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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 1, 2024
Cemtrex
Inc.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-37464 |
|
30-0399914 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
135
Fell Court
Hauppauge,
NY |
|
11788 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (631) 756-9116
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17CFR 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-4I under the Exchange Act (17 CFR 240.13I(c)) |
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. ☐
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
symbol |
|
Name
of each exchange on which registered |
Common
Stock |
|
CETX |
|
Nasdaq
Capital Market |
CURRENT
REPORT ON FORM 8-K
Cemtrex,
Inc.
Item
1.01 Entry into a Material Definitive Agreement.
On
May 1, 2024, Cemtrex, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”)
with Aegis Capital Corp. (the “Underwriter”), in connection with a firm commitment underwritten public offering (the “Offering”)
of (i) 554,705 units (the “Common Units”), each consisting of one share of common stock of the Company (“common stock”),
a warrant to purchase one share of common stock at an exercise price of $.085 per share or pursuant to an alternative cashless exercise
option (described below), which warrant will expire on the two-and-a-half year anniversary of the original issuance date (the “Series
A Warrants”) and a warrant to purchase one share of common stock at an exercise price of $0.85 per share, which warrant will expire
on the five-year anniversary of the original issuance date (the “Series B Warrants” and together with the Series A Warrants,
the “Warrants”); and (ii) 11,210,000 pre-funded units (the “Pre-funded Units” and together with the Common Units,
the “Units”), each consisting of one pre-funded warrant to purchase one share of common stock (the “Pre-funded Warrants”),
a Series A Warrant and a Series B Warrant. The purchase price of each Unit was $0.85, and the purchase price of each Pre-Funded Unit
was $0.849 (which is equal to the public offering price per Common Unit to be sold in the Offering minus $0.001). The Pre-Funded Warrants
are immediately exercisable and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.
In
addition, the Company granted the Underwriter a 45-day option to purchase additional 1,764,705 shares of common stock and/or Pre-Funded
Warrants, representing up to 15% of the number of common stock and Pre-Funded Warrants sold in the Offering, and/or additional 1,764,705
Series A Warrants representing up to 15% of the Series A Warrants sold in the Offering, and/or additional 1,764,705 Series B Warrants
representing up to 15% of the Series B Warrants sold in the Offering solely to cover over-allotments, if any.
Under
the alternate cashless exercise option of the Series A Warrants, beginning on the date of the Warrant Stockholder Approval (described
below), the holder of the Series A Warrant, has the right to receive an aggregate number of shares equal to three times the aggregate
number of shares of common stock that would be issuable upon a cash exercise of the Series A Warrant. In addition, beginning on the date
of the Warrant Stockholder Approval, the Warrants will contain a reset of the exercise price to a price equal to the lesser of (i) the
then-current exercise price and (ii) lowest volume weighted average price for the five trading days immediately preceding and immediately
following the date we effect a reverse stock split in the future with a proportionate adjustment to the number of shares underlying the
Warrants. Finally, with certain exceptions, the Series B Warrants provide for an adjustment to the exercise price and, subject to Warrant
Stockholder Approval, to the number of shares underlying the Series B Warrant, upon our issuance of our common stock or common stock
equivalents at a price per share that is less than the then-current exercise price of the Series B Warrant.
The
alternative cashless exercise option included in the Series A Warrants and the other adjustment provisions in the Warrants described
above will be available only upon receipt of such stockholder approval as may be required by the applicable rules and regulations of
the Nasdaq Capital Market to permit the alternate cashless exercise of the Series A Warrants and the other adjustment provisions described
above included in the Warrants (the “Warrant Stockholder Approval”). In the event that the Company is unable to obtain the
Warrant Stockholder Approval, the Series A Warrants will not be exercisable using the alternative cashless exercise option and certain
of the other adjustment provisions described above included in the Warrants will not be effective.
The
Offering closed on May 3, 2024. An aggregate of 11,764,705 Units (which includes 554,705 shares of common stock) and 11,210,000 Pre-Funded
Units (which includes 11,210,000 Pre-Funded Warrants) were sold in the Offering. On May 3, 2024, the Underwriter partially exercised
its over-allotment option with respect to 1,764,705 Series A Warrants and 1,764,705 Series B Warrants. The aggregate gross proceeds
to the Company were approximately $10,035,000, before deducting underwriting discounts and other estimated expenses payable by
the Company.
The
Offering was made pursuant to an effective registration statement on Form S-1 (File No. 333-276556) and the preliminary prospectus contained
therein, which was filed by the Company with the Securities and Exchange Commission on January 17, 2024, amended on April 23, 2024 and
April 30, 2024, and declared effective on April 30, 2024. A final prospectus relating to the Offering was filed with the SEC on May 3,
2024. The Company intends to use the net proceeds from the Offering as outlined in the prospectus.
Under
the terms of the Underwriting Agreement, the Underwriter received an underwriting discount of 7.0% to the public offering price for the
Units. In addition, the Company agreed to (a) pay a non-accountable expense allowance to the Underwriter equal to 0.5% of the gross proceeds
received in this Offering and (b) to reimburse the Underwriter for certain out-of-pocket expenses, including, but not limited to, up
to $100,000 for reasonable legal fees and disbursements for the Underwriter’s counsel.
The
Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended,
other obligations of the parties and termination provisions.
The
foregoing description of the Underwriting Agreement, Pre-funded Warrant, Series A Warrant and Series B Warrant is not complete and is
qualified in its entirety by reference to the full text of such agreements, copies of which are filed as Exhibits 1.1, 4.1, 4.2, and
4.3 and are incorporated by reference herein.
Item
9.01 Financial Statements and Exhibits
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
CEMTREX,
INC. |
|
|
Date:
May 3, 2024 |
By: |
/s/
Saagar Govil |
|
|
Saagar
Govil |
|
|
Chairman,
President, and Chief Executive Officer |
Exhibit 1.1
Underwriting
Agreement
May 1, 2024
Aegis Capital Corp.
1345 Avenue of the Americas, 27th Floor
New York, NY 10105
Ladies and Gentlemen:
Cemtrex Inc., a Delaware corporation (the
“Company”), agrees, subject to the terms and conditions in this agreement (this “Agreement”),
to issue and sell to Aegis Capital Corp. (the “Underwriter”) an aggregate of 11,764,705 of the Company’s
units (each, a “Closing Unit”), with each Closing Unit consisting of either: (A) one (1) share of Common Stock,
$0.001 par value per share (the “Closing Shares”) of the Company (the “Common Stock”)
and one (1) Series A warrant (each, a “Series A Warrant”) to purchase one (1) share of Common Stock at a per
Share exercise price of $0.85 and one (1) Series B warrant (each, a “Series B Warrant”) to purchase one (1)
share of Common Stock at a per Share exercise price of $0.85 (each, a “Closing Common Unit”); or (B) one pre-funded
warrant (each, a “Pre-funded Warrant”) to purchase one (1) share of Common Stock at an exercise price of $0.001
and one (1) Series A Warrant and one (1) Series B Warrant (each, a “Closing Pre-funded Unit”). The shares of
Common Stock referred to in this Section are hereinafter referred to as the “Closing Shares”; the Warrants referred
to in this Section are hereinafter referred to as the “Closing Warrants”; and the Pre-funded Warrants referred
to in this Section are hereinafter referred to as the “Closing Pre-funded Warrants.” No Closing Common Units
will be certificated, and the Closing Shares and the Closing Warrants comprising the Closing Common Units will be separated immediately
upon issuance. No Closing Pre-funded Units will be certificated, and the Closing Pre-funded Warrants and the Closing Warrants comprising
the Closing Pre-funded Units will be separated immediately upon issuance. At the option of the Underwriter, the Company agrees, subject
to the terms and conditions herein, to issue and sell additional Option Securities (as defined in Section 4.2 hereof). The Closing Units
and the Option Securities are herein referred to collectively as the “Securities”. The number of Closing Units
and Option Securities to be purchased by the Underwriter is set forth opposite its name in Schedule 4.1.2 hereto. Aegis Capital Corp.
has agreed to act as the Underwriter in connection with the offering and sale of the Securities.
1.1. “Affiliate”
has the meaning set forth in Rule 405 under the Securities Act.
1.2. “Applicable
Time” means Eastern Time on the date hereof.
1.3. “Bona Fide Electronic Road
Show” means a “bona fide electronic road show” (as defined in Rule 433(h)(5) under the Securities Act) that
the Company has made available without restriction by “graphic means” (as defined in Rule 405 under the Securities Act) to
any person.
1.4. “Business Day”
means a day on which the Nasdaq Capital Market is open for trading and on which banks in New York are open for business and not permitted
by law or executive order to be closed.
1.5. “Commission”
means the United States Securities and Exchange Commission.
1.6. “Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
1.7. “Final Prospectus”
means the prospectus in the form first filed with the Commission pursuant to and within the time limits described in Rule 424(b) under
the Securities Act.
1.8. “Free Writing Prospectus”
has the meaning set forth in Rule 405 under the Securities Act.
1.9. “Indebtedness”
means (a) any liabilities for borrowed money or amounts owed in excess of $50,000 in aggregate (other than trade accounts payable incurred
in the ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c)
the present value of any lease payments in excess of $50,000 in aggregate due under leases required to be capitalized in accordance with
GAAP.
1.10. “Investment Company Act”
means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
1.11. “Issuer Free Writing Prospectus”
means an “issuer free writing prospectus” (as defined in Rule 433(h)(1) under the Securities Act).
1.12. “Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
1.13. “Preliminary Prospectus”
means any preliminary prospectus included in the Registration Statement prior to the time at which the Commission declared the Registration
Statement effective.
1.14. “Pricing Disclosure Package”
means the Preliminary Prospectus collectively with this Agreement (including documents attached hereto or incorporated by reference herein)
and the documents and pricing information set forth in Schedule 1.14 hereto.
1.15. “Prospectus Delivery Period”
means such period of time after the first date of the public offering of the Units as in the opinion of counsel for the Underwriter a
prospectus relating to the Units is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Units by the Underwriter or dealer.
1.16. “Registration Statement”
means (a) the registration statement on Form S-1 (File No. 333-276556), including a prospectus, registering the offer and sale of the
Closing Units under the Securities Act as amended at the time the Commission declared it effective, including each of the exhibits, financial
statements and schedules thereto, (b) any Rule 430A Information, and (c) any Rule 462(b) Registration Statement, including in each case
any documents incorporated by reference therein.
1.17. “Rule 430A Information”
means the information deemed, pursuant to Rule 430A under the Securities Act, to be part of the Registration Statement at the time the
Commission declared the Registration Statement effective.
1.18. “Rule 462(b) Registration
Statement” means an abbreviated registration statement to register the offer and sale of additional Units pursuant to Rule
462(b) under the Securities Act.
1.19. “Sarbanes-Oxley Act”
means the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder.
1.20. “Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.21. “Standstill
Period” has the meaning set forth in Section 5.10.1 hereof.
1.22. “Testing-the-Waters Communication”
means any oral or Written Communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act and Rule
163B thereunder.
1.23. “U.S. Company Counsel”
means The Doney Law Firm, with office at 4955 S. Durango Rd. Ste. 165 Las Vegas, NV 89113.
1.24. “Written Communication”
has the meaning set forth in Rule 405 under the Securities Act.
1.25. “Written Testing-the-Waters
Communications” means any Testing-the-Waters Communication that is a Written Communication.
2. |
Representations and Warranties of the Company. The Company hereby represents and warrants to, and agrees with, the Underwriter that the following matters are true and accurate and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Any certificate signed by an officer of the Company and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by the Company to the Underwriter as to the matters set forth therein. |
2.1. Registration Statement. The
Company has prepared and filed the Registration Statement with the Commission under the Securities Act. The Commission has declared the
Registration Statement effective under the Securities Act and the Company has not as of the date of this Agreement filed a post-effective
amendment to the Registration Statement. The Commission has not issued any order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of the Registration Statement, the Final Prospectus, any Preliminary Prospectus, any Issuer
Free Writing Prospectus or any Testing-the-Waters Communication, and no proceedings for such purpose or pursuant to Section 8A of the
Securities Act have been initiated, are pending before or, to the Company’s knowledge, threatened by the Commission.
2.1.1. The Registration
Statement, at the time it became effective, did not contain, and any post-effective amendment thereto, as of the effective date of such
amendment, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that the Company makes no representation or warranty with respect
to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company
in writing by the Underwriter expressly for use in the Registration Statement (including any post-effective amendment thereto), the Pricing
Disclosure Package, the Final Prospectus (including any amendments or supplements thereto), any Preliminary Prospectus, any Issuer Free
Writing Prospectus or any Testing- the-Waters Communication, it being understood and agreed that the only such information furnished by
the Underwriter consists of the information described in Section 9.3 hereof (collectively, the “Underwriter Information”).
2.1.2. Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective and at the date hereof, complied and will comply in
all material respects with the Securities Act.
2.2. Pricing Disclosure Package.
The Pricing Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date (as defined below) and as of any Additional
Closing Date (as defined below), as the case may be, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon
and in conformity with the Underwriter Information.
2.3.
Final Prospectus.
2.3.1. Each of the Final
Prospectus and any amendments or supplements thereto, as of its date, as of the time it is filed with the Commission pursuant to Rule
424(b) under the Securities Act, as of the Closing Date and as of any Additional Closing Date, as the case may be, will not contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that the Company makes
no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with the Underwriter
Information.
2.3.2. Each of the Final
Prospectus and any amendments or supplements thereto, at the time it is filed with the Commission pursuant to Rule 424(b) under the Securities
Act, as of the Closing Date and as of any Additional Closing Date, as the case may be, will comply in all material respects with the Securities
Act.
2.4.
Preliminary Prospectuses.
2.4.1. Each Preliminary
Prospectus, when considered together with any amendments or supplements thereto, as of the time it was filed with the Commission pursuant
to Rule 424(a) under the Securities Act, if any, did not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity
with the Underwriter Information.
2.4.2. Each Preliminary
Prospectus, when considered together with any amendments or supplements thereto, at the time it was filed with the Commission pursuant
to Rule 424(a) under the Securities Act, if any, complied in all material respects with the Securities Act.
2.5.
Issuer Free Writing Prospectuses.
2.5.1. Each Issuer Free
Writing Prospectus, when considered together with the Preliminary Prospectus accompanying, or delivered prior to the delivery of, such
Issuer Free Writing Prospectus, did not, as of the date of such Issuer Free Writing Prospectus, and will not, as of the Closing Date and
as of any Additional Closing Date, as the case may be, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity
with the Underwriter Information.
2.5.2. Each Issuer Free
Writing Prospectus, at the time of filing with the Commission, complied or will comply in all material respects with the Securities Act.
2.5.3. The Company has
filed, or will file, with the Commission, within the time period specified in Rule 433(d) under the Securities Act, any Free Writing Prospectus
it is required to file pursuant to Rule 433(d) under the Securities Act. The Company has made available any Bona Fide Electronic Road
Show used by it in compliance with Rule 433(d)(8)(ii) under the Securities Act such that no filing of any “road show” (as
defined in Rule 433(h) under the Securities Act) (“Road Show”) is required in connection with the offering of
the Units.
2.5.4. Except for the Issuer Free Writing
Prospectuses, if any, set forth in Schedule
2.5.4 hereto and electronic road shows,
if any, each furnished to the Underwriter before first use, the Company has not used, authorized the use of, referred to or participated
in the planning for use of, and will not, without the prior consent of the Underwriter, use, authorize the use of, refer to or participate
in the planning for use of, any Free Writing Prospectus.
2.6. Testing-the-Waters Communications.
The Company has not (x) alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent
of the Underwriter or any underwriter that the Company has previously identified to the Underwriter with entities that are qualified institutional
buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501 under
the Act, and (y) authorized anyone other than the Underwriter to engage in Testing-the-Waters Communications.
2.7. No Other Disclosure Materials.
Other than the Registration Statement, the Pricing Disclosure Package, the Final Prospectus and the Road Show, the Company (including
its agents and representatives, other than the Underwriter or any underwriter that the Company has previously identified to the Underwriter,
as to which no representation or warranty is given) has not, directly or indirectly, distributed, prepared, used, authorized, approved
or referred to, and will not distribute, prepare, use, authorize, approve or refer to, any offering material in connection with the offering
and sale of the Units.
2.8. Ineligible Issuer. At
the time of filing of the registration statement on Form S-1 (File No. 333-276556) registering the offer and sale of the Securities submitted
to the Commission on January 17, 2024 and any amendment thereto and at the date hereof, the Company was not and is not an “ineligible
issuer” (as defined in Rule 405 under the Securities Act).
2.9. Smaller Reporting Company.
From the time of initial filing of the Registration Statement with the Commission (or, if earlier, the first date on which the Company
engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof,
the Company has been and is a “smaller reporting company,” as defined in Rule 12b-2 under the Exchange Act.
2.10. Due Authorization. The
Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all action
required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby has been duly and validly taken.
2.11. Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery
by the other parties hereto, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as (i) the enforcement may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of creditors generally or by general equitable principles (whether
considered in a proceeding at law or in equity) relating to enforceability and (ii) rights to indemnification and contribution hereunder
may be limited by applicable law and public policy considerations.
2.12. No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the
Final Prospectus (in each case exclusive of any amendment or supplement thereto), since the date of the most recent financial
statements included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Final
Prospectus: (i) there has been no material adverse change, or any development that could result in a material adverse change, in or
affecting the condition (financial or otherwise), earnings, business, properties, management, financial position,
stockholders’ equity, or results of operations, whether or not arising from transactions in the ordinary course of business,
of the Company and its subsidiaries, considered as a whole; (ii) there has been no change in the share capital (other than (A) the
issuance of Shares upon the exercise or settlement (including any “net” or “cashless” exercises or
settlements) of stock options, restricted stock units or warrants described as outstanding, (B) the grant of options and awards
under existing equity incentive plans, or (C) the repurchase of shares of Common Stock by the Company, which were issued pursuant to
the early exercise of stock options by option holders and are subject to repurchase by the Company, in each case, as described in
the Registration Statement, the Pricing Disclosure Package and the Final Prospectus), or material change in the short-term debt or
long-term debt of the Company or any of its subsidiaries, considered as a whole; and (iii) the Company and its subsidiaries,
considered as a whole, have not incurred any material liability or obligation, indirect, direct or contingent (whether or not in the
ordinary course of business); nor entered into any transaction or agreement (whether or not in the ordinary course of business) that
is material to the Company and its subsidiaries, considered as a whole; and (iv) there has been no dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company or, except for reoccurring dividends on the Company’s Series
1 Preferred Stock, dividends paid to the Company or other subsidiaries of the Company, any of its subsidiaries on any class of
capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
2.13. Organization and Good Standing
of the Company and its Subsidiaries. The Company and each of its subsidiaries have been duly incorporated and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority (corporate and other) necessary to own, lease or hold their respective properties
and to conduct the businesses in which they are engaged as described in the Registration Statement, the Pricing Disclosure Package and
the Final Prospectus, except where the failure to be in good standing, to be so qualified or to have such power or authority could not,
individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business, properties,
management, financial position, stockholders’ equity, or results of operations of the Company and its subsidiaries, considered as
a whole, or adversely affect the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”).
2.14. Capitalization. The capitalization
of the Company is as set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the heading
“Capitalization”. All of the outstanding capital stock of the Company has been duly authorized and validly issued and is fully
paid and non-assessable. The Securities have been duly authorized and, when issued and paid for as contemplated herein, will be validly
issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such
holders; the Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the
Securities has been duly and validly taken. None of the outstanding shares of Common Stock of the Company were issued in violation of
any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. Except
as disclosed in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus,
there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to acquire,
or instruments convertible into or exchangeable or exercisable for, any Shares of, or other equity interest in, the Company or any of
its subsidiaries. All of the outstanding shares of, or other equity interest in, each of the Company’s subsidiaries (i) have been
duly authorized and validly issued, (ii) are fully paid and non-assessable and (iii) are owned by the Company, directly or through the
Company’s subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, charge, claim or restriction
on voting or transfer (collectively, “Liens”).
2.15. Common
Stock Incentive Plans. With respect to the Common Stock options (the “Stock Options”) granted
pursuant to the Common Stock-based compensation plans of the Company and its subsidiaries (the “Company Common Stock
Incentive Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section
422 of the Internal Revenue Code of 1986, as amended (the “Code”), so qualifies, (ii) each grant of a
Stock Option was duly authorized by all necessary corporate action, including, as applicable, approval by the board of directors of
the Company (or a duly constituted and authorized committee thereof) and any required stockholders approval by the necessary number
of votes or written consents, and the award agreement governing such grant (if any), to the Company’s knowledge, was duly
executed and delivered by each party thereto, (iii) each such grant was made in all material respects in accordance with the terms
of the Company Common Stock Incentive Plans, and (iv) each such grant was properly accounted for in accordance with United States
generally accepted accounting principles applied on a consistent basis during the periods involved
(“GAAP”) in the financial statements (including the related notes) of the Company.
2.16. No Violation or Default.
Neither the Company nor any of its subsidiaries is: (i) in violation of its charter, by-laws or similar organizational documents; (ii)
in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement,
contract, undertaking or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute applicable to the Company or any of its subsidiaries or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, or
any of their respective properties or assets, except, in the case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
2.17. No
Conflicts. None of (i) the execution, delivery and performance of this Agreement by the Company, (ii) the issuance, sale and
delivery of the Closing Units or the Option Securities, (iii) the application of the proceeds of the offering as described under
“Use of Proceeds” in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, or (iv) the
consummation of the transactions contemplated herein will: (x) result in any violation of the terms or provisions of the charter,
by-laws or similar organizational documents of the Company or any of its subsidiaries; (y) conflict with, result in a breach or
violation of, or require the approval of stockholders, members or partners or any approval or consent of any persons under, any of
the terms or provisions of, constitute a default under, result in the termination, modification, or acceleration of, or result in
the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement, note agreement, contract, undertaking or other
agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is
subject; or (z) result in the violation of any law, statute, judgment, order, rule, decree or regulation applicable to the Company
or any of its subsidiaries of any court, arbitrator, governmental or regulatory authority, agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective properties or assets.
2.18. No
Consents Required. No consent, approval, authorization, order, filing, registration, license or qualification of or with any
court, arbitrator, or governmental or regulatory authority, agency, or body is required for (i) the execution, delivery and
performance by the Company of this Agreement; (ii) the issuance, sale and delivery of the Securities; or (iii) the consummation of
the transactions contemplated herein, except for such consents, approvals, authorizations, orders, filings, registrations or
qualifications as (x) have already been obtained or made and are still in full force and effect, (y) may be required by FINRA and
the Nasdaq Capital Market, and (z) may be required under applicable state securities laws in connection with the purchase,
distribution and resale of the Securities by the Underwriter.
2.19. Independent Accountants.
Grassi & Co., CPAs, P.C., 50 Jericho Quadrangle, Ste. 200, Jericho, NY 11753, which expressed its opinion with respect to the financial
statements (which term as used in this Agreement includes the related notes thereto) and supporting schedules included in the Registration
Statement, the Pricing Disclosure Package and the Final Prospectus, is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the meaning of the rules and regulations of the Commission and the Public Company Accounting Oversight
Board and as required by the Securities Act.
2.20. Financial Statements and Other
Financial Data. The financial statements (including the related notes thereto), together with the supporting schedules, included
in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus comply in all material respects with the applicable
requirements of the Securities Act and present fairly the consolidated financial position of the entities to which they relate as of and
at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements, notes
and schedules have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved, except as may
be expressly stated in the notes thereto and except, in the case of unaudited interim financial statements, subject to normal year end
audit adjustments and the exclusion of certain footnotes as permitted by the applicable rules of the Commission. The financial data set
forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the captions “Capitalization”
present fairly the information set forth therein on a basis consistent with that of the audited financial statements included in the Registration
Statement, the Pricing Disclosure Package and the Final Prospectus.
2.21. Statistical and Market-Related
Data. The statistical and market-related data included in the Registration Statement, the Pricing Disclosure Package and the Final
Prospectus are based on or derived from sources that the Company reasonably and in good faith believes to be accurate and reliable in
all material respects.
2.22. Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included in
the Registration Statement, the Pricing Disclosure Package or the Final Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
2.23. Legal Proceedings. Except
as disclosed in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, (i) there are no legal, governmental
or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (collectively, “Actions”)
pending to which the Company or any of its subsidiaries is or may be a party or to which any property, right or asset of the Company or
any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any
of its subsidiaries, could have a Material Adverse Effect; and (ii) to the knowledge of the Company, no such Actions are threatened or
contemplated by any governmental or regulatory authority or by others.
2.24. Labor Disputes. No labor
disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is
threatened or contemplated that could, individually or in the aggregate, have a Material Adverse Effect.
2.25. Intellectual Property Rights.
(i) The Company and its subsidiaries own or have the right to use all patents, patent applications, trademarks, service marks, trade names,
and other source indicators and registrations and applications for registration thereof, domain name registrations, copyrights and registrations
and applications for registration thereof, technology and know-how, trade secrets, and all other intellectual property and related proprietary
rights (collectively, “Intellectual Property Rights”) necessary to conduct their respective businesses; (ii)
other than as disclosed in the Prospectus, neither the Company nor any of its subsidiaries has received any notice of infringement, misappropriation
or other conflict with (and neither the Company nor any of its subsidiaries is otherwise aware of any infringement, misappropriation or
other conflict with) the Intellectual Property Rights of any other person, except for such infringement, misappropriation or other conflict
as could not have a Material Adverse Effect; and (iii) to the knowledge of the Company, the Intellectual Property Rights of the Company
and its subsidiaries are not being infringed, misappropriated or otherwise violated by any person.
2.26. Licenses and Permits.
(i) The Company and its subsidiaries possess such valid and current certificates, authorizations, approvals, licenses and permits (collectively,
“Authorizations”) issued by, and have made all declarations, amendments, supplements and filings with, the appropriate
state, federal or foreign regulatory agencies or bodies necessary to own, lease and operate their respective properties and to conduct
their respective businesses as set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; (ii)
all such Authorizations are valid and in full force and effect and the Company and its subsidiaries are in compliance with the terms and
conditions of all such Authorizations; and (iii) neither the Company nor any of its subsidiaries has received notice of any revocation,
termination or modification of, or non- compliance with, any such Authorization or has any reason to believe that any such Authorization
will not be renewed in the ordinary course, except where, in the case of clauses (i), (ii) and (iii), the failure to possess, make or
obtain such Authorizations (by possession, declaration or filing) could not, individually or in the aggregate, have a Material Adverse
Effect.
2.27. Title to Property. The
Company and its subsidiaries have good and marketable title to, or have valid and enforceable rights to lease or otherwise use, all items
of real property and personal property (other than with respect to Intellectual Property Rights, which is addressed exclusively in Section
2.25) that are material to the respective businesses of the Company and its subsidiaries, in each case, free and clear of all liens, encumbrances,
claims, and defects and imperfections of title, except such liens, encumbrances, claims, defects and imperfections as (i) are disclosed
in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, or (ii) do not materially affect the value of
such property and do not materially interfere with the use made or proposed to be made of such property by the Company and its subsidiaries.
The Company and its subsidiaries have good and marketable title to, or have valid and enforceable rights to lease or otherwise use, all
items of real and personal property that are material to the respective businesses of the Company and its subsidiaries, in each case,
free and clear of all liens, encumbrances, claims and defects and imperfections of title, except such liens, encumbrances, claims, defects
and imperfections as (i) are disclosed in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, or (ii)
do not materially affect the value of such property and do not materially interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries. All items of real and personal property held under lease by the Company and its subsidiaries are
held under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere with the use made or proposed
to be made of such property by the Company and its subsidiaries.
2.28. Taxes. The Company and
each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date hereof or
have timely requested extensions thereof and have paid all taxes required to be paid thereon (except as currently being contested in good
faith and for which reserves required by GAAP have been created in the financial statements of the Company). The charges, accruals and
reserves in respect of any income and other tax liability in the financial statements of the Company referred to in Section 2.20 are adequate,
in accordance with GAAP principles, to meet any assessments for any taxes of the Company accruing through the end of the last period specified
in such financial statements.
2.29. Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Closing Units hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small
capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and
capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive,
were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all
amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts
beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in
respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date.
The Registration Statement sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any
Subsidiary, or for which the Company or any Subsidiary has commitments. Neither the Company nor any Subsidiary is in default with
respect to any Indebtedness.
2.30. Investment Company Act.
Neither the Company nor any of its subsidiaries is or, after giving effect to the offer and sale of the Securities and the application
of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement, the Pricing Disclosure Package
and the Final Prospectus, will be required to register as an “investment company” (as defined in the Investment Company Act).
2.31. Insurance. The Company
and its subsidiaries are insured by recognized, financially sound institutions in such amounts, with such amounts, with such deductibles
and covering such losses and risks as the Company reasonably believes to be adequate for the conduct of their respective businesses and
the value of their respective properties and as is prudent and customary for companies engaged in similar businesses in similar industries.
All insurance policies and fidelity or surety bonds insuring the Company and its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such
policies in all material respects; neither the Company nor any of its subsidiaries has received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required to be made in order to continue such insurance; and neither the Company
nor any of its subsidiaries has been refused any insurance coverage sought or applied for. There are no claims by the Company or any of
its subsidiaries under any such policy as to which any insurer is denying liability or defending under a reservation of rights clause;
and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that could not have a Material Adverse Effect.
2.32. No Stabilization or Manipulation.
None of the Company, nor its Affiliates, or, to the knowledge of the Company, any person acting on its or any of their behalf (other than
the Underwriter, as to which no representation or warranty is given) has taken, directly or indirectly, any action designed to or that
has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities
of the Company. The Company acknowledges that the Underwriter may engage in passive market making transactions in the Common Stock on
the Nasdaq Capital Market (the “Exchange”) in accordance with Regulation M under the Exchange Act (“Regulation
M”).
2.33. Compliance with the Sarbanes-Oxley
Act. The Company and, to the knowledge of the Company, its officers and directors, in their capacities as such, are and have been
in compliance with all applicable provisions of the Sarbanes-Oxley Act.
2.34. Accounting Controls.
The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f)
of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their
principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The
Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Other than as disclosed
in the Registration Statement, the Company maintains a system of internal control over financial reporting and the Company is not aware
of any other material weaknesses in its internal control over financial reporting (whether or not remediated). Other than as disclosed
in the Registration Statement, since the date of the most recent balance sheet included in the Registration Statement, the Pricing Disclosure
Package and the Final Prospectus, (x) the Company’s auditors and the board of directors of the Company have not been advised of
(A) any new significant deficiencies or material weaknesses in the design or operation of the internal control over financial reporting
of the Company and its subsidiaries which could adversely affect the Company’s ability to record, process, summarize, and report
financial data; or (B) any fraud, whether or not material, that involves management or other employees who have a role in the internal
control over financial reporting of the Company or its subsidiaries; and (y) there have been no significant changes in the internal control
over financial reporting of the Company or its subsidiaries or in other factors that could significantly affect, such internal control
over financial reporting, including any corrective actions with regard to significant deficiencies or material weaknesses, since the respective
dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus.
2.35. Disclosure Controls and Procedures.
The Company and its subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e)
under the Exchange Act) that are designed to comply with the requirements of the Exchange Act; such disclosure controls and procedures
are designed to ensure that information required to be disclosed by the Company and its subsidiaries in the reports they file or submit
under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules
and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure; and such disclosure controls and procedures are effective
to perform the functions for which they were established.
2.36. Compliance with Environmental
Laws. The Company and each of its subsidiaries (i) are, and at all times prior hereto were, in compliance with all Environmental
Laws (as defined below) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying
with all permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses; and (ii) have
not received notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws, or of any actual or potential
liability for or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, and, except as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, (x)
there are no proceedings that are pending, or known to be contemplated, against the Company or any of its subsidiaries under Environmental
Laws, other than such proceedings regarding which would not, individually or in the aggregate, have a Material Adverse Effect; (y) to
the knowledge of the Company, none of the Company or any of its subsidiaries is aware of any issues regarding compliance with Environmental
Laws, including any pending or proposed Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the
capital expenditures, earnings or competitive position of the Company and its subsidiaries; and (z) none of the Company or any of its
subsidiaries anticipates material capital expenditures relating to Environmental Laws. As used herein, the term “Environmental
Laws” means any laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of
any governmental authority, including, without limitation, any international, foreign, national, state, provincial, regional, or local
authority, relating to pollution, the protection of human health or safety, the environment, or natural resources, or to the use, handling,
storage, manufacturing, transportation, treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants.
2.37. ERISA.
Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as
amended (“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as
any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Code) would have
any liability (each, a “Plan”) complies in form with the requirements of all applicable statutes, rules
and regulations including ERISA and the Code, and has been maintained and administered in substantial compliance with its terms and
with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with respect to each Plan
subject to Title IV of ERISA or Section 302 of ERISA or Section 412 and 430 of the Code (A) no “reportable event”
(within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no failure to satisfy the
minimum funding standard (within the meaning of Section 302 of ERISA or Section 412 and 430 of the Code), whether or not waived, has
occurred or is reasonably expected to occur, (C) the fair market value of the assets under each Plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan) and (D) neither the Company or any member of its Controlled Group has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit
Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”,
within the meaning of Section 4001(a)(3) of ERISA); (iii) each Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such
qualification; and (iv) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any Plan excluding transactions to which a statutory or administrative prohibited transaction exemption
applies.
2.38. Related Party Transactions.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, no relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders,
other Affiliates, customers or suppliers of the Company or any of its subsidiaries, on the other hand, that would be required by the Securities
Act to be described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus.
2.39. No Unlawful Contributions or
Other Payments. Neither the Company nor any of its subsidiaries, nor any director, officer of the Company, nor, to the knowledge
of the Company, any agent, employee, Affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic government or regulatory official or employee; (iii) made
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) violated or is in violation of any provision
of (y) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
or (z) any non-U.S. anti-bribery or anti- corruption statute or regulation. The Company and its subsidiaries have instituted and maintain
and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
2.40. Compliance with Anti-Money Laundering
Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the applicable anti-money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conduct business,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect
to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
2.41. Compliance with OFAC.
Neither the Company nor any of its subsidiaries nor any director, officer of the Company, nor, to the knowledge of the Company, any agent,
employee or Affiliate of the Company or any of its subsidiaries is an individual or entity (an “OFAC Person”),
or is owned or controlled by an OFAC Person, that is currently the subject or target of any sanctions administered or enforced by the
U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”)
or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or
“blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized
or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea, Cuba, Iran,
North Korea, Sudan and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other OFAC Person (i) to fund or facilitate any activities of or business with any OFAC Person that, at the time of such funding or
facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities or business in any Sanctioned Country
or (iii) in any other manner that will result in a violation by any OFAC Person (including any OFAC Person participating in the transaction,
whether as underwriter, advisor, investor or otherwise) of Sanctions. Since the Company’s inception, the Company and its subsidiaries
have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any OFAC Person that at the time
of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
2.42. No Registration Rights.
Except as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, there are no contracts, agreements
or understandings between the Company or any of its subsidiaries, on the one hand, and any person, on the other hand, granting such person
any rights to require the Company or any of its subsidiaries to file a registration statement under the Securities Act with respect to
any securities of the Company or any of its subsidiaries owned or to be owned by such person or to require the Company or any of its subsidiaries
to include such securities in any securities to be registered pursuant to any registration statement to be filed by the Company or any
of its subsidiaries under the Securities Act.
2.43. Subsidiaries. The subsidiaries of the
Company shall be referred to hereinafter each as a “Subsidiary” and collectively as “Subsidiaries.”
The description of the corporate structure of the Company and each of the agreements among the Subsidiaries as set forth in the Registration
Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Corporate History and Structure” filed
as Exhibit 21.1 to the Registration Statement is true and accurate in all material respects and nothing has been omitted from such description
which would make it misleading. The Subsidiaries of the Company listed in Schedule 2.43 hereto are the only “significant subsidiaries”
(as defined under Rule 1.02(w) of Regulation S-X under the Securities Act) of the Company (the “Significant Subsidiaries”).
2.44. No Restrictions on Subsidiaries.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, no Subsidiary of the Company
is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such
Subsidiary’s share capital or similar ownership interest, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary’s properties or assets to the Company or any other Subsidiary of the
Company.
2.45. Exchange Listing. The
Common Stock is listed on the Exchange, and the Company has taken no action designed to, or likely to have the effect of, delisting the
Common Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing,
except as described in the Registration Statement, the Disclosure Package and the Prospectus.
2.46. Exchange Act Registration.
The Common Stock is registered pursuant to Section 12(b) under the Exchange Act. The Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Common Stock under the Exchange Act, nor has the Company received any notification
that the Commission is contemplating terminating such registration.
2.47. Prior Securities Transactions.
No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling,
controlled by or under common control with the Company, except as disclosed in the Registration Statement, the Disclosure Package and
the Prospectus.
2.48. Application of Takeover Protections.
The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under
the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could
become applicable as a result of the Underwriter and the Company fulfilling their obligations or exercising their rights hereunder (including
documents incorporated herein by reference or attached hereto).
2.49. D&O Questionnaires.
To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”) completed
by each of the Company’s directors, officers and beneficial holders of 5% or more of the Company’s Common Stock immediately
prior to the Offering as supplemented by all information concerning the Company’s directors, officers and principal stockholders
as described in the Registration Statement, the Disclosure Package and the Prospectus, provided to the Underwriter is true and correct
in all material respects and the Company has not become aware of any information which would cause the information disclosed in the Questionnaires
to become inaccurate and incorrect in any material respect.
2.50. No Integrated Offering.
Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Closing
Units to be integrated with prior offerings by the Company for purposes of any applicable stockholder approval provisions of any Trading
Market on which any of the securities of the Company are listed or designated.
2.51. Litigation; Governmental Proceedings.
There is no material action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending or,
to the Company’s knowledge, threatened against, or involving the Company, any of its Subsidiaries or, to the Company’s knowledge,
any executive officer or director which has not been disclosed in the Registration Statement, the Disclosure Package and the Prospectus
which is required to be disclosed.
2.52.
FINRA Matters.
2.52.1. No Broker’s
Fees. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, neither the
Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement)
that would give rise to a valid claim against any of them or the Underwriter for a brokerage commission, finder’s fee or like payment
in connection with the offering and sale of the Securities.
2.52.2. Payments
Within Six (6) Months. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company
has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting
fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or
provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association
with any FINRA member, within the six (6) months prior to the initial filing of the Registration
Statement, other than the payment to the Underwriter as provided hereunder in connection with the Offering.
2.52.3. Use of
Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates,
except as specifically authorized herein.
2.52.4. FINRA Affiliation.
There is no (i) officer or director of the Company, (ii) to the Company’s knowledge, any beneficial owner of 10% or more of any
class of the Company’s securities or (iii) to the Company’s knowledge, any beneficial owner of the Company’s unregistered
equity securities which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that is
an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations
of FINRA).
2.52.5. Information.
All information provided by the Company in its FINRA questionnaire to underwriter’s counsel specifically for use by underwriter’s
counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all
material respects.
3. |
Representations and Warranties of the Underwriter. The Underwriter represents and warrants to, and agrees with, the Company: |
3.1. No Testing-the-Waters Communications.
The Underwriter has not (i) alone engaged in any Testing-the-Waters Communication and (ii) authorized anyone to engage in Testing-the-Waters
Communications. The Underwriter has not distributed, or authorized anyone else to distribute, any Written Testing-the-Waters Communications.
4.1. Agreements to Sell and Purchase.
On the basis of the representations, warranties and covenants herein and subject to the conditions herein and any adjustments made in
accordance with Section 4.3 hereof,
4.1.1. The
Company agrees to issue and sell the Closing Units to the Underwriter; and
4.1.2. The
Underwriter agrees to purchase from the Company the number of Closing Units set forth
opposite the Underwriter’s name in Schedule 4.1.2 hereto, subject to such adjustments as the Underwriter in its sole
discretion shall make to eliminate any sales or purchases of fractional Shares.
4.1.3. The Closing Units
are to be offered initially to the public at the offering price set forth on the cover page of the Final Prospectus (the “Public
Offering Price”). The purchase price per Closing Unit to be paid by the Underwriter to the Company shall be $0.786 per Unit
(the “Purchase Price”), which represents the Public Offering Price less an underwriting discount of 7.0% and
a non-accountable expense allowance of 0.5%.
4.1.4. Payment for the
Closing Units (the “Closing Units Payment”) shall be made by wire transfer in immediately available funds to
the accounts specified by the Company to the Underwriter at the offices of Kaufman & Canoles, P.C. at 10:00 a.m., ET, on May 3, 2024
or at such other place on the same or such other date and time, not later than the fifth (5th) Business Day thereafter, as the Underwriter
and the Company may agree upon in writing (the “Closing Date”). The Closing Units Payment shall be made against
delivery of the Closing Units to be purchased on the Closing Date to the Underwriter with any transfer taxes, stamp duties and other similar
taxes payable in connection with the sale of the Closing Units duly paid by the Company.
4.2.
Over-Allotment Option.
4.2.1. On the basis of
the representations, warranties and covenants herein and subject to the conditions herein, the Underwriter is hereby granted an option
(the “Over- Allotment Option”) to purchase, in the aggregate, up to 1,764,705 additional shares of Common Stock,
representing 15.0% of the Closing Units and/or Pre-funded Warrants sold in the offering from the Company (the “Option Shares”)
and/or up to 1,764,705 Series A Warrants to purchase an aggregate of an additional 1,764,705 shares of Common Stock, representing 15.0%
of the Closing Units sold in the offering from the Company; and 1,764,705 Series B Warrants to purchase an aggregate of an additional
1,764,705 shares of Common Stock, representing 15.0% of the Closing Units sold in the offering from the Company (the “Option
Warrants”). The purchase price to be paid per Option Share shall be equal to the price per Closing Unit set forth in Section
4.1 hereof (less $0.01 attributable to each whole Option Warrant included in the Closing Unit) and the purchase price to be paid per Option
Warrant shall be equal to $0.01 per Option Warrant. The Over-allotment Option is, at the Underwriter’s sole discretion, for Option
Shares and Option Warrants together, solely Option Shares, solely Option Warrants, or any combination thereof (each, an “Option
Security” and collectively, the “Option Securities”). The Closing Units and the Option Securities
are collectively referred to as the “Securities”. The Securities and the shares of Common Stock issuable upon
exercise of the Pre-funded Warrants and the Warrants (the “Underlying Shares”), are collectively referred to
as the “Public Securities.” The Public Securities shall be issued directly by the Company and shall have the
rights and privileges described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. The Closing Warrants
and the Option Warrants, if any, shall be issued pursuant to, and shall have the rights and privileges set forth in, the form of Warrant,
and the Closing Pre-funded Warrants shall be issued pursuant to, and shall have the rights and privileges set forth in, the form of Pre-funded
Warrant. The offering and sale of the Public Securities is herein referred to as the “Offering”.
4.2.2. upon an exercise
of the Over-Allotment Option and subject to the terms and conditions herein, the Company agrees to issue and sell the Option Securities
to the Underwriter;
4.2.3. The Underwriter
may exercise the Over-Allotment Option at any time in whole, or from time to time in part, on or before the forty-fifth (45th) day following
the date of the Final Prospectus, by written notice from the Underwriter to the Company (the “Over-Allotment Exercise Notice”).
The Underwriter must give the Over-Allotment Exercise Notice to the Company at least two (2)
Business Days prior to the Closing Date or the applicable Additional Closing Date, as the case may be. The Underwriter may cancel any
exercise of the Over-Allotment Option at any time prior to the Closing Date or the applicable Additional Closing Date, as the case may
be, by giving written notice of such cancellation to the Company.
4.2.4. The Over-Allotment
Exercise Notice shall set forth each of the following:
4.2.4.1 the aggregate number of Option Securities
as to which the Over- Allotment Option is being exercised.
4.2.4.2 the Over-Allotment
Option Purchase Price.
4.2.4.3 the names and denominations in which
the Option Securities are to be registered.
4.2.4.4 the applicable Additional Closing
Date, which may be the same date and time as the Closing Date but shall not be earlier than the Closing Date nor later than the tenth
(10th) full Business Day after the date of the Over- Allotment Exercise Notice.
4.2.5. Payment for the
Option Securities (the “Option Securities Payment”) shall be made by wire transfer in immediately available
funds to the accounts specified by the Company to the Underwriter at the offices of Kaufman & Canoles, P.C. at 10:00 a.m. ET on the
date specified in the corresponding Over-Allotment Exercise Notice, or at such other place on the same or such other date and time, not
later than the fifth Business Day thereafter, as the Underwriter and the Company may agree upon in writing (an “Additional
Closing Date”). The Option Securities Payment shall be made against delivery to the Underwriter for the respective accounts
of the Underwriter of the Option Securities to be purchased on any Additional Closing Date, with any transfer taxes, stamp duties and
other similar taxes payable in connection with the sale of the Option Securities duly paid by the Company. Delivery of the Option Securities
shall be made through the facilities of DTC unless the Underwriter shall otherwise instruct.
4.3. Public Offering. The Company
understands that the Underwriter intends to make a public offering of the Units as soon after the effectiveness of this Agreement as in
the judgment of the Underwriter is advisable, and initially to offer the Units on the terms set forth in the Final Prospectus. The Company
acknowledges and agrees that the Underwriter may offer and sell Units to or through any Affiliate of the Underwriter.
5. |
Covenants of the Company. The Company hereby covenants and agrees with the Underwriter as follows: |
5.1. Filings
with the Commission. The Company will:
5.1.1. prepare and file
the Final Prospectus (in a form approved by the Underwriter and containing the Rule 430A Information) with the Commission in accordance
with and within the time periods specified by Rules 424(b) and 430A under the Securities Act.
5.1.2. file any Issuer
Free Writing Prospectus with the Commission to the extent required by Rule 433 under the Securities Act.
5.1.3. file with the
Commission such reports as may be required by Rule 463 under the Securities Act.
5.2. Notice to the Underwriter.
The Company will advise the Underwriter promptly, and confirm such advice in writing:
5.2.1. when the Registration
Statement has become effective.
5.2.2. when the Final
Prospectus has been filed with the Commission.
5.2.3. when any amendment
to the Registration Statement has been filed or becomes effective.
5.2.4. when any Rule
462(b) Registration Statement has been filed with the Commission.
5.2.5. when any supplement
to the Final Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or any amendment to the Final
Prospectus has been filed or distributed.
5.2.6. of (x) any request
by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus, (y) the receipt
of any comments from the Commission relating to the Registration Statement or (z) any other request by the Commission for any additional
information, including, but not limited to, any request for information concerning any Testing-the-Waters Communication.
5.2.7. of (x) the issuance
by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Registration
Statement, the Pricing Disclosure Package, the Final Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus or any
Written Testing-the- Waters Communication or (y) the initiation or, to the knowledge of the Company, threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act.
5.2.8. of the occurrence
of any event or development within the Prospectus Delivery Period as a result of which, the Final Prospectus, the Pricing Disclosure Package,
any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
existing when the Final Prospectus, the Pricing Disclosure Package, any such Issuer Free Writing Prospectus or any such Written Testing-the-Waters
Communication is delivered to a purchaser, not misleading.
5.2.9. of the issuance
by any governmental or regulatory authority or any order preventing or suspending the use of any of the Registration Statement, the Pricing
Disclosure Package, the Final Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus or any Testing-the-Waters Communication
or the initiation or threatening for that purpose.
5.2.10. of the receipt
by the Company of any notice with respect to any suspension of the qualification of the Units for offer and sale in any jurisdiction or
the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose.
5.3.
Ongoing Compliance.
5.3.1. If during the
Prospectus Delivery Period:
5.3.1.1 any event or development shall occur
or condition shall exist as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances
existing when the Final Prospectus is delivered to a purchaser, not misleading, the Company will, as soon as reasonably possible, notify
the Underwriter thereof and forthwith prepare and, subject to Section 5.4 hereof, file with the Commission and furnish, at its own expense,
to the Underwriter and to such dealers as the Underwriter may designate such amendments or supplements to the Final Prospectus as may
be necessary so that the statements in the Final Prospectus as so amended or supplemented will not, in the light of the circumstances
existing when the Final Prospectus is delivered to a purchaser, be misleading; or
5.3.1.2 it is necessary to amend or supplement
the Final Prospectus to comply with applicable law, the Company will, as soon as reasonably possible, notify the Underwriter thereof and
forthwith prepare and, subject to Section 5.4 hereof, file with the Commission and furnish, at its own expense, to the Underwriter and
to such dealers as the Underwriter may designate such amendments or supplements to the Final Prospectus as may be necessary so that the
Final Prospectus will comply with applicable law; and
5.3.2. if at any time
prior to the Closing Date or any Additional Closing Date, as the case may be:
5.3.2.1 any event or development shall occur
or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading, the Company will immediately notify
the Underwriter thereof and forthwith prepare and, subject to Section 5.4 hereof, file with the Commission (to the extent required) and
furnish, at its own expense, to the Underwriter and to such dealers as the Underwriter may designate such amendments or supplements to
the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented
will not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading; or
5.3.2.2 it is necessary to amend
or supplement the Pricing Disclosure Package to comply with applicable law, the Company will immediately notify the Underwriter
thereof and forthwith prepare and, subject to Section 5.4 hereof, file with the Commission (to the extent required) and furnish, at
its own expense, to the Underwriter and to such dealers as the Underwriter may designate such amendments or supplements to the
Pricing Disclosure Package as may be necessary so that the Pricing Disclosure Package will comply with applicable law.
5.4. Amendments, Supplements and Issuer
Free Writing Prospectuses. Before (i) using, authorizing, approving, referring to, distributing or filing any Issuer Free Writing
Prospectus, (ii) filing (x) any Rule 462(b) Registration Statement or (y) any amendment or supplement to the Registration Statement or
the Final Prospectus, or (iii) distributing any amendment or supplement to the Pricing Disclosure Package or the Final Prospectus, the
Company will furnish to the Underwriter and counsel for the Underwriter a copy of the proposed Issuer Free Writing Prospectus, Rule 462(b)
Registration Statement or other amendment or supplement for review and will not use, authorize, refer to, distribute or file any such
Issuer Free Writing Prospectus or Rule 462(b) Registration Statement, or file or distribute any such proposed amendment or supplement
(A) to which the Underwriter objects in a timely manner and (B) which is not in compliance with the Securities Act. The Company will,
pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with
the Commission in accordance with Rule 433 under the Securities Act.
5.5. Delivery of Copies. The
Company will, upon request of the Underwriter, deliver, without charge, (i) to the Underwriter, three signed copies of the Registration
Statement as originally filed and each amendment thereto, in each case, including all exhibits and consents filed therewith; and (ii)
to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits
and consents) and (B) during the Prospectus Delivery Period, as many copies of the Final Prospectus (including all amendments and supplements
thereto and each Issuer Free Writing Prospectus) as the Underwriter may reasonably request.
5.6. Blue Sky Compliance. The
Company will use its best efforts, with the Underwriter’s cooperation, if necessary, to qualify or register (or to obtain exemptions
from qualifying or registering) the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriter
shall reasonably request and will use its reasonable best efforts, with the Underwriter’s cooperation, if necessary, to continue
such qualifications, registrations and exemptions in effect so long as required for the distribution of the Units; provided that
the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction
where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
5.7. Earning Statement. The
Company will make generally available to its security holders and the Underwriter as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act covering a period of at least 12 months beginning
after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement; provided
that the Company will be deemed to have furnished such statement to its security holders and the Underwriter to the extent it is filed
on the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
5.8. Stockholder Approval.
The Company shall obtain a written consent resolution of the majority of the voting power of the Company, at the earliest practicable
date after the date hereof, but in no event later than twenty (20) days after the Closing Date for the purpose of obtaining Stockholder
Approval, if required, to effect the purpose thereof, with the recommendation of the Board that such proposal be approved and within such
twenty- day time period shall file with the Commission, and deliver to shareholders of the Company, a written information statement containing
the information specified in Schedule 14C detailing such Stockholder Approval. The Company shall use its reasonable best efforts to obtain
such Stockholder Approval, and officers, directors, and shareholders subject to the Lock-Up Agreement shall vote in favor of such proposal.
“Stockholder Approval” shall mean those actions set forth in the definition of “Stockholder Approval”
in the Series A Warrants and the Series B Warrants.
5.9. Use of Proceeds. The Company
shall apply the net proceeds from the sale of the Closing Units and the Option Securities in the manner described under the caption “Use
of Proceeds” in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus.
5.10.
Clear Market.
5.10.1. For a period
of ninety (90) days after the Closing Date (the “Standstill Period”), the Company will not (x) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the
Securities Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of
Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (y) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or any
such other securities, whether any such transaction described in clause (x) or (y) above is to be settled by delivery of shares of Common
Stock or such other securities, in cash or otherwise, without the prior written consent of the Underwriter.
5.10.2. The restrictions
contained in Section 5.10.1 hereof shall not apply to: (A) the Units, (B) any shares of Common Stock issued under Company Common Stock
Incentive Plans or warrants issued by the Company, in each case, described as outstanding in the Registration Statement, the Pricing Disclosure
Package and the Final Prospectus, (C) any options and other awards granted under a Company Common Stock Incentive Plan as described in
the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit any registration statement in connection
therewith to be filed publicly or declared effective during the Standstill Period (D) the amendment of a Company Common Stock Incentive
Plan as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, (E) the filing by the Company
of any registration statement on Form S-8 or a successor form thereto relating to a Company Common Stock Incentive Plan described in the
Registration Statement, the Pricing Disclosure Package and the Final Prospectus and (F) shares of Common Stock or other securities issued
pursuant to acquisitions or strategic transactions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization
or otherwise) approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement
in connection therewith during the Standstill Period, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities; provided, however, that any such shares of Common Stock or other securities issued
or granted pursuant to clauses (B), (C) and (F) during the Standstill Period shall not be saleable in the public market until the expiration
of the Standstill Period.
5.10.3. If the Underwriter,
in its sole discretion, agrees to release or waive the restrictions set forth in any Lock-Up Agreement as described in Section 8.9 and
provides the Company with notice of the impending release or waiver substantially in the form of Exhibit 5.10.3.1 hereto
at least three (3) Business Days before the effective date of the release or waiver, then the Company agrees to announce the impending
release or waiver by a press release substantially in the form of Exhibit 5.10.3.2 hereto through a major news service at
least two (2) Business Days before the effective date of the release or waiver.
5.11. No Stabilization or Manipulation.
None of the Company, its Affiliates or any person acting on its or any of their behalf (other than the Underwriter, as to which no covenant
is given) will take, directly or indirectly, any action designed to or that constitutes or that could reasonably be expected to cause
or result in the stabilization or manipulation of the price of any securities of the Company. The Company acknowledges that the Underwriter
may engage in passive market making transactions in the Common Stock on the Exchange in accordance with Regulation M.
5.12. Investment Company Act.
The Company shall not invest, or otherwise use the proceeds received by the Company from the sale of the Closing Units or the Option Securities
in such a manner as would require the Company or any of its subsidiaries to register as an “investment company” (as defined
in the Investment Company Act) under the Investment Company Act.
5.13. Transfer Agent. For the
period of two years from the date of this Agreement, the Company shall engage and maintain, at its expense, a registrar and transfer agent
for the Common Stock.
5.14. Reports. For the period
of two years from the date of this Agreement, the Company will furnish to the Underwriter, as soon as they are available, copies of all
reports or other communications (financial or other) furnished to holders of the Common Stock, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided
that the Company will be deemed to have furnished such reports and financial statements to the Underwriter to the extent they are filed
on the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
5.15. Right
of First Refusal. The Company agrees that, if, for the period ending fifteen (15)
months after the Closing Date, the Company or any of its subsidiaries: (a) decides to finance or refinance any indebtedness, the
Underwriter (or any affiliate designated by the Underwriter) shall have the right to act as sole book-runner, sole manager, sole
placement agent or sole agent with respect to such financing or refinancing; or (b) decides to raise funds by means of a public
offering (including at-the-market facility) or a private placement or any other capital raising financing of equity, equity-linked
or debt securities, the Underwriter (or any affiliate designated by the Underwriter) shall have the right to act as sole
book-running manager, sole underwriter or sole placement agent for such financing. If the Underwriter or one of its affiliates
decides to accept any such engagement, the agreement governing such engagement (each, a “Subsequent Transaction
Agreement”) will contain, among other things, provisions for customary fees for transactions of similar size and
nature, but in no event will the fees be less than those outlined herein, and the provisions of this Agreement, including
indemnification, that are appropriate to such a transaction. Notwithstanding the foregoing, the decision to accept the
Company’s engagement under this Section 5.15 shall be made by the Underwriter or one of its affiliates, by a written notice to
the Company, within ten (10) days of the receipt of the Company’s notification of its financing needs, including a detailed
term sheet. The Underwriter’s determination of whether in any case to exercise its right of first refusal will be strictly
limited to the terms on such term sheet, and any waiver of such right of first refusal shall apply only to such specific terms. If
the Underwriter waives its right of first refusal, any deviation from such terms (including without limitation after the launch of a
subsequent transaction) shall void the waiver and require the Company to seek a new waiver from the right of first refusal on the
terms set forth in this Section 5.15.
6. |
Covenants of the Underwriter. The Underwriter hereby covenants and agrees with the Company as follows: |
6.1. Underwriter Free Writing Prospectus.
The Underwriter has not used, authorized the use of, referred to or participated in the planning for use of, and will not use, authorize
the use of, refer to or participate in the planning for use of, any Free Writing Prospectus (which term includes use of any written information
furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued
by the Company) other than (i) a Free Writing Prospectus that contains no “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act (“Issuer Information”) that was not included in the Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed in Schedule 2.5.4 hereto
or prepared pursuant to Section 2.5.4 or Section 5.4 hereof (including any electronic road show), or (iii) any Free Writing Prospectus
prepared by the Underwriter and approved by the Company in advance in writing.
6.2. Section 8A Proceedings.
The Underwriter is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering of the Units
and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period.
7.1. Company Expenses. The
Company hereby agrees to pay on the Closing Date all expenses incident to the performance of the obligations of the Company under this
Agreement including, but not limited to: (a) all filing fees and expenses relating to the registration of the Units with the Commission;
(b) all filing fees and expenses associated with the review of the offering of the Units by FINRA; (c) all fees and expenses relating
to the listing of the Shares and the Series A tradable Warrants and the Series B tradable Warrants on the Exchange (to the extent relevant)
or on such other stock exchanges as the Company and the Underwriter together determine; (d) all fees, expenses and disbursements relating
to the registration or qualification of the Units under the “blue sky” securities laws of such states and other jurisdictions
as the Underwriter may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable fees
and disbursements of the Company’s “blue sky” counsel, which will be Underwriter’s counsel) unless such filings
are not required in connection with the Company’s proposed Exchange listing; (e) all fees, expenses and disbursements relating to
the registration, qualification or exemption of the Securities under the securities laws of such foreign jurisdictions as the Underwriter
may reasonably designate; (f) the costs of all mailing and printing of the underwriting documents, the Registration Statement, Pricing
Disclosure Package, the Final Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus or any Testing-the-Waters Communication
and all amendments, supplements and exhibits thereto as the Underwriter may reasonably deem necessary; (g) the costs of preparing, printing
and delivering certificates representing the Shares; (h) fees and expenses of the transfer agent for the Shares; (i) transfer and/or stamp
taxes, if any, payable upon the transfer of securities from the Company to the Underwriter; (j) the fees and expenses of the Company’s
accountants; and (k) reasonable legal fees and disbursements for the Underwriter’s counsel.
The total amount payable by the Company pursuant to (k) to the Underwriter shall not exceed $100,000. The Underwriter may deduct from
the net proceeds of the Offering payable to the Company on the Closing Date the expenses set forth herein to be paid by the Company to
the Underwriter. Except as provided for in this Agreement, the Underwriter shall bear the costs and expenses incurred by them in connection
with the sale of the Units and the transactions contemplated thereby.
7.2. Non-accountable Expenses.
On the Closing Date, the Company shall pay to the Underwriter, by deduction from the net proceeds of the Offering a non-accountable expense
allowance equal to zero point five percent (0.5%) of the gross proceeds received by the Company from the sale of the Closing Units), provided,
however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriter pursuant to Section 12 hereof.
7.3. Underwriter Expenses.
Except to the extent otherwise provided in this Section 7 or Section 9 hereof, the Underwriter will pay all of its own costs and expenses,
including the fees and expenses of their counsel, any stock transfer taxes on resale of any of the Shares held by them, and any advertising
expenses connected with any offers they may make.
7.4. Company Reimbursement.
The provisions of this Section 7 shall not affect any agreement that the Company may make for the sharing of such costs and expenses.
8. |
Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Closing Units as provided herein on the Closing Date or the Option Securities as provided herein on any Additional Closing Date, as the case may be, shall be subject to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions: |
8.1.
Registration Compliance; No Stop Order.
8.1.1. The Registration
Statement and any post-effective amendment thereto shall have become effective, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto shall be in effect, and no proceeding for such purpose or pursuant to Section 8A of
the Securities Act shall be pending before or threatened by the Commission.
8.1.2. The Company shall
have filed the Final Prospectus and each Issuer Free Writing Prospectus with the Commission in accordance with and within the time periods
prescribed by Section 5.1 hereof.
8.1.3. The
Company shall have (A) disclosed to the Underwriter all requests by the Commission for additional information relating to the offer
and sale of the Units and (B) complied with such requests to the reasonable satisfaction of the Underwriter.
8.2. Representations and Warranties.
The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing
Date or any Additional Closing Date, as the case may be, and the statements of the Company and its officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing Date or any Additional Closing Date, as the case may be.
8.3. Auditor Comfort Letters.
On the date of this Agreement and on the Closing Date or any Additional Closing Date, as the case may be, Grassi & Co., CPAs, P.C.
shall have furnished to the Underwriter, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriter with respect to the financial statements and certain
financial information contained in each of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; provided
that the letter delivered on the Closing Date or any Additional Closing Date, as the case may be, shall use a “cut-off” date
no more than two business days prior to the Closing Date or such Additional Closing Date, as the case may be.
8.4. No Material Adverse Change.
No event or condition of a type described in Section 2.12 hereof shall have occurred or shall exist, which event or condition is not described
in each of the Pricing Disclosure Package and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto), the
effect of which in the judgment of the Underwriter makes it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Units on the Closing Date or any Additional Closing Date, as the case may be, in the manner and on the terms contemplated by this
Agreement, the Pricing Disclosure Package and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto).
8.5. Opinion and Negative Assurance
Letter of Counsel to the Company. U.S. Company Counsel shall each have furnished to the Underwriter, at the request of the Company,
its (i) written opinion, addressed to the Underwriter and dated the Closing Date or any Additional Closing Date, as the case may be, and
(ii) negative assurance letter, addressed to the Underwriter and dated the Closing Date or any Additional Closing Date, as the case may
be, in each case, in a form reasonably satisfactory to the Underwriter.
8.6. Officer’s Certificate.
The Underwriter shall have received as of the Closing Date or any Additional Closing Date on the date of this Agreement, a certificate
from the Company’s CFO in form and substance reasonably satisfactory to the Underwriter, containing statements and information confirming
that the financial statements and certain financial information contained in the Registration Statement is consistent with the Company’s
records and does not contain any material misstatements or omissions and shall have received as of the Closing Date or any Additional
Closing Date, as the case may be, a certificate of an executive officer of the Company who has specific knowledge of the Company’s
financial matters and is satisfactory to the Underwriter, (i) confirming that such officer has carefully reviewed the Registration Statement,
the Pricing Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each Written Testing-the- Waters Communication
and, to the knowledge of such officer, the representations set forth in Sections 2.1.2, 2.2, 2.3.1, 2.4.1, 2.5.1, 2.6 and 2.8, hereof
are true and correct on and as of the Closing Date or any Additional Closing Date, as the case may be; (ii) to the effect set forth in
clause (i) of Section 2.10 and Section 8.1 hereof; and (iii) confirming that all of the other representations and warranties of the Company
in this Agreement are true and correct on and as of the Closing Date or any Additional Closing Date, as the case may be, and that the
Company has complied with all agreements and covenants and satisfied all other conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date or any Additional Closing Date, as the case may be.
8.7. No Legal Impediment to Issuance
and Sale. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or any Additional Closing Date,
as the case may be, prevent the issuance, sale or delivery of the Closing Units or the Option Securities by the Company; and no injunction
or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or any Additional Closing Date,
as the case may be, prevent the issuance, sale or delivery of the Closing Units or the Option Securities.
8.8. Good Standing. The Underwriter
shall have received on and as of the Closing Date and any Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company in its jurisdiction of incorporation, in writing from the appropriate governmental authorities of such jurisdiction.
8.9. Lock-Up Agreements. The
Lock-Up Agreements substantially in the form of Exhibit 8.9 hereto executed by the officers, directors and certain stockholders
of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the
Underwriter on or before the date hereof, shall be in full force and effect on the Closing Date or any Additional Closing Date, as the
case may be.
8.10. Exchange Listing. On
the Closing Date or any Additional Closing Date, as the case may be, the Shares and the Series A tradable Warrants and the Series B tradable
Warrants shall have been approved for listing on the Exchange, subject to notice of issuance.
8.11. Consent to Shareholder Approval.
On or before the date of this Agreement, the Company’s Chief Executive Officer shall have delivered to the Underwriter executed
copies of an irrevocable consent to seek and vote his shares in favor of those corporate actions in Section 5.8.
8.12. Additional Documents.
On or prior to the Closing Date or any Additional Closing Date, as the case may be, the Underwriter and its counsel shall have received
such information, certificates and other additional documents from the Company as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Units as contemplated herein or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the covenants, closing conditions or other obligations, contained in this Agreement.
All opinions, letters,
certificates and other documents delivered pursuant to this Agreement will be deemed to be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to counsel for the Underwriter.
If any condition specified
in this Section 8 is not satisfied when and as required to be satisfied, this Agreement and all obligations of the Underwriter hereunder
may be terminated by the Underwriter by notice to the Company at any time on or prior to the Closing Date or any Additional Closing Date,
as the case may be, which termination shall be without liability on the part of any party to any other party, except that the Company
shall continue to be liable for the payment of expenses under Section 7 and Section 12 hereof and except that the provisions of Section
9 and Section 10 hereof shall at all times be effective and shall survive any such termination.
9.1. Indemnification of the Underwriter
by the Company. The Company agrees to indemnify and hold harmless the Underwriter, its Affiliates, directors, officers, employees
and agents and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, all reasonable
legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment or supplement thereto), or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any Pricing Disclosure Package (including any Pricing Disclosure
Package that has subsequently been amended), the Final Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus,
any Issuer Information, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or any Road Show, or the omission
or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case, except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with
the Underwriter Information. The indemnity agreement set forth in this Section 9.1 shall be in addition to any liabilities that the Company
may otherwise have.
9.2. Indemnification of the Company
by the Underwriter. The Underwriter agrees to indemnify and hold harmless the Company, its directors, each officer who signed
the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, all
reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees
and expenses are incurred), joint or several, to the same extent as the indemnity set forth in Section 9.1 hereof; provided, however,
that the Underwriter shall be liable only to the extent that any untrue statement or omission or alleged untrue statement or omission
was made in the Registration Statement (or any amendment or supplement thereto), any Pricing Disclosure Package (including any Pricing
Disclosure Package that has subsequently been amended), the Final Prospectus (or any amendment or supplement thereto), any Preliminary
Prospectus, any Issuer Information, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or any Road Show
in reliance upon, and in conformity with, the Underwriter Information relating to the Underwriter. The indemnity agreement set forth in
this Section 9 shall be in addition to any liabilities that the Underwriter may otherwise have.
9.3. Notifications and Other Indemnification
Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification may be sought pursuant to any of the preceding subsections
of this Section 9, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it may have under any of the preceding subsections of this Section
9 except to the extent that it has been materially prejudiced by such failure; and provided, further, that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under any of
the preceding subsections of this Section 9. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified
Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified
Person in such proceeding and shall pay the reasonable and documented fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties
in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation
of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood
and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for (i) the Underwriter, its
Affiliates, directors, officers, employees and agents and each person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall be designated in writing by the Underwriter; and (ii) the Company, its
directors, its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall be designated in writing by the
Company.
9.4. Settlements. The Indemnifying
Person under this Section 9 shall not be liable for any settlement of any proceeding effected without its written consent, which consent
may not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify the