(c) If the Company is required
to file a registration statement pursuant to the Securities Act with respect to the securities purchasable upon exercise of the Rights,
the Company shall use its commercially reasonable efforts to (i) file, as soon as practicable following the earliest date after the first
occurrence of a Flip-In Event on which the consideration to be delivered by the Company upon exercise of the Rights has been determined
in accordance with this Agreement, or as soon as is required by law following the Distribution Date, as the case may be, such registration
statement; (ii) cause such registration statement to become effective as soon as practicable after such filing; and (iii) cause such registration
statement to remain effective (and to include a prospectus at all times complying with the requirements of the Securities Act) until the
earlier of (A) the date as of which the Rights are no longer exercisable for the securities covered by such registration statement, and
(B) the Expiration Date. The Company shall also take such action as may be appropriate under, or to ensure compliance with, the securities
or “blue sky” laws of the various states in connection with the exercisability of the Rights. The Company may temporarily
suspend, with written notice thereof to the Rights Agent, for a period of time not to exceed ninety (90) days after the date set forth
in clause (i) of the first sentence of this Section 9(c), the exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer
in effect, in each case with simultaneous written notice to the Rights Agent. In addition, if the Company shall determine that a registration
statement is required following the Distribution Date, the Company may temporarily suspend the exercisability of the Rights until such
time as a registration statement has been declared effective. Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite qualification in such jurisdiction shall not have been obtained, the exercise
thereof shall not be permitted under applicable law, or an effective registration statement is required and shall not have been declared
effective or has been suspended.
(d) The Company shall take
such action as may be necessary to ensure that each one one-thousandths of a share of Preferred Stock (and, following the occurrence of
a Triggering Event, Common Stock and/or other securities that may be delivered upon exercise of Rights) shall be, at the time of delivery
of the certificates or depositary receipts for such securities (subject to payment of the Exercise Price), duly and validly authorized
and issued, fully paid and non-assessable.
(e) The Company shall pay
when due and payable any and all documentary, stamp or transfer tax, or other tax or governmental charge, that is payable in respect of
the issuance and delivery of the Rights Certificates or the issuance and delivery of any certificates or depository receipts or entries
in the Book Entry account system of the transfer agent for the Preferred Stock for a number of one one-thousandths of a share of Preferred
Stock (or Common Stock and/or other equity securities of the Company that may be delivered upon exercise of the Rights) upon the exercise
of Rights; provided, however, the Company shall not be required to pay any such tax or governmental charge that may be payable
in connection with the issuance or delivery of any of any certificates or depositary receipts or entries in the Book Entry account system
of the transfer agent for the Preferred Stock for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or
other equity securities of the Company as the case may be) to any Person other than the registered holder of the Rights Certificates evidencing
the Rights surrendered for exercise. The Company shall not be required to issue or deliver any certificates or depositary receipts or
entries in the Book Entry account system of the transfer agent for the Preferred Stock (or Common Stock and/or other equity securities
of the Company as the case may be) to, or in a name other than that of, the registered holder upon the exercise of any Rights until any
such tax or governmental charge has been paid (any such tax or governmental charge being payable by the holder of such Rights Certificate
at the time of surrender) or until it has been established to the Company’s or Rights Agent’s satisfaction that no such tax or governmental
charge is due.
Section 10. Preferred
Stock Record Date.
Each Person in whose name
any certificate or entry in the Book Entry account system of the transfer agent for the Preferred Stock for a number of one one-thousandths
of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall
be for all purposes the holder of record of such fractional shares of Preferred Stock (or Common Stock and/or other securities, as the
case may be) represented thereby on, and such certificate or entry shall be dated the date upon which the Rights Certificate evidencing
such Rights was duly surrendered and payment of the Exercise Price (and any applicable transfer taxes and governmental charges) was made;
provided, however, that if the date of such surrender and payment is a date upon which the applicable transfer books of
the Company are closed, such Person shall be deemed to have become the record holder of such securities (fractional or otherwise) on,
and such certificate or entry shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are
open; provided, further, that if delivery of a number of one one-thousandths of a share of Preferred Stock is delayed pursuant
to Section 9(c) hereof, such Persons shall be deemed to have become the record holders of such number of one one-thousandths of
a share of Preferred Stock only when such Preferred Stock first become deliverable. Prior to the exercise of the Rights evidenced thereby,
the holder of a Rights Certificate shall not be entitled to any rights of a stockholder of the Company with respect to the securities
for which the Rights are exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or
to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment
of Exercise Price, Number and Kind of Shares or Number of Rights.
The Exercise Price, the number
and kind of securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided
in this Section 11.
(a) (i) In the event the Company
at any time after the date hereof (A) declares a dividend on the Preferred Stock payable in shares of Preferred Stock; (B) subdivides
the outstanding Preferred Stock; (C) combines the outstanding Preferred Stock into a smaller number of shares; or (D) issues any shares
of its capital stock in a reclassification of Preferred Stock (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a),
then the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination
or reclassification, and the number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the case may be,
issuable on such date upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such
time becomes entitled to receive, upon payment of the Exercise Price then in effect, the aggregate number and kind of shares (or fractions
thereof) of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date,
such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event may the consideration to be paid upon the exercise of one Right be less than the aggregate
par value of the shares (or fractions thereof) of capital stock of the Company issuable upon exercise of one Right. If an event occurs
that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided
for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) Subject to Section 23
and Section 24 hereof, in the event that any Person (other than any Excluded Person), alone or together with its Related Persons,
becomes an Acquiring Person (the first occurrence of such event, the “Flip-In Event”), unless the event causing
such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then proper provision shall be made
so that promptly following the Redemption Period, each holder of a Right (except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the then current Exercise Price in
accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, a number
of shares of Common Stock of the Company equal to the result obtained by (A) multiplying the then current Exercise Price by the then number
of one one-thousandths of a share of Preferred Stock for which a Right was or would have been exercisable immediately prior to the first
occurrence of a Flip-In Event, whether or not such Right was then exercisable; and (B) dividing that product (which, following such first
occurrence, shall be referred to as the “Exercise Price” for each Right and for all purposes of this Agreement
except to the extent set forth in Section 13 hereof) by 50% of the Current Market Price of Common Stock on the date of such first
occurrence (such number of shares, the “Adjustment Shares”); provided, however, that in connection with any
exercise effected pursuant to this Section 11(a)(ii), no holder of Rights shall be entitled to receive Common Stock (or other shares
of capital stock of the Company) that would result in such holder, together with such holder’s Affiliates and Associates, becoming the
Beneficial Owner of more than 4.99% of the then-outstanding Common Stock. If a holder would, but for the immediately preceding sentence,
be entitled to receive a number of shares that would otherwise result in such holder, together with such holder’s Affiliates and Associates,
becoming the Beneficial Owner of in excess of 4.99% of the then-outstanding Common Stock (such shares, the “Excess Shares”),
then in lieu of receiving such Excess Shares and to the extent permitted by law or orders applicable to the Company, such holder will
only be entitled to receive an amount in cash or, at the election of the Company, a note or other evidence of indebtedness maturing within
nine months with a principal amount, equal to the current per share Current Market Price of a share of Common Stock at the Close of Business
on the Trading Day following the date of exercise multiplied by the number of Excess Shares that would otherwise have been issuable to
such holder. The Company shall provide the Rights Agent with written notice of the identity of any such Acquiring Person, Related Person
or the nominee or transferee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this
Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Related Person or the nominee or
transferee of any of the foregoing, unless and until it has received such notice.
(iii) In the event that the
number of shares of Common Stock authorized by the Certificate of Incorporation, but not outstanding, or reserved for issuance for purposes
other than upon exercise of the Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing
clause (ii), the Board shall, to the extent permitted by applicable law and by any agreements or instruments then in effect to which the
Company is a party, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current
Value”) over (2) the Exercise Price (such excess being the “Spread”), and (B) with respect to
each Right (subject to Section 7(e) hereof), make adequate provision to substitute for some or all of the Adjustment Shares, upon
exercise of a Right and payment of the applicable Exercise Price, (1) cash; (2) a reduction in the Exercise Price; (3) shares or fractions
of a share of Preferred Stock or other equity securities of the Company (including, without limitation, shares, or units of shares, of
Preferred Stock which the Board has determined to have the same value as shares of Common Stock) (such shares of equity securities being
herein called “Common Stock Equivalents”); (4) debt securities of the Company; (5) other assets; or (6) any
combination of the foregoing, in each case having an aggregate value equal to the Current Value, as determined by the Board based upon
the advice of a financial advisor selected by the Board; provided, however, if the Company has not made adequate provision
to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Flip-In Event;
and (y) the date on which the Redemption Period expires (the later of (x) and (y) being referred to herein as the “Flip-In
Trigger Date”), then the Company shall deliver, upon the surrender for exercise of a Right and without requiring payment
of the Exercise Price, shares of Common Stock (to the extent available), and then, if necessary such number or fractions of shares of
Preferred Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the
Spread.
If, upon the occurrence of
a Flip-In Event, the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized
for issuance upon exercise in full of the Rights, then if the Board so elects, the thirty-day period set forth above may be extended to
the extent necessary, but not more than ninety (90) days after the Flip-In Trigger Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”).
To the extent that action is to be taken pursuant to the preceding provisions of this Section 11(a)(iii), the Company (aa) shall
provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights; and (bb) may suspend
the exercisability of the Rights until the expiration of the Substitution Period in order to seek an authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant to the second sentence of this Section 11(a)(iii) and
to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement (with prompt written
notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended, as well as a public
announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of the Common Stock shall be the Current Market Price of the Common Stock on the Flip-In
Trigger Date and the value of any Common Stock Equivalents shall have the same value as the Common Stock on such date. The Board may establish
procedures to allocate the right to receive shares of Common Stock upon the exercise of the Rights among holders of Rights pursuant to
this Section 11(a)(iii).
(b) In case the Company fixes
a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring
within forty-five (45) days after such record date) to subscribe for or purchase Preferred Stock (or shares having the same rights, privileges
and preferences as the shares of Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into
Preferred Stock or Equivalent Preferred Stock at a price per share of Preferred Stock or per share of Equivalent Preferred Stock (or having
a conversion price per share, if a security convertible into Preferred Stock or Equivalent Preferred Stock) less than the Current Market
Price of the Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares
of Preferred Stock or Equivalent Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock or Equivalent
Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or Equivalent Preferred Stock
so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such
Current Market Price, and the denominator of which shall be the number of shares of Preferred Stock or Equivalent Preferred Stock outstanding
on such record date, plus the number of additional shares of Preferred Stock and/or Equivalent Preferred Stock to be offered for subscription
or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that
in no event may the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital
stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid by delivery of consideration all
or part of which may be in a form other than cash, the value of such consideration shall be determined by the Board, whose determination
shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights.
Shares of Preferred Stock or Equivalent Preferred Stock owned by or held for the account of the Company or any Subsidiary will not be
deemed outstanding for the purpose of such computation. Such adjustment shall be made successively whenever such a record date is fixed,
and in the event that such rights, options or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price
that would then be in effect if such record date had not been fixed.
(c) In case the Company fixes
a record date for a distribution to all holders of shares of Preferred Stock (including any such distribution made in connection with
a consolidation or merger in which the Company is the continuing or surviving corporation), evidences of indebtedness, cash (other than
a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in shares
of Preferred Stock, but including any dividend payable in stock other than Preferred Stock), or subscription rights, options or warrants
(excluding those referred to in Section 11(b) hereof), then, in each case, the Exercise Price to be in effect after such record
date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator
of which shall be the Current Market Price of the Preferred Stock on such record date minus the fair market value (as determined in good
faith by the Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive
for all purposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants distributable in respect of a share of Preferred Stock, and the denominator
of which shall be the Current Market Price of the Preferred Stock on such record date; provided, however, that in no event
shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock
of the Company issuable upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed;
and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price that would have
been in effect if such record date had not been fixed.
(d) Notwithstanding anything
herein to the contrary, no adjustment in the Exercise Price is required unless such adjustment would require an increase or decrease of
at least one percent (1%) in the Exercise Price; provided, however, that any adjustments that by reason of this Section
11(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of a share of Common Stock or other share or
one-millionth of a share of Preferred Stock, as the case may be. Notwithstanding the first sentence of this Section 11(d), no adjustment
required by this Section 11 may be made after the earlier of (i) three years from the date of the transaction that requires such
adjustment and (ii) the Expiration Date.
(e) If, as a result of an
adjustment made pursuant to Sections 11(a)(ii) or 13(a) hereof, the holder of any Right thereafter exercised becomes entitled
to receive any shares of capital stock other than Preferred Stock, the number of such other shares shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Stock contained
in Sections 11(a), (b), (c), (d), (f), (g), (h), (i), (j), (k) and
(l) hereof, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(f) All Rights originally
issued by the Company subsequent to any adjustment made to the Exercise Price hereunder will evidence the right to purchase, at the adjusted
Exercise Price, the number of one one-thousandths of a share of Preferred Stock (or other securities or amount of cash or combination
thereof) that may be acquired from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(g) Unless the Company has
exercised its election pursuant to Section 11(h), upon each adjustment of the Exercise Price as a result of the calculations made
in Sections 11(b) and (c) hereof, each Right outstanding immediately prior to the making of such adjustment will thereafter
evidence the right to purchase, at the adjusted Exercise Price, a number of one one-thousandths of a share of Preferred Stock (calculated
to the nearest one-millionth of a share) obtained by (i) multiplying (A) the number of one one-thousandths of a share covered by a Right
immediately prior to this adjustment by (B) the Exercise Price in effect immediately prior to such adjustment of the Exercise Price; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price.
(h) The Company may elect,
on or after the date of any adjustment of the Exercise Price, to adjust the number of Rights, in lieu of any adjustment in the
number of one one-thousandths of a share of Preferred Stock that may be acquired upon the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the number of one one-thousandths of a share of Preferred Stock
for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number
of Rights shall become a number of Rights (calculated to the nearest one ten-thousandth of a Right) obtained by dividing the Exercise
Price in effect immediately prior to adjustment of the Exercise Price by the Exercise Price in effect immediately after adjustment of
the Exercise Price. The Company shall make a public announcement (with prompt written notice thereof to the Rights Agent) of its election
to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment
to be made. Such record date may be the date on which the Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later than the date of such public announcement. If Rights Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this Section 11(h), the Company shall, as promptly as practicable, at
the option of the Company, either (A) cause to be distributed to holders of record of Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such holders are entitled as a result of such adjustment,
or (B) cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all the Rights
to which such holders become entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and delivered
by the Company, and countersigned and delivered by the Rights Agent, in the manner provided for herein (and may bear, at the option of
the Company, the adjusted Exercise Price) and shall be registered in the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
(i) Irrespective of any adjustment
or change in the Exercise Price or the number of one one-thousandths of a share of Preferred Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per one one-thousandth of a share
and the number of one one-thousandths of a share which were expressed in the initial Rights Certificates issued hereunder.
(j) Before taking any action
that would cause an adjustment reducing the Exercise Price below the then par value, if any, of the number of one one-thousandths of a
share of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate action that may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally issue, such number of fully paid and non-assessable of one
one-thousandths of a share of Preferred Stock at such adjusted Exercise Price.
(k) In any case in which this
Section 11 requires that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company
may elect to defer (with prompt written notice thereof to the Rights Agent) until the occurrence of such event the issuance to the holder
of any Right exercised after such record date of that number of one one-thousandths of a share of Preferred Stock and shares of other
capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of one one-thousandths of a
share of Preferred Stock and shares of other capital stock or securities of the Company, if any, issuable upon such exercise on the basis
of the Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder
a due bill or other appropriate instrument evidencing such holder’s right to receive such additional shares (fractional or otherwise)
or securities upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything
in this Section 11 to the contrary, prior to the Distribution Date, the Company is entitled to make such reductions in the Exercise
Price, in addition to those adjustments expressly required by this Section 11, to the extent that the Board determines that any
(i) consolidation or subdivision of the Preferred Stock; (ii) issuance wholly for cash of any shares of Preferred Stock at less than the
Current Market Price; (iii) issuance wholly for cash of shares of Preferred Stock or securities that by their terms are convertible into
or exchangeable for shares of Preferred Stock; (iv) stock dividends; or (v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its Preferred Stock is taxable to such holders or reduces the taxes payable
by such holders.
(m) The Company may not, at
any time after the Distribution Date, (i) consolidate with any other Person (other than a direct or indirect, wholly-owned Subsidiary
of the Company in a transaction that complies with Section 11(n) hereof); (ii) merge with or into any other Person (other than
a direct or indirect, wholly-owned Subsidiary of the Company in a transaction that complies with Section 11(n) hereof); or (iii)
sell or transfer (or permit any Subsidiary to sell or transfer), in one transaction, or a series of transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Company and/or any of its direct or indirect, wholly-owned Subsidiaries in one or more transactions, each of which
complies with Section 11(n) hereof), if (A) at the time of or immediately after such consolidation, merger or sale there are any
rights, warrants or other instruments or securities outstanding or agreements in effect that would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights; or (B) prior to, simultaneously with or immediately after such consolidation,
merger or sale, the stockholders or other Persons holding an equity interest in such Person that constitutes, or would constitute, the
“Principal Party” for purposes of Section 13(a) hereof shall have received a distribution of, or otherwise have transferred
to them, the Rights previously owned by such Person or any of its Related Persons; provided, however, this Section 11(m)
shall not affect the ability of any Subsidiary of the Company to consolidate with, merge with or into, or sell or transfer assets or earning
power to, any other Subsidiary of the Company.
(n) After the earlier of the
Distribution Date and the Stock Acquisition Date and as long as any Rights are outstanding (other than Rights that have become null and
void pursuant to Section 7(e) hereof), the Company may not, except as permitted by Sections 23, 24, and 27
hereof, take (or permit any Subsidiary of the Company to take) any action if at the time such action is taken it is reasonably foreseeable
that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(o) Notwithstanding anything
in this Agreement to the contrary, in the event that the Company, at any time after the date hereof and prior to the Distribution Date,
(i) declares a dividend on the outstanding shares of Common Stock payable in shares of Common Stock; (ii) subdivides any outstanding shares
of Common Stock; (iii) combines any of the outstanding shares of Common Stock into a smaller number of shares; or (iv) issues any shares
of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation), then the number of Rights associated with each share of Common
Stock then outstanding or issued or delivered thereafter but prior to the Distribution Date shall be proportionately adjusted so that
the number of Rights thereafter associated with each share of Common Stock following any such event equals the result obtained by multiplying
the number of Rights associated with each share of Common Stock immediately prior to such event by a fraction the numerator of which shall
be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustments provided
for in this Section 11(o) shall be made successively whenever such a dividend is declared or paid or such a subdivision, combination,
or reclassification is effected. If an event occurs that would require an adjustment under Section 11(a)(ii) hereof and this Section
11(o), the adjustments provided for in this Section 11(o) shall be in addition and prior to any adjustment required pursuant
to Section 11(a)(ii) hereof.
Section 12. Certificate
of Adjusted Exercise Price or Number of Shares.
Whenever an adjustment is
made or any event affecting the Rights or their exercisability (including without limitation an event that causes Rights to become null
and void) occurs as provided in Section 11 or Section 13 hereof, the Company shall (a) promptly prepare a certificate setting
forth such adjustment or describing such event, and a brief reasonably detailed statement of the facts, computations and methodology accounting
for such adjustment; (b) promptly file with the Rights Agent, and with each transfer agent for the Preferred Stock and the Common Stock,
a copy of such certificate; and (c) mail a brief summary thereof to each holder of a Rights Certificate (or, if prior to the Distribution
Date, each registered holder of shares of Common Stock) in accordance with Section 27 hereof. Notwithstanding the foregoing sentence,
the failure of the Company to make such certification or give such notice shall not affect the validity of or the force or effect of the
requirement for such adjustment. Any adjustment to be made pursuant to Section 11 or Section 13 hereof shall be effective
as of the date of the event giving rise to such adjustment. The Rights Agent shall be entitled to rely on any such certificate and on
any adjustment or statement therein contained and shall have no duty or liability with respect thereto, and shall not be deemed to have
knowledge of any such adjustment or any such event unless and until it shall have received such certificate.
Section 13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) At any time after a Person
has become an Acquiring Person, in the event that, directly or indirectly, (x) the Company consolidates with, or merges with and into,
any other Person (other than a direct or indirect, wholly-owned Subsidiary of the Company in a transaction that complies with Section
11(n) hereof), and the Company is not the continuing or surviving entity of such consolidation or merger; (y) any Person (other than
a direct or indirect, wholly-owned Subsidiary of the Company in a transaction that complies with Section 11(n) hereof) consolidates
with, or merges with or into, the Company, and the Company is the continuing or surviving entity of such consolidation or merger and,
in connection with such consolidation or merger, all or part of the outstanding shares of Common Stock is converted into or exchanged
for stock or other securities of any other Person (or the Company) or cash or any other property; or (z) the Company sells or otherwise
transfers (or one or more of its Subsidiaries sells or otherwise transfers) to any Person or Persons (other than the Company or any of
its direct or indirect, wholly-owned Subsidiaries in one or more transactions, each of which complies with Section 11(n) hereof),
in one or more transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries,
taken as a whole; (any such event described in (x), (y), or (z), a “Flip-Over Event”), then, in each such case,
proper provision shall be made so that:
(i) each holder of a Right,
except as provided in Section 7(e) hereof, upon the expiration of the Redemption Period, will have the right to receive, upon the
exercise of the Right at the then current Exercise Price in accordance with the terms of this Agreement, and in lieu of a number of one
one-thousandth shares of Preferred Stock, a number of validly authorized and issued, fully paid, non-assessable and freely tradable shares
of Common Stock of the Principal Party, free of any liens, encumbrances, rights of first refusal, transfer restrictions or other adverse
claims, equal to the result obtained by:
(A) multiplying such then
current Exercise Price by the number of one one-thousandths of a share of Preferred Stock for which such Right is exercisable immediately
prior to the first occurrence of a Flip-Over Event (or, if a Flip-In Event has occurred prior to the first occurrence of a Flip-Over Event,
multiplying the number of one one-thousandths of a share of Preferred Stock for which a Right would be exercisable hereunder but for the
first occurrence of such Flip-In Event by the Exercise Price that would be in effect hereunder but for such first occurrence), and
(B) dividing that product
(which, following the first occurrence of a Flip-Over Event, shall be the “Exercise Price” for each Right and
for all purposes of this Agreement) by 50% of the then Current Market Price of the shares of Common Stock of such Principal Party on the
date of consummation of such Flip-Over Event (or the fair market value on such date of other securities or property of the Principal Party,
as provided for herein);
(ii) such Principal Party shall
be liable for, and shall assume, by virtue of such Flip-Over Event, all the obligations and duties of the Company pursuant to this Agreement;
(iii) the term “Company”
will thereafter be deemed to refer to such Principal Party, it being specifically intended that the provisions of Section 11 hereof
shall apply only to such Principal Party following the first occurrence of a Flip-Over Event;
(iv) such Principal Party will
take such steps (including, but not limited to, the reservation of a sufficient number of shares of its Common Stock) in connection with
the consummation of any such transaction as may be necessary to ensure that the provisions hereof shall be applicable, as nearly as reasonably
may be possible, to its shares of Common Stock thereafter deliverable upon the exercise of the Rights; and
(v) the provisions of Section
11(a)(ii) hereof shall be of no further effect following the first occurrence of any Flip-Over Event, and the Rights that have not
theretofore been exercised shall thereafter become exercisable in the manner described in this Section 13.
(b) “Principal
Party” shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first sentence of Section 13(a) hereof, (A) the Person (including the Company as successor
thereto or as the surviving entity) that is the issuer of any securities or other equity interests into which shares of Common Stock of
the Company are converted in such merger or consolidation, or, if there is more than one such issuer, the issuer of Common Stock that
has the highest aggregate Current Market Price; and (B) if no securities or other equity interests are so issued, (1) the Person that
is the other constituent party to such merger, if such Person survives the merger, or, if there is more than one such Person, the Person,
the Common Stock of which has the highest aggregate Current Market Price or (2) if the Person that is the other party to the merger does
not survive the merger, the Person that does survive the merger (including the Company if it survives) or (3) the Person resulting from
the consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of Section 13(a) hereof, the Person that is the party receiving the largest portion
of the assets or earning power transferred pursuant to such transaction or transactions, or, if each Person that is a party to such transaction
or transactions receives the same portion of the assets or earning power transferred pursuant to such transaction or transactions or if
the Person receiving the largest portion of the assets or earning power cannot be determined, whichever Person that has received assets
or earning power pursuant to such transaction or transactions, the Common Stock of which has the highest aggregate Current Market Price;
provided, however, that in any such case: (1) if the Common Stock of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so registered, “Principal Party” will refer to such
other Person; (2) if the Common Stock of such Person is not and has not been so registered and such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or more of which are and have been so registered, “Principal Party”
will refer to whichever of such Persons is the issuer of the Common Stock having the highest aggregate market value; and (3) if the Common
Stock of such Person is not and has not been so registered and such Person is owned, directly or indirectly, by a joint venture formed
by two or more Persons that are not owned, directly or indirectly, by the same Person, the rules set forth in (1) and (2) above will apply
to each of the chains of ownership having an interest in such joint venture as if such party were a Subsidiary of both or all of such
joint venturers, and the Principal Parties in each such chain shall bear the obligations set forth in this Section 13 in the same
ratio as their direct or indirect interests in such Person bear to the total of such interests.
(c) The Company may not consummate
any Flip-Over Event unless the Principal Party has a sufficient number of authorized shares of its Common Stock that have not been issued
(or reserved for issuance) or that are held in its treasury to permit the exercise in full of the Rights in accordance with this Section
13 and unless prior thereto the Company and such Principal Party have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13 and further providing that, as soon as practicable
after the date of any such Flip-Over Event, the Principal Party, at its own expense, shall:
(i) if the Principal Party is
required to file a registration statement pursuant to the Securities Act with respect to the Rights and the securities purchasable upon
exercise of the Rights, (A) prepare and file such registration statement; (B) use its best efforts to cause such registration statement
to become effective as soon as practicable after such filing and remain effective (and to include a prospectus at all times complying
with the requirements of the Securities Act) until the Expiration Date; and (C) take such action as may be required to ensure that any
acquisition of such securities that may be acquired upon exercise of the Rights complies with any applicable state security or “blue
sky” laws as soon as practicable following the execution of such agreement;
(ii) deliver to holders of the
Rights historical financial statements for the Principal Party and each of its Affiliates that comply in all respects with the requirements
for registration on Form 10 (or any successor form) under the Exchange Act;
(iii) use its best efforts to
obtain any and all necessary regulatory approvals as may be required with respect to the securities that may be acquired upon exercise
of the Rights; and
(iv) use its best efforts, if
such Common Stock of the Principal Party is listed or admitted to trading on NASDAQ, the NYSE or on another national securities exchange,
to list or admit to trading (or continue the listing of) the Rights and the securities that may be acquired upon exercise of the Rights
on NASDAQ, the NYSE or on such securities exchange, or if the securities of the Principal Party that may be acquired upon exercise of
the Rights are not listed or admitted to trading on NASDAQ, the NYSE or a national securities exchange, to cause the Rights and the securities
that may be acquired upon exercise of the Rights to be authorized for quotation on any other system then in use; and
(v) obtain waivers of any rights
of first refusal or preemptive rights in respect of the Common Stock of the Principal Party subject to purchase upon exercise of outstanding
Rights.
(d) In case the Principal
Party that is to be a party to a transaction referred to in this Section 13 has at the time of such transaction, or immediately
following such transaction has a provision in any of its authorized securities or in its certificate or articles of incorporation or by-laws
or other instrument governing its affairs, or any other agreements or arrangements, which provision would have the effect of (i) causing
such Principal Party to issue, in connection with, or as a consequence of, the consummation of a transaction referred to in this Section
13, shares of Common Stock of such Principal Party at less than the then Current Market Price or securities exercisable for, or convertible
into, Common Stock of such Principal Party at less than such then Current Market Price (other than to holders of Rights pursuant to this
Section 13); (ii) providing for any special payment, tax or similar provisions in connection with the issuance of the Common Stock
of such Principal Party pursuant to the provisions of this Section 13; or (iii) otherwise eliminating or substantially diminishing
the benefits intended to be afforded by the Rights in connection with, or as a consequence of, the consummation of a transaction referred
to in this Section 13, then, in each such case, the Company may not consummate any such transaction unless prior thereto the Company
and such Principal Party have executed and delivered to the Rights Agent a supplemental agreement providing that the provision in question
of such Principal Party has been cancelled, waived or amended, or that the authorized securities have been redeemed, so that the applicable
provision will have no effect in connection with, or as a consequence of, the consummation of such transaction.
(e) The provisions of this
Section 13 shall apply similarly to successive mergers or consolidations or sales or other transfers. In the event that a Flip-Over
Event occurs after the occurrence of a Flip-In Event, the Rights that have not theretofore been exercised shall thereafter become exercisable
in the manner described in Section 13(a) hereof.
(f) Notwithstanding anything
contained herein to the contrary, in the event of any merger or other acquisition transaction involving the Company pursuant to a merger
or other acquisition agreement between the Company and any Person (or one or more of such Person’s Affiliates or Associates) which agreement
has been approved by the Board prior to any Person becoming an Acquiring Person, this Agreement and the rights of holders of Rights hereunder
shall be terminated in accordance with Section 7(a).
Section 14. Fractional
Rights; Fractional Shares; Waiver.
(a) The Company is not required
to issue fractions of Rights except prior to the Distribution Date as provided in Section 11(o) hereof, or to distribute Rights
Certificates that evidence fractional Rights. In lieu of such fractional Rights, the Company shall pay to the Persons to which such fractional
Rights would otherwise be issuable an amount in cash equal to such fraction of the market value of a whole Right. For purposes of this
Section 14(a), the market value of a whole Right is the Closing Price of the Rights for the Trading Day immediately prior to the
date that such fractional Rights would have been otherwise issuable.
(b) The Company is not required
to issue fractions of shares of Preferred Stock (other than fractions which are integral multiples of one one-thousandth of a share of
Preferred Stock) upon exercise of the Rights or to distribute certificates which evidence fractional shares of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth of a share of Preferred Stock). In lieu of fractional shares of Preferred
Stock that are not integral multiples of one one-thousandth of a share of Preferred Stock, the Company may pay to the registered holders
of Rights Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current
market value of one one-thousandth of a share of Preferred Stock. For purposes of this Section 14(b), the current market value
of one one-thousandth of a share of Preferred Stock is one one-thousandth of the Closing Price of a share of Preferred Stock for the Trading
Day immediately prior to the date of such exercise.
(c) Following the occurrence
of one of the events specified in Section 11 hereof giving rise to the right to receive Common Stock, Common Stock Equivalents
or other securities upon the exercise of a Right, the Company will not be required to issue fractions of shares of Common Stock, Common
Stock Equivalents or other securities upon exercise of the Rights or to distribute certificates which evidence fractional shares of Common
Stock, Common Stock Equivalents or other securities. In lieu of fractional shares of Common Stock, Common Stock Equivalents or other securities,
the Company may pay to the registered holders of Rights Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of one share of Common Stock, Common Stock Equivalents or other securities.
For purposes of this Section 14(c), the current market value of one share of Common Stock is the Closing Price of one share of
Common Stock for the Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right,
by the acceptance of the Right, expressly waives such holder’s right to receive any fractional Rights or any fractional shares upon exercise
of a Right, except as permitted by this Section 14.
(e) Whenever a payment for
fractional Rights or fractional shares is to be made by the Rights Agent under this Agreement, the Company shall (i) promptly prepare
and deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related to such payments and the prices and
formulas utilized in calculating such payments; and (ii) provide sufficient monies to the Rights Agent in the form of fully collected
funds to make such payments. The Rights Agent may rely upon such a certificate and has no duty with respect to, and will not be deemed
to have knowledge of, any payment for fractional Rights or fractional shares under any Section of this Agreement relating to the payment
of fractional Rights or fractional shares unless and until the Rights Agent has received such a certificate and sufficient monies.
Section 15. Rights
of Action.
All rights of action in respect
of this Agreement, other than the rights of action vested in the Rights Agent hereunder, are vested in the respective registered holders
of the Rights Certificates (and, prior to the Distribution Date, the registered holders of shares of the Common Stock); and any registered
holder of a Rights Certificate (or, prior to the Distribution Date, any registered holder of shares of the Common Stock), without the
consent of the Rights Agent or of the holder of any other Rights Certificate (or, prior to the Distribution Date, any registered holder
of shares of the Common Stock), may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company or any other Person to enforce, or otherwise act in respect of, such holder’s right
to exercise the Rights evidenced by such Rights Certificate in the manner provided in such Rights Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement by the Company and shall be entitled to specific performance
of the obligations hereunder, and injunctive relief against actual or threatened violations by the Company of the obligations hereunder
of any Person (including, without limitation, the Company) subject to this Agreement.
Section 16. Agreement
of Rights Holders.
Every holder of a Right, by
accepting such Right, consents and agrees with the Company and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution
Date, the Rights shall be evidenced by the balances indicated in the Book Entry account system of the transfer agent for the Common Stock
registered in the names of the holders of Common Stock (which Common Stock shall also be deemed to represent certificates for Rights)
or, in the case of certificated shares, the certificates for the Common Stock registered in the names of the holders of the Common Stock
(which certificates for shares of Common Stock also constitute certificates for Rights) and each Right is transferable only in connection
with the transfer of the Common Stock;
(b) after the Distribution
Date, the Rights Certificates shall be transferable only on the registry books of the Rights Agent if surrendered at the office of the
Rights Agent designated for such purposes, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate forms
and certificates properly completed and duly executed;
(c) subject to Section
6(a) and Section 7(e) hereof, the Company and the Rights Agent may deem and treat the Person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated balance indicated in the Book Entry account system of the transfer agent for the Common
Stock, or in the case of certificated shares, by the associated Common Stock certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Rights Certificates or the associated
balance indicated in the Book Entry account system of the transfer agent for the Common Stock, or in the case of certificated shares,
by the associated Common Stock certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last sentence of Section 7(e) hereof, shall be affected by any notice
to the contrary; and
(d) notwithstanding anything
in this Agreement to the contrary, neither the Company nor the Rights Agent has any liability to any holder of a Right or any other Person
as a result of the inability of the Company or the Rights Agent to perform any of its or their obligations under this Agreement by reason
of any preliminary or permanent injunction or other order, decree, judgment or ruling (whether interlocutory or final) issued by a court
of competent jurisdiction or by a governmental, regulatory, self-regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company shall use its commercially reasonable efforts to have any such injunction,
order, decree, judgment or ruling lifted or otherwise overturned as promptly as practicable.
Section 17. Rights
Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any
Rights Certificate is entitled to vote, receive dividends or be deemed for any purpose the holder of the shares of Preferred Stock or
any other securities of the Company that may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the holder of any Rights Certificate, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, except as provided in Section 26 hereof, to receive
notice of meetings or other actions affecting stockholders, or to receive dividends or subscription rights, or otherwise, until the Right
evidenced by such Rights Certificate have been exercised in accordance with the provisions hereof.
Section 18. Duties
of Rights Agent.
The Rights Agent undertakes
to perform its duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and
the holders of Rights Certificates, or, prior to the Distribution Date, Common Stock, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult
with legal counsel selected by it (who may be legal counsel for the Rights Agent or the Company or an employee of the Rights Agent), and
the advice or opinion of such counsel shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent
will have no liability for or in respect of, any action taken, suffered or omitted to be taken by it in the absence of bad faith in accordance
with such advice or opinion.
(b) Whenever in the performance
of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including the identity
of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, suffering
or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate signed by the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent shall incur
no liability for or in respect of any action taken, suffered or omitted to be taken by it, in the absence of bad faith, under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall
be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith, or willful misconduct (as determined
by a court of competent jurisdiction in a final non-appealable judgment). Anything to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of
the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent will
not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates
or be required to verify the same (except as to its countersignature thereof), but all such statements and recitals are deemed to have
been made by the Company only.
(e) The Rights Agent shall
not have any liability for nor be under any responsibility in respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution and delivery hereof by the Rights Agent) or for the validity or execution of any Rights Certificate (except
its countersignature thereon); nor will it be liable or responsible for any breach by the Company of any covenant or failure by the Company
to satisfy any condition contained in this Agreement or in any Rights Certificate; nor will it be liable or responsible for any change
in the exercisability of the Rights (including, but not limited to, the Rights becoming null and void pursuant to Section 7(e)
hereof) or any change or adjustment in the terms of the Rights including, but not limited, to any adjustment required under the provisions
of Sections 11, 13, 23 or 24 hereof or for the manner, method or amount of any such change or adjustment or
the ascertaining of the existence of facts that would require any such change or adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after receipt by the Rights Agent of the certificate describing any such adjustment contemplated by Section
12 hereof, upon which the Rights Agent may rely); nor will it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of the Common Stock, the Preferred Stock or any other securities to be issued pursuant
to this Agreement or any Rights Certificate or as to whether any shares of Common Stock, Preferred Stock or any other securities will,
when so issued, be validly authorized and issued, fully paid and non-assessable.
(f) The Company shall perform,
execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and
assurances as may reasonably be required by the Rights Agent for the performance by the Rights Agent of its duties under this Agreement.
(g) The Rights Agent is hereby
authorized and directed to accept written instructions with respect to the performance of its duties hereunder and certificates delivered
pursuant to any provision hereof from the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and such advice or instruction shall be full authorization and protection
to the Rights Agent and the Rights Agent shall have no duty to independently verify the accuracy or completeness of such instructions
and shall incur no liability for or in respect of any action taken or suffered or omitted to be taken by it by it, in the absence of bad
faith, in accordance with advice or instructions of any such officer or for any delay in acting while waiting for those instructions.
Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing
any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on and/or after which such action shall
be taken or such omission shall be effective. The Rights Agent shall be fully authorized and protected in relying upon the most recent
verbal or written instructions received from any such officer, and shall not be liable for any action taken, suffered or omitted to be
taken by the Rights Agent in the absence of bad faith in accordance with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five (5) Business Days after the date any officer of the Company actually
receives such application unless any such officer shall have consented in writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such
application specifying the action to be taken, suffered or omitted.
(h) The Rights Agent and any
stockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money
to the Company or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for any other Person.
(i) The Rights Agent may execute
and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself (through its directors, officers
and employees) or by or through its attorneys or agents, and the Rights Agent shall not be liable for any act, default, neglect or misconduct
of any such attorneys or agents or for any loss to the Company, any holder of Rights or any other Person resulting from any such act,
default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof.
(j) No provision of this Agreement
shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if there are reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(k) If, with respect to any
Rights Certificate surrendered to the Rights Agent for exercise or transfer, either (i) the certificate attached to the form of assignment
or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 and/or
2 thereof, or (ii) any other actual or suspected irregularity exists, the Rights Agent shall not take any further action with respect
to such requested exercise or transfer without first consulting with the Company.
Section 19. Concerning
the Rights Agent.
(a) The Company agrees to
pay to the Rights Agent on demand compensation as agreed in writing between the Company and the Rights Agent for all services rendered
by it hereunder and from time to time, on demand of the Rights Agent, to reimburse the Rights Agent for all of its reasonable and documented
expenses incurred in the preparation, delivery, amendment, administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent, its employees, officers or directors for, and to hold
it harmless against, any loss, liability, damage, demand, judgment, fine, penalty, claim, settlement, cost or expense (including the reasonable
fees and expenses of legal counsel), for any action taken, suffered or omitted to be taken by the Rights Agent pursuant to this Agreement
or in connection with the acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable
and documented costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or enforcing
its rights hereunder; provided that the Company shall not be required to indemnify the Rights Agent, its employees, officers or directors
for any such loss, liability, damage, demand, judgment, fine, penalty, claim, settlement cost or expense to the extent caused by the Right
Agent’s gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable
judgment).
(b) The Rights Agent shall
be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it
in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance
upon any Rights Certificate or Book Entry for Common Stock or other securities of the Company, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statements or other paper or document believed by
it to be genuine and to be signed, executed and shall not be obligated to verify the accuracy or completeness of such instrument, power
of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statements or other paper or document and, where
necessary, guaranteed, verified or acknowledged, by the proper Person or Persons. The Rights Agent shall not be deemed to have knowledge
of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur
no liability for failing to take action in connection therewith unless and until it has received such notice in writing.
(c) Notwithstanding anything
in this Agreement to the contrary, in no case shall the Company be liable with respect to any action, proceeding, suit or claim against
the Rights Agent unless the Rights Agent shall have notified the Company in accordance with Section 27 hereof of the assertion
of such action, proceeding, suit or claim against the Rights Agent, promptly after the Rights Agent shall have notice of such assertion
of an action, proceeding, suit or claim or have been served with the summons or other first legal process giving information as to the
nature and basis of the action, proceeding, suit or claim; provided that the failure to provide such notice promptly shall not affect
the rights of the Rights Agent hereunder except to the extent that such failure actually prejudices the Company. The Company shall be
entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim, and, if the Company so elects,
the Company shall assume the defense of any such action, proceeding, suit or claim. In the event that the Company assumes such defense,
the Company shall not thereafter be liable for the fees and expenses of any counsel retained by the Rights Agent, so long as the Company
shall retain counsel satisfactory to the Rights Agent, in the exercise of its reasonable judgment, to defend such action, proceeding,
suit or claim, and provided that the Rights Agent does not have defenses that are adverse to or different from any defenses of the Company.
The Rights Agent agrees not to settle any litigation in connection with any action, proceeding, suit or claim with respect to which it
may seek indemnification from the Company without the prior written consent of the Company, which shall not be unreasonably withheld.
(d)
The provisions of this Section 19 and Section 18 shall survive the termination of this Agreement, the resignation, replacement
or removal of the Rights Agent and the exercise, termination and the expiration of the Rights. Notwithstanding anything in this Agreement
to the contrary, in no event shall the Rights Agent be liable for special, punitive, incidental, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of the action; and the Company agrees to indemnify the Rights Agent and to hold it harmless
to the fullest extent permitted by law against any loss, liability or expense incurred as a result of claims for special, punitive, incidental,
indirect or consequential loss or damages of any kind whatsoever provided in each case that such claims are not based on the gross negligence,
bad faith or willful misconduct of the Rights Agent (each as determined by a final judgment of a court of competent jurisdiction). Any
liability of the Rights Agent under this Agreement shall be limited to the amount of annual fees paid by the Company to the Rights Agent.
Section 20. Merger
or Consolidation or Change of Name of Rights Agent.
(a) Any Person into which
the Rights Agent or any successor Rights Agent is merged or with which the Rights Agent or any successor Rights Agent is consolidated,
or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent is a party, or any Person
succeeding to the stockholder services business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; but
only if such Person would be eligible for appointment as a successor Rights Agent under the provisions of Section 21 hereof.
The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of transfer agent activities shall be
deemed a merger or consolidation for purposes of this Section 20. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Rights Certificates have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights Agent and deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates have not been countersigned, any successor Rights Agent may countersign such Rights Certificates
either in the name of the predecessor or in the name of the successor Rights Agent; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
(b) In case at any time the
name of the Rights Agent shall be changed and at such time any of the Rights Certificates shall have been countersigned but not delivered,
the Rights Agent may adopt the countersignature under its prior name and deliver Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been countersigned, the Rights Agent may countersign such Rights Certificates
either in its prior name or in its changed name; and in all such cases such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
Section 21. Change
of Rights Agent.
The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement upon at least thirty (30) days’ notice in writing to the
Company, and to each transfer agent of the Preferred Stock and the Common Stock, by registered or certified mail, in which case the Company
will give or cause to be given written notice to the registered holders of the Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon at least thirty (30) days’ notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the Common Stock and Preferred Stock, by registered or certified
mail, and, if such removal occurs after the Distribution Date, to the holders of the Rights Certificates by first-class mail. If the Rights
Agent resigns or is removed or otherwise becomes incapable of acting, the Company shall appoint a successor to the Rights Agent. If the
Company fails to make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Rights Certificate (such
holder shall, with such notice, submit its Rights Certificate for inspection by the Company), then the incumbent Rights Agent or any registered
holder of any Rights Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be (a) a Person organized and doing business under the laws of
the United States or any State thereof, in good standing, which is authorized under such laws to exercise corporate trust, stock transfer
or stockholder services powers and which at the time of its appointment as Rights Agent has, or with its parent has, a combined capital
and surplus of at least $50,000,000 or (b) an affiliate of a Person described in clause (a) of this sentence. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent
under this Agreement without further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary
for the purpose in each case at the sole expense of the Company. Not later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights Agent and each transfer agent of the Common Stock and the Preferred Stock,
and, if such appointment occurs after the Distribution Date, mail a notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this Section 21, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance
of New Rights Certificates.
Notwithstanding any of the
provisions of this Agreement or the Rights Certificates to the contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by the Board to reflect any adjustment or change made in accordance with the provisions
of this Agreement in the Exercise Price or the number or kind or class of shares or other securities or property that may be acquired
under the Rights Certificates. In addition, in connection with the issuance or sale of shares of Common Stock following the Distribution
Date (other than upon exercise of a Right) and prior to the redemption or the Expiration Date, the Company (a) shall, with respect to
shares of Common Stock so issued or sold pursuant to the exercise of stock options or under any employee plan or arrangement, or upon
the exercise, conversion or exchange of securities hereinafter issued by the Company, and (b) may, in any other case, if deemed necessary
or appropriate by the Board, issue Rights Certificates representing the appropriate number of Rights in connection with such issuance
or sale; provided, however, that (i) no such Rights Certificate may be issued if, and to the extent that, the Company has
been advised by counsel that such issuance would create a significant risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued, and (ii) no such Rights Certificate may be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) The Board may, within
its sole discretion, at any time before any Person becomes an Acquiring Person (the “Redemption Period”) cause
the Company to redeem all, but not less than all, of the then outstanding Rights at a redemption price of $0.0001 per Right, as such amount
may be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the
date hereof (such redemption price, as adjusted, the “Redemption Price”). Notwithstanding anything contained
in this Agreement to the contrary, the Rights will not be exercisable after the first occurrence of a Flip-In Event or Flip-Over Event
until such time as the Company’s right of redemption hereunder has expired. The redemption of the Rights by the Board pursuant to this
paragraph (a) may be made effective at such time, on such basis and with such conditions as the Board may establish, in its sole discretion.
The Company may, at its option, pay the Redemption Price in cash, shares of Common Stock based on the Current Market Price or any other
form of consideration deemed appropriate by the Board.
(b) Immediately upon the action
of the Board ordering the redemption of the Rights pursuant to paragraph (a) of this Section 23 (or such later time as the Board
may establish for the effectiveness of such redemption), and without any further action and without any notice, the right to exercise
the Rights will terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price for each Right
held. The Company shall promptly give (i) written notice to the Rights Agent of any such redemption; and (ii) public notice of any such
redemption; provided, however, that the failure to give, or any defect in, any such notice will not affect the validity
of such redemption. Within ten (10) days after such action of the Board ordering the redemption of the Rights, the Company shall mail
a notice of redemption to all the holders of the then outstanding Rights at their last addresses as they appear upon the registry books
of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Stock. Any notice that
is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption
will state the method by which the payment of the Redemption Price shall be made. Neither the Company nor any of its Related Persons may
redeem, acquire or purchase for value any Rights at any time in any manner other than that specifically set forth in this Section 23
or in Section 24 hereof, or other than in connection with the purchase of shares of Common Stock or the conversion or redemption
of shares of Common Stock in accordance with the applicable provisions of the Certificate of Incorporation prior to the Distribution Date.
(c) (i)
In the event the Company receives a Qualifying Offer and the Board has not redeemed the outstanding Rights or exempted such Qualifying
Offer from the terms of this Agreement or called a special meeting of stockholders for the purpose of voting on whether or not to exempt
such Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is ninety (90) days following
the commencement of such Qualifying Offer within the meaning of Rule 14d-2(a) under the Exchange Act (the “Board Evaluation
Period”), the holders of record (or their duly authorized proxy) of twenty percent (20%) or more of the shares of Common
Stock of the Company then outstanding (excluding shares of Common Stock that are Beneficially Owned by the Person making the Qualifying
Offer) (the “Requisite Percentage”) may submit to the Board, not later than ninety (90) days following the Board
Evaluation Period a written demand complying with the terms of this Section 23(c) (the “Special Meeting Demand”)
directing the Board to submit to a vote of stockholders at a special meeting of the stockholders of the Company (a “Special
Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying
Offer Resolution”). Any Special Meeting Demand must be (A) delivered to the Secretary at the principal executive offices
of the Company; and (B) signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized
agent of the Demanding Stockholders.
(ii) After receipt of Special
Meeting Demands in proper form and in accordance with this Section 23(c) from Demanding Stockholders holding the Requisite Percentage,
the Board shall take such actions necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders
at a Special Meeting to be convened within ninety (90) days following the last day of the Board Evaluation Period (the “Special
Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials
of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special Meeting Period
and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the Special Meeting Period may
be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately
submitted to a vote at the same meeting as the Definitive Acquisition Agreement. Subject to the requirements of applicable law, the Board
may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying
Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties.
(iii) In the event that no Person
has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A)
the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting
Date”); or (B) if, at the Special Meeting at which a quorum is present, a majority of the shares of Common Stock outstanding
as of the record date for the Special Meeting selected by the Board (excluding shares of Common Stock Beneficially Owned by the Person
making the Qualified Offer and such Person’s Related Persons) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying
Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying
Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of
the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for
the Special Meeting, as the case may be (the “Exemption Date”). Notwithstanding anything herein to the contrary,
no action or vote by stockholders not in compliance with the provisions of this Section 23(c) shall serve to exempt any offer from
the terms of this Agreement. Immediately upon the Close of Business on the Exemption Date, and without any further action and without
any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this
Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Related Persons) to become an
Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.
Section 24. Exchange.
(a) The Board may, at its
option, at any time after any Person becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become null and void pursuant to the provisions of Section 7(e) hereof) for shares of
Common Stock at an exchange ratio of two shares of Common Stock per each outstanding Right, as appropriately adjusted to reflect any stock
split, reverse stock split, stock dividend or similar transaction occurring after the date hereof (such exchange ratio being hereinafter
referred to as the “Exchange Ratio”). Notwithstanding the foregoing, the Board is not empowered to effect such
exchange at any time after any Acquiring Person, together with all of its Related Persons, becomes the Beneficial Owner of 50% or more
of the shares of Common Stock then outstanding. The exchange of the Rights by the Board may be made effective at such time, on such basis
and with such conditions as the Board in its sole discretion may establish. From and after the occurrence of a Flip-Over Event, any Rights
that theretofore have not been exchanged pursuant to this Section 24(a) will thereafter be exercisable only in accordance with
Section 13 hereof and may not be exchanged pursuant to this Section 24(a).
(b) Immediately upon the action
of the Board ordering the exchange of any Rights pursuant to paragraph (a) of this Section 24 and without any further action or
notice, the right to exercise such Rights will terminate and the only right thereafter of a holder of such Rights shall be to receive
a number of shares of Common Stock equal to the number of such Rights held by such holder multiplied by the Exchange Ratio; provided,
however, that in connection with any exchange effected pursuant to this Section 24(b), no holder of Rights shall be entitled to
receive Common Stock (or other shares of capital stock of the Company) that would result in such holder, together with such holder’s Affiliates
and Associates, becoming the Beneficial Owner of more than 4.99% of the then-outstanding Common Stock. If a holder would, but for the
immediately preceding sentence, be entitled to receive Excess Shares, in lieu of receiving such Excess Shares and to the extent permitted
by law or orders applicable to the Company, such holder will only be entitled to receive an amount in cash or, at the election of the
Company, a note or other evidence of indebtedness maturing within nine months with a principal amount, equal to the current per share
Current Market Price of a share of Common Stock at the Close of Business on the Trading Day following the date the Board effects the forgoing
exchange multiplied by the number of Excess Shares that would otherwise have been issuable to such holder. The exchange of the Rights
by the Board may be made effective at such time, on such basis and with such conditions as the Board in its sole discretion may establish.
The Company shall promptly give (i) written notice to the Rights Agent of any such exchange; and (ii) public notice of any such exchange;
provided, however, that the failure to give, or any defect in, such notice will not affect the validity of such exchange.
The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice that is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange will state the method by which the exchange of the shares of Common Stock
for Rights shall be effected and, in the event of any partial exchange, the number of Rights that shall be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights that have become null and void pursuant to the provisions
of Section 7(e) hereof) held by each holder of Rights.
(c) The Company may at its
option substitute, and, in the event that there shall not be sufficient shares of Common Stock issued but not outstanding or authorized
but unissued to permit an exchange of Rights for Common Stock as contemplated in accordance with this Section 24, the Company shall
substitute to the extent of such insufficiency, for each share of Common Stock that would otherwise be issuable upon exchange of a Right,
a number of shares of Preferred Stock or fraction thereof (or Equivalent Preferred Stock, as such term is defined in Section 11(b))
such that the Current Market Price of one share of Preferred Stock (or Equivalent Preferred Share) multiplied by such number or fraction
is equal to the Current Market Price of one share of Common Stock as of the date of such exchange.
(d) Upon declaring an exchange
pursuant to this Section 24, or as promptly as reasonably practicable thereafter, the Company may implement such procedures as
it deems appropriate, in its sole discretion, for the purpose of ensuring that the Common Stock (or such other consideration) issuable
upon an exchange pursuant to this Section 24 is not received by holders of Rights that have become null and void pursuant to Section
7(e) hereof. Before effecting an exchange pursuant to this Section 24, the Board may direct the Company to enter into a Trust
Agreement in such form and with such terms as the Board shall then approve (the “Trust Agreement”). If the Board
so directs, the Company shall enter into the Trust Agreement and the Company shall issue to the trust created by the Trust Agreement (the
“Trust”) all or a portion (as designated by the Board) of the shares of Common Stock and other securities, if
any, distributable pursuant to the Exchange, and all stockholders entitled to distribution of such shares or other securities (and any
dividends or distributions made thereon after the date on which such shares or other securities are deposited in the Trust) shall be entitled
to receive a distribution of such shares or other securities (and any dividends or distributions made thereon after the date on which
such shares or other securities are deposited in the Trust) only from the Trust and solely upon compliance with all relevant terms and
provisions of the Trust Agreement. Prior to effecting an exchange and registering shares of Common Stock (or other such securities) in
any Person’s name, including any nominee or transferee of a Person, the Company may require (or cause the trustee of the Trust to require),
as a condition thereof, that any holder of Rights provide evidence, including, without limitation, the identity of the Beneficial Owners
thereof and their Related Persons (or former Beneficial Owners thereof and their Related Persons) as the Company reasonably requests in
order to determine if such Rights are null and void. If any Person fails to comply with such request, the Company shall be entitled conclusively
to deem the Rights formerly held by such Person to be null and void pursuant to Section 7(e) hereof and not transferable or exercisable
or exchangeable in connection herewith. Any shares of Common Stock or other securities issued at the direction of the Board in connection
herewith shall be validly issued, fully paid and nonassessable shares of Common Stock or of such other securities (as the case may be),
and the Company shall be deemed to have received as consideration for such issuance a benefit having a value that is at least equal to
the aggregate par value of the shares so issued.
Section 25. Process
to Seek Exemption
Any Person who desires to
effect any acquisition of Common Stock that might, if consummated, result in such Person beneficially owning 4.99% or more of the then-outstanding
Common Stock (or, in the case of a Grandfathered Person, additional shares of Common Stock) (a “Requesting Person”)
may request that the Board grant an exemption with respect to such acquisition under this Agreement so that such Person would be deemed
to be an “Exempt Person” for purposes of this Agreement (an “Exemption Request”).
An Exemption Request shall be in proper form and shall be delivered by registered mail, return receipt requested, to the Secretary of
the Company at the principal executive office of the Company. The Exemption Request shall be deemed made upon receipt by the Secretary
of the Company. To be in proper form, an Exemption Request shall set forth (i) the name and address of the Requesting Person, (ii) the
number and percentage of shares of Common Stock then Beneficially Owned by the Requesting Person, together with all Affiliates and Associates
of the Requesting Person, and (iii) a reasonably detailed description of the transaction or transactions by which the Requesting Person
would propose to acquire Beneficial Ownership of Common Stock aggregating 4.99% or more of the then-outstanding Common Stock and the maximum
number and percentage of shares of Common Stock that the Requesting Person proposes to acquire. The Board shall endeavor to respond to
an Exemption Request within twenty (20) Business Days after receipt of such Exemption Request; provided, that the failure of the
Board to make a determination within such period shall be deemed to constitute the denial by the Board of the Exemption Request. The Requesting
Person shall respond promptly to reasonable and appropriate requests for additional information from the Company or the Board and its
advisors to assist the Board in making its determination. The Board shall only grant an exemption in response to an Exemption Request
if it receives, at the Board’s request, a report from the Company’s advisors to the effect that the acquisition of Beneficial Ownership
of Common Stock by the Requesting Person does not create a significant risk of material adverse tax consequences to the Company or the
Board otherwise determines in its sole discretion that the exemption is in the best interests of the Company. Any exemption granted hereunder
may be granted in whole or in part, and may be subject to limitations or conditions (including a requirement that the Requesting Person
agree that it will not acquire Beneficial Ownership of shares of Common Stock in excess of the maximum number and percentage of shares
approved by the Board), in each case as and to the extent the Board shall determine necessary or desirable to provide for the protection
of the Company’s NOLs. Any Exemption Request may be submitted on a confidential basis and, except to the extent required by applicable
law, the Company shall maintain the confidentiality of such Exemption Request and determination of the Board with respect thereto, unless
the information contained in the Exemption Request or the determination of the Board with respect thereto otherwise becomes publicly available.
The Exemption Request shall be considered and evaluated by the Independent Directors who are also independent of the Requesting Person
and disinterested with respect to the Exemption Request, and the action of a majority of such Independent Directors shall be deemed to
be the determination of the Board for purposes of such Exemption Request.
Section 26. Notice
of Certain Events.
(a) In case the Company proposes,
at any time after the earlier of the Distribution Date or the Stock Acquisition Date, (i) to pay any dividend payable in stock of any
class or series to the holders of Preferred Stock or to make any other distribution to the holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of the Company); (ii) to offer to the holders of Preferred Stock rights or
warrants to subscribe for or to purchase any additional shares of Preferred Stock or shares of stock of any class or any other securities,
rights or options; (iii) to effect any reclassification of Preferred Stock (other than a reclassification involving only the subdivision
of outstanding shares of Preferred Stock); (iv) to effect any consolidation or merger into or with any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(n) hereof) or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any
of its Subsidiaries in one or more transactions each of which complies with Section 11(n) hereof); or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company shall give to each registered holder of a Rights Certificate,
to the extent feasible, and to the Rights Agent in accordance with Section 27 hereof, a written notice of such proposed action,
which shall specify the record date for the purposes of such stock dividend, distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer, liquidation, dissolution or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred Stock if any such date is to be fixed, and such notice shall be so given
in the case of any action covered by clause (i) or (ii) above at least ten (10) days prior to the record date for determining holders
of the shares of Preferred Stock for purposes of such action and, in the case of any such other action, at least ten (10) days prior to
the date of the taking of such proposed action or the date of participation therein by the holders of the shares of Preferred Stock, whichever
is earlier; provided, however, that no such action shall be taken pursuant to this Section 26(a) that will or would
conflict with any provision of the Certificate of Incorporation; provided, further, that no such notice is required pursuant
to this Section 26 if any Subsidiary of the Company effects a consolidation or merger with or into, or effects a sale or other
transfer of assets or earning power to, any other Subsidiary of the Company.
(b) In case any Flip-In Event
occurs, (i) the Company shall, as soon as practicable thereafter, give to each registered holder of a Rights Certificate, to the extent
feasible, and to the Rights Agent in accordance with Section 27 hereof, a written notice of the occurrence of such event, which
notice shall describe such event and the consequences of such event to holders of Rights under Section 11(a)(ii) hereof; and (ii)
all references in paragraph (a) of this Section 26 to Preferred Stock shall be deemed thereafter to refer to Common Stock and/or,
if appropriate, to any other securities that may be acquired upon exercise of a Right.
(c) In case any Flip-Over
Event occurs, then the Company shall, as soon as practicable thereafter, give to each registered holder of a Rights Certificate, to the
extent feasible, and to the Rights Agent in accordance with Section 27 hereof, a written notice of the occurrence of such event,
which notice shall describe such event and the consequences of such event to holders of Rights under Section 13(a) hereof.
Section 27. Notices.
Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or by the holder of any Rights Certificate to or on the Company shall be sufficiently
given or made if sent in writing by first-class or express United States mail, FedEx or UPS, postage prepaid or overnight delivery service
and properly addressed (until another address is filed in writing by the Rights Agent with the Company) as follows:
If to the Company, at its address at:
Dominari Holdings Inc.
725 5th Avenue, 23rd
Floor
New York, New York 10022
Attention: Anthony Hayes
Subject to the provisions of Section 21
hereof, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or made if sent in writing by first-class or express United States mail, FedEx or
UPS, postage prepaid or overnight delivery service and properly addressed (until another address is filed in writing with the Rights Agent)
as follows:
Continental Stock Transfer & Trust
Company
1 State Street, 30th Floor
New York, New York 10004
Attention: Steven Vacante
Notices or demands authorized
by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of shares of Common Stock) shall be sufficiently given or made if sent in writing by first-class or express
United States mail, FedEx or UPS, postage prepaid or overnight delivery service and properly addressed, to such holder at the address
of such holder as shown on the registry books of the Company.
Section 28. Supplements
and Amendments.
Except as otherwise provided
in this Section 28, the Company, by action of the Board, may from time to time and in its sole and absolute discretion, and the
Rights Agent shall if the Company so directs, supplement or amend this Agreement in any respect without the approval of any holders of
Rights, including, without limitation, in order to (a) cure any ambiguity; (b) correct or supplement any provision contained herein that
may be defective or inconsistent with any other provisions herein; (c) shorten or lengthen any time period hereunder; (d) otherwise change,
amend, or supplement any provisions hereunder in any manner that the Company may deem necessary or desirable; provided, however,
that from and after any Person becomes an Acquiring Person, this Agreement may not be supplemented or amended in any manner that
would (a) adversely affect the interests of the holders of Rights (other than Rights that have become null and void pursuant to Section
7(e) hereof) as such or (b) cause this Agreement to become amendable other than in accordance with this Section 28. Without limiting
the foregoing, the Company, by action of the Board, may at any time before any Person becomes an Acquiring Person amend this Agreement
to make the provisions of this Agreement inapplicable to a particular transaction by which a Person might otherwise become an Acquiring
Person or to otherwise alter the terms and conditions of this Agreement as they may apply with respect to any such transaction. Upon the
delivery of a certificate from an appropriate officer of the Company that states that the proposed supplement or amendment is in compliance
with the terms of this Section 28, the Rights Agent shall execute such supplement or amendment; provided, however,
that any supplement or amendment that does not amend Sections 18, 19, 20, 21, or this Section 28 in
a manner adverse to the Rights Agent shall become effective immediately upon execution by the Company, whether or not also executed by
the Rights Agent. The Company shall provide within three (3) Business Days of the adoption of an amendment to the Agreement written notification
of such amendment to the Rights Agent.
Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident with the interests of the holders of Common Stock.
Section 29. Successors.
All the covenants and provisions
of this Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective successors
and assigns hereunder.
Section 30. Determinations
and Actions by the Board.
(a) For all purposes of this
Agreement, any calculation of the number of shares of Common Stock or any other class of capital stock outstanding at any particular time,
including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act or Section 382 of the Code and the Treasury Regulations promulgated thereunder, as applicable. Except as otherwise specifically
provided herein, the Board has the exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company hereunder, or as may be necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power (a) to interpret the provisions of this Agreement, and (b) to make all determinations deemed necessary
or advisable for the administration of this Agreement (including, without limitation, a determination to redeem or not redeem the Rights
in accordance with Section 23 hereof, to exchange or not exchange the rights in accordance with Section 24 hereof, to amend
or not amend this Agreement in accordance with Section 28 hereof). All such actions, calculations, interpretations and determinations
(including, for purposes of clause (ii) below, all omissions with respect to the foregoing) that are done or made by the Board shall be
(i) be final, conclusive, and binding on the Company, the Rights Agent, the holders of the Rights and all other parties; and (ii) not
subject the Board or any member thereof to any liability to the holders of the Rights. Without limiting the foregoing, nothing contained
herein shall be construed to suggest or imply that the Board shall not be entitled to reject any Qualifying Offer or any other tender
offer or other acquisition proposal, or to recommend that holders of Common Stock of the Company reject any Qualifying Offer or any other
tender offer or other acquisition proposal, or to take any other action (including, without limitation, the commencement, prosecution,
defense or settlement of any litigation and the submission of additional or alternative offers or other proposals) with respect to any
Qualifying Offer or any other tender offer or other acquisition proposal that the Board determines in good faith is necessary or appropriate
in the exercise of its fiduciary duties.
Section 31. Benefits
of this Agreement.
Nothing in this Agreement
may be construed to give to any Person other than the Company, the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered holders of shares of the Common Stock of the Company) any legal or equitable right,
remedy or claim under this Agreement; rather, this Agreement is for the sole and exclusive benefit of the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to the Distribution Date, the registered holders of shares of Common Stock
of the Company).
Section 32. Tax
Compliance and Withholding.
(a) The Rights Agent, on its
own behalf and on behalf of the Company, will comply with all applicable certification, information reporting and withholding (including
“backup” withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to
(i) any payments made hereunder and (ii) the issuance, delivery, holding, transfer, redemption or exercise of Rights, Common Stock or
Preferred Stock hereunder. Such compliance shall include, without limitation, the preparation and timely filing of required returns and
the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent. The Rights Agent
shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on written
request, to the Company or its authorized representative within a reasonable period of time after receipt of such request.
(b) In the event that the
Company, the Rights Agent or their agents determine that they are obligated to withhold or deduct any tax or other governmental charge
under any applicable law on actual or deemed payments or distributions hereunder to a holder of the Rights, Common Stock or other cash,
securities or other property, the Company, the Rights Agent or their agents shall be entitled to (i) deduct and withhold such amount by
withholding a portion or all of the cash, securities or other property otherwise deliverable or by otherwise using any property (including,
without limitation, Rights, Preferred Stock, Common Stock or cash) that is owned by such holder, or (ii) in lieu of such withholding,
require any holder to make a payment to the Company, the Rights Agent or their agents, in each case in such amounts as they deem necessary
to meet their withholding obligations, and in the case of (i) above, shall also be entitled to sell all or a portion of such withheld
securities or other property by public or private sale in such amounts and in such manner as they deem necessary and practicable to pay
such taxes and governmental charges.
Section 33. Severability.
If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, null and void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect and will in
no way be affected, impaired or invalidated; provided, however, that notwithstanding anything in this Agreement to the contrary,
if any such term, provision, covenant or restriction is held by such court or authority to be invalid, null and void or unenforceable
and the Board determines in good faith judgment that severing the invalid language from this Agreement would materially and adversely
affect the purpose or effect of this Agreement, the right of redemption set forth in Section 23 hereof shall be reinstated and
will not expire until the Close of Business on the tenth (10th) Business Day following the date of such determination by the Board.
Section 34. Governing
Law.
This Agreement, each Right,
and each Rights Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of New York and for all
purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed
entirely within such State.
Section 35. Counterparts.
This Agreement may be executed
in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed
to be an original, but all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page
of Agreement by facsimile or other customary shall mean of electronic transmission (e.g., “PDF”) shall be effective as delivery
of a manually executed counterpart hereof.
Section 36. Interpretation.
The headings contained in
this Agreement are for descriptive purposes only and shall not affect in any way the meaning or interpretation of this Agreement. For
purposes of this Agreement, whenever a specific provision of the Code or a specific Treasury Regulation is referenced, such reference
shall also apply to any successor or replacement provision or Treasury Regulation, as applicable.
Section 37. Force
Majeure.
Notwithstanding anything to
the contrary contained herein, the Rights Agent will not have any liability for not performing, or a delay in the performance of, any
act, duty, obligation or responsibility by reason of any occurrence beyond the reasonable control of the Rights Agent (including, without
limitation, any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil or military
disobedience or disorder, riot, rebellion, terrorism, insurrection, fire, earthquake, storm, flood, strike, work stoppage, interruptions
or malfunctions of computer facilities, loss of data due to power failures or mechanical difficulties with information, labor dispute,
accident or failure or malfunction of any utilities, communication or computer (software or hardware) services or similar occurrence).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed, all as of the date first above written.
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DOMINARI HOLDINGS INC., a Delaware corporation |
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By: |
/s/ Anthony Hayes |
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Name: |
Anthony Hayes |
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Title: |
Chief Executive Officer |
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Rights Agent |
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|
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By: |
/s/ Steven Vacante |
|
Name: |
Steven Vacante |
|
Title: |
Vice President and Account Administrator |
EXHIBIT A
CERTIFICATE OF DESIGNATION
OF
SERIES Q PREFERRED STOCK
OF
DOMINARI HOLDINGS INC.
(Pursuant to Section 151 of the Delaware General
Corporation Law)
In accordance with Section
151 of the Delaware General Corporation Law, the undersigned corporation, hereby certifies that the following resolution was adopted by
the Board of Directors of Dominari Holdings Inc., a Delaware corporation (the “Corporation”) at a meeting duly called
and held:
RESOLVED, that pursuant
to the authority granted to and vested in the Board of Directors of this Corporation (the “Board of Directors”) in
accordance with the provisions of the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate
of Incorporation”), the Board of Directors hereby creates a series of Preferred Stock, par value $0.0001 per share, of the Corporation
(the “Preferred Stock”), and hereby states the designation and number of shares, and fixes the relative rights, preferences,
and limitations thereof in this certificate of designation (this “Certificate of Designation”) as follows:
Series Q Preferred Stock:
(1) Designation and Amount.
The shares of such series shall be designated as “Series Q Preferred Stock” (the “Series Q Preferred Stock”)
and the number of shares constituting the Series Q Preferred Stock shall be 50,000 shares. Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series Q Preferred Stock
to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series Q Preferred
Stock.
(2) Dividends and Distributions.
(a) Subject to
the rights of the holders of any shares of any series of Preferred Stock (or any similar stock) ranking prior and superior to the Series
Q Preferred Stock with respect to dividends, the holders of shares of Series Q Preferred Stock, in preference to the holders of Common
Stock, par value $0.0001 per share (the “Common Stock”), of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a “Quarterly
Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series Q Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (1) $1.00 or (2)
subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000
times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series Q Preferred Stock. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series
Q Preferred Stock were entitled immediately prior to such event under clause (2) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(b) The Corporation
shall declare a dividend or distribution on the Series Q Preferred Stock as provided in paragraph (a) of this subsection immediately after
it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided,
that in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series Q Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall
begin to accrue and be cumulative on outstanding shares of Series Q Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series Q Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series Q Preferred Stock in an amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares of Series Q Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be not more than sixty (60) days prior to the date fixed for the
payment thereof.
(3) Voting Rights.
The holders of shares of Series Q Preferred Stock shall have the following voting rights:
(a) Subject to
the provision for adjustment hereinafter set forth, each share of Series Q Preferred Stock shall entitle the holder thereof to 1,000 votes
on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series Q Preferred
Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise
provided herein, in any other certificate of designation creating a series of Preferred Stock or any similar stock, or by law, the holders
of shares of Series Q Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(c) Except as set
forth herein, or as otherwise provided by law, holders of Series Q Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
(4) Certain Restrictions.
(a) Whenever quarterly
dividends or other dividends or distributions payable on the Series Q Preferred Stock as provided in Section (2) are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series Q Preferred Stock outstanding
shall have been paid in full, the Corporation shall not:
(1) declare or
pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series Q Preferred Stock;
(2) declare or
pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series Q Preferred Stock, except dividends paid ratably on the Series Q Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are
then entitled;
(3) redeem or
purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series Q Preferred Stock other than (A) such redemptions or purchases that may be deemed to occur upon the exercise
of stock options, warrants or similar rights or grant, vesting or lapse of restrictions on the grant of any other performance shares,
restricted stock, restricted stock units or other equity awards to the extent that such shares represent all or a portion of (x) the exercise
or purchase price of such options, warrants or similar rights or other equity awards and (y) the amount of withholding taxes owed by the
recipient of such award in respect of such grant, exercise, vesting or lapse of restrictions; (B) the repurchase, redemption, or other
acquisition or retirement for value of any such shares from employees, former employees, directors, former directors, consultants or former
consultants of the Corporation or their respective estate, spouse, former spouse or family member, pursuant to the terms of the agreements
pursuant to which such shares were acquired, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series Q Preferred Stock; or
(4) redeem or
purchase or otherwise acquire for consideration any shares of Series Q Preferred Stock, or any shares of stock ranking on a parity with
the Series Q Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Corporation
shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (a) of this Section (4), purchase or otherwise acquire such shares at such time and
in such manner.
(5) Reacquired Shares.
Any shares of Series Q Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance
set forth herein, in the Certificate of Incorporation, or in any other certificate of designation creating a series of Preferred Stock
or any similar stock or as otherwise required by law.
(6) Liquidation, Dissolution
or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, voluntary or otherwise, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series Q Preferred Stock unless, prior thereto, the holders of shares of Series Q Preferred Stock shall have received the greater of (A)
$1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, and (B) an amount, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate
amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the Series Q Preferred Stock, except distributions made ratably
on the Series Q Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series Q Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(7) Consolidation, Merger,
Etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of
Series Q Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series Q Preferred Stock shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(8) No Redemption.
The shares of Series Q Preferred Stock shall not be redeemable.
(9) Rank. The Series
Q Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other
class of the Corporation’s Preferred Stock and shall rank senior to the Common Stock as to such matters.
(10) Amendment. The
Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series Q Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series Q Preferred Stock, voting together as a single class.
(11) Fractional
Shares. The Series Q Preferred Stock may be issued in fractions of a share, which fractions shall entitle the holder, in proportion
to such holder’s fractional shares, to exercise voting rights, receive dividends, participate
in distributions, and to have the benefit of all other rights of holders of Series Q Preferred Stock.
(12)
Mutilated, Lost, Stolen or Destroyed Certificate. In case the Series Q Preferred Stock certificate shall be mutilated,
lost, stolen or destroyed, the Corporation shall issue and deliver in exchange and substitution for and upon cancellation of the mutilated
certificate, or in lieu of and substitution for the certificate, mutilated, lost, stolen or destroyed, a new certificate of like tenor
and representing an equivalent right or interest, but only upon receipt of evidence reasonably satisfactory to the Corporation of such
loss, theft or destruction and an indemnity or bond, if requested, also reasonably satisfactory to it.
(13) Waiver. Any waiver
by the Corporation or a holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to
be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver
by any other holders. The failure of the Corporation or a holder to insist upon strict adherence to any term of this Certificate of Designation
on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist
upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation
or a holder must be in writing.
(14) Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to
all other persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the
applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate
of interest permitted under applicable law.
(15) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed
by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict
of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by that
certain Rights Agreement, dated as of October 11, 2023, by and between the Corporation and Continental Stock Transfer & Trust Company
(whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be
commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”).
The Corporation and each holder hereby irrevocably submits to the exclusive jurisdiction of the New York Courts 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
such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. The Corporation and each holder
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 via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Certificate of Designation 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 other manner permitted
by applicable law. The Corporation and each holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated
hereby. If the Corporation or any holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other
costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
EXHIBIT B
SUMMARY OF RIGHTS
TO PURCHASE SERIES Q PREFERRED STOCK
Introduction
The Board of Directors (the
“Board”) of Dominari Holdings Inc, a Delaware corporation (the “Company”), declared a dividend of
one preferred share purchase right (a “Right”) for each outstanding share of common stock, par value $0.0001 per share,
of the Company (the “Common Stock”). The dividend is payable on September 22, 2023 (the “Record Date”)
to the stockholders of record on that date. Each Right entitles the registered holder to purchase from the Company one one-thousandth
of a share of Series Q Preferred Stock, par value $0.0001 per share, of the Company (the “Preferred Stock”) at a price
of $5.00 per one one-thousandth of a share of Preferred Stock (the “Purchase Price”), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement dated as of October 11, 2023, as the same may be amended from time to time
(the “Rights Agreement”), between the Company and Continental Stock Transfer & Trust Company, as Rights Agent (the
“Rights Agent”).
Until the earlier to occur
of (i) the close of business on the tenth business day after a public announcement that a person or group of affiliated or associated
persons (with certain exceptions, an “Acquiring Person”) has acquired beneficial ownership of 4.99% or more of the
outstanding shares of Common Stock and (ii) the close of business on the tenth business day after the commencement by any person of, or
of the first public announcement of the intention of any Person to commence, a tender or exchange offer the consummation of which would
result in such Person becoming the Beneficial Owner of 4.99% or more of the outstanding shares of Common Stock (the earlier of such dates
being called the “Distribution Date”), the Rights will be evidenced, with respect to any of the Common Stock certificates
(or book entry shares) outstanding as of the Record Date, by such Common Stock certificate (or book entry shares) together with this Summary
of Rights.
The Rights Agreement provides
that, until the Distribution Date (or earlier expiration or redemption of the Rights), the Rights will be transferred with and only with
the Common Stock. Until the Distribution Date (or earlier expiration or redemption of the Rights), new Common Stock certificates issued
after the Record Date upon transfer or new issuances of Common Stock will contain a legend incorporating the Rights Agreement by reference,
and notice of such legend will be furnished to holders of book entry shares. Until the Distribution Date (or earlier expiration or redemption
of the Rights), the surrender for transfer of any certificates for shares of Common Stock (or book entry shares of Common Stock) outstanding
as of the Record Date, even without such legend or a copy of this Summary of Rights, will also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such certificate or registered in book entry form. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights (“Rights Certificates”) will be mailed to holders of
record of the Common Stock as of the Close of Business on the Distribution Date and such separate Right Certificates alone will evidence
the Rights.
(i) the Close of Business
on October 11, 2024, unless this Agreement is renewed for up to two additional twelve (12) month periods, as may be approved by the Board
prior to the expiration of the Rights as long as each such twelve (12) month renewal period is submitted to the stockholders of the Company
for their approval and is thereby approved, and, if not approved, with respect to any such twelve (12) month renewal period, then the
last date for which this Agreement is in effect (the “Final Expiration Date”), (ii) the time at which the Rights are
redeemed or exchanged by the Company, in each case as described below, (iii) upon the occurrence of certain transactions, (iv) the Close
of Business on the effective date of the repeal of Section 382 of the Internal Revenue Code of 1986, as amended, if the Board determines
that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits, and (v) the Close of Business on the first
day of a taxable year of the Company to which the Board determines that no Tax Benefits (as defined in the Rights Agreement) are available
to be carried forward.
The Purchase Price payable,
and the number of shares of Preferred Stock or other securities or property issuable, upon exercise of the Rights is subject to adjustment
from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights or warrants to subscribe for or purchase Preferred
Stock at a price, or securities convertible into Preferred Stock with a conversion price, less than the then-current market price of the
Preferred Stock or (iii) upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Preferred Stock) or of subscription rights or warrants (other than those referred to above).
The number of outstanding
Rights is subject to adjustment in the event of a stock dividend on the Common Stock payable in shares of Common Stock or subdivisions,
consolidations or combinations of the Common Stock occurring, in any such case, prior to the Distribution Date.
Shares of Preferred Stock
purchasable upon exercise of the Rights will not be redeemable. Each share of Preferred Stock will be entitled, when, as and if declared,
to a minimum preferential quarterly dividend payment of the greater of (a) $1.00 per share, and (b) an amount equal to 1,000 times the
dividend declared per share of Common Stock. In the event of liquidation, dissolution or winding up of the Company, the holders of the
Preferred Stock will be entitled to a minimum preferential payment of the greater of (i) $1,000.00 per share (plus any accrued but unpaid
dividends), and (ii) an amount equal to 1,000 times the payment made per share of Common Stock. Each share of Preferred Stock will have
1,000 votes, voting together with the Common Stock. Finally, in the event of any merger, consolidation or other transaction in which outstanding
shares of Common Stock are converted or exchanged, each share of Preferred Stock will be entitled to receive 1,000 times the amount received
per share of Common Stock. These rights are protected by customary anti-dilution provisions.
Because of the nature of the
Preferred Stock’s dividend, liquidation and voting rights, the value of the one one-thousandth interest in a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one share of Common Stock.
In the event that any person
or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right, other than Rights beneficially owned
by the Acquiring Person, affiliates and associates of the Acquiring Person and certain transferees thereof (which will thereupon become
null and void), will thereafter have the right to receive upon exercise of a Right that number of shares of Common Stock having a market
value of two times the exercise price of the Right.
In the event that, after a
person or group has become an Acquiring Person, the Company is acquired in a merger or other business combination transaction or 50% or
more of its consolidated assets or earning power are sold, proper provisions will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person, affiliates and associates of the Acquiring Person and certain transferees thereof which will
have become null and void) will thereafter have the right to receive upon the exercise of a Right that number of shares of common stock
of the person with whom the Company has engaged in the foregoing transaction (or its parent) that at the time of such transaction have
a market value of two times the exercise price of the Right.
At any time after any person
or group becomes an Acquiring Person and prior to the earlier of one of the events described in the previous paragraph or the acquisition
by such Acquiring Person of 50% or more of the outstanding shares of Common Stock, the Board may exchange the Rights (other than Rights
owned by such Acquiring Person and certain transferees thereof which will have become null and void), in whole or in part, for shares
of Common Stock or Preferred Stock (or a series of the Company’s preferred stock having equivalent rights, preferences and privileges),
at an exchange ratio of two shares of Common Stock, or a fractional share of Preferred Stock (or other preferred stock) equivalent in
value thereto, per Right.
With certain exceptions, no
adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Purchase Price.
No fractional shares of Preferred Stock or Common Stock will be issued (other than fractions of shares of Preferred Stock which are integral
multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts),
and in lieu thereof an adjustment in cash will be made based on the current market price of the Preferred Stock or the Common Stock.
At any time prior to the time
an Acquiring Person becomes such, the Board may redeem the Rights in whole, but not in part, at a price of $0.0001 per Right (the “Redemption
Price”) payable, at the option of the Company, in cash, shares of Common Stock or such other form of consideration as the Board
shall determine. The redemption of the Rights may be made effective at such time, on such basis and with such conditions as the Board
in its sole discretion may establish. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
For so long as the Rights
are then redeemable, the Company may, except with respect to the Redemption Price, amend the Rights Agreement in any manner. After the
Rights are no longer redeemable, the Company may, except with respect to the Redemption Price, amend the Rights Agreement in any manner
that does not adversely affect the interests of holders of the Rights (other than holders of Rights owned by or transferred to any person
who is or becomes an Acquiring Person or affiliates and associates of an Acquiring Person and certain transferees thereof).
Until a Right is exercised
or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement
has been filed with the Securities and Exchange Commission, on [_____], 2023, as an exhibit to a Current Report on Form 8-K. A copy of
the Rights Agreement is available free of charge from the Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, as the same may be amended from time to time, which is hereby incorporated
herein by reference.
EXHIBIT C
FORM OF RIGHTS CERTIFICATE
Certificate No. R-________ |
|
________ Rights |
NOT EXERCISABLE AFTER [_______]
OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.0001 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF ANY SUCH PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. THE RIGHTS SHALL NOT BE EXERCISABLE, AND SHALL BE NULL AND VOID, AS LONG AS HELD BY A HOLDER IN
ANY JURISDICTION WHERE THE REQUISITE QUALIFICATION TO THE ISSUANCE TO SUCH HOLDER, OR THE EXERCISE BY SUCH HOLDER, OF THE RIGHTS IN SUCH
JURISDICTION SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE.
[The
Rights represented by this Rights Certificate are or were Beneficially Owned by a Person who was or became an Acquiring Person or a Related
Person of an Acquiring Person (as such terms are defined in the Rights Agreement. Accordingly, this Rights Certificate and the Rights
represented hereby may become null and void in the circumstances specified in Section 7(e) of the Rights Agreement.]*
* The portion of the legend in brackets shall be inserted only if applicable and shall replace the preceding sentence.
Rights Certificate
This certifies that _________________,
or its registered assigns, is the registered holder of the number of Rights set forth above, each of which entitles the holder thereof,
subject to the terms, provisions and conditions of the Rights Agreement, dated as of October 11, 2023, as amended from time to time (the
“Rights Agreement”), between Dominari Holdings Inc., a Delaware corporation (the “Company”),
and Continental Stock Transfer & Trust Company, as Rights Agent (the “Rights Agent”), to purchase from the
Company at any time after the Distribution Date and prior to 5:00 p.m., New York City time, on October 11, 2023, at the office or offices
of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-thousandth of a fully paid, non-assessable
share of Series Q Preferred Stock, par value $0.0001 per share (the “Preferred Stock”), of the Company, at a
purchase price of $5.00 per one one-thousandth share of Preferred Stock (the “Exercise Price”), upon presentation
and surrender of this Rights Certificate with the Election to Purchase and related Certificate duly executed. The number of Rights evidenced
by this Rights Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Exercise Price
per share as set forth above, are the number and Exercise Price as of September 22, 2023, based on the Preferred Stock as constituted
at such date, and are subject to adjustment upon the happening of certain events as provided in the Rights Agreement. Capitalized terms
used and not defined herein shall have the meanings specified in the Rights Agreement.
From and after the occurrence
of a Flip-In Event or Flip-Over Event, the Rights evidenced by this Rights Certificate beneficially owned by (i) an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person, (ii) a transferee of any such Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights Agreement, a transferee of a person who, concurrently with or after such transfer,
became an Acquiring Person or an Affiliate or Associate of an Acquiring Person shall become null and void and no holder hereof shall have
any right with respect to such Rights from and after the occurrence of such Flip-In Event or Flip-Over Event.
The Rights evidenced by this
Rights Certificate shall not be exercisable, and shall be null and void as long as held, by a holder in any jurisdiction where the requisite
qualification to the issuance to such holder, or the exercise by such holder, of the Rights in such jurisdiction shall not have been obtained
or be obtainable.
As provided in the Rights
Agreement, the Exercise Price and the number and kind of shares of Preferred Stock or other securities which may be acquired upon the
exercise of the Rights evidenced by this Rights Certificate are subject to modification and adjustment upon the happening of certain events,
including Triggering Events.
This Rights Certificate is
subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Rights Certificates,
which limitations of rights include the temporary suspension of the exercisability of such Rights under the specific circumstances set
forth in the Rights Agreement. Copies of the Rights Agreement are on file at the above-mentioned office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Rights Certificate, with
or without other Rights Certificates, upon surrender at the office or offices of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number
of one one-thousandths of a share of Preferred Stock as the Rights evidenced by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Rights Certificate or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions
of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed by the Company under certain circumstances at its option
at a redemption price of $0.0001 per Right at any time prior to the earlier of the Close of Business on (i) the Stock Acquisition Date
and (ii) the Final Expiration Date.
At any time after a person
becomes an Acquiring Person and prior to the acquisition by such person of 50% or more of the outstanding Common Stock, the Board may
exchange the Rights (other than Rights owned by such Acquiring Person which have become null and void), in whole or in part, at an exchange
ratio of two shares of Common Stock per each outstanding Right or, in certain circumstances, other equity securities of the Company which
are deemed by the Board to have the same value as shares of Common Stock, subject to adjustment.
No fractional shares of Preferred
Stock will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts), but in
lieu thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate,
as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of shares of Preferred Stock or of any
other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement
or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement),
or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall
not be valid or obligatory for any purpose until it shall have been countersigned by an authorized signatory of the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company.
Dated as of _____________, ______.
|
DOMINARI
HOLDINGS INC., a Delaware corporation |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
Countersigned:
Dated as of _____________, ______.
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Rights Agent |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED hereby
sells, assigns and transfers unto (Please print name and address of transferee): ___________________________________________________________________________________
this Rights Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint Attorney, to transfer the within Rights Certificate on
the books of the within-named Company, with full power of substitution.
Dated _____________, ______.
____________________
Signature
Certificate
The undersigned hereby certifies
by checking the appropriate boxes that:
| (1) | this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Person (as such terms are defined pursuant
to the Rights Agreement); and |
| (2) | after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of any such Person. |
Dated _____________, ______.
_____________________
Signature
NOTICE
The signature to the foregoing
Assignment and Certificate must correspond to the name as written upon the face of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
Signatures must be guaranteed
by a participant in a Medallion Signature Guarantee Program at a level acceptable to the Rights Agent.
In the event the certification
set forth above is not completed, the Company will deem the beneficial owner of the Rights evidenced by this Rights Certificate to be
an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and, in the case of an Assignment, will
affix a legend to that effect on any Rights Certificates issued in exchange for this Rights Certificate.
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires
to exercise Rights represented by the Rights Certificate.)
To: ______________________
The undersigned hereby irrevocably
elects to exercise Rights represented by this Rights Certificate to purchase the shares of Preferred Stock issuable upon the exercise
of the Rights (or such other securities of the Company or of any other person or such other property which may be issuable upon the exercise
of the Rights) and requests that certificates for such shares (or such other securities of the Company or of any other person or such
other property as may be issuable upon the exercise of the Rights) be issued in the name of and delivered to:
Please print name and address: ________________________
Please insert social security or other identifying number: ________________________
If such number of Rights shall
not be all the Rights evidenced by this Rights Certificate, a new Rights Certificate for the balance of such Rights shall be registered
in the name of and delivered to:
(Please print name and address)
Please print name and address: ________________________
Please insert social security or other identifying number: ________________________
Certificate
The undersigned hereby certifies
by checking the appropriate boxes that:
| (1) | the Rights evidenced by this Rights Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate
of any such Person (as such terms are defined in the Rights Agreement); and |
| (2) | after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person
who is, was or became an Acquiring Person or an Affiliate or Associate of any such Person. |
Dated _____________, ______.
_____________________
Signature
NOTICE
The signature to the foregoing
Election to Purchase and Certificate must correspond to the name as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
Signatures must be guaranteed
by a participant in a Medallion Signature Guarantee Program at a level acceptable to the Rights Agent.
In the event the certification
set forth above is not completed, the Company will deem the beneficial owner of the Rights evidenced by this Rights Certificate to be
an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and, in the case of an Assignment, will
affix a legend to that effect on any Rights Certificates issued in exchange for this Rights Certificate.
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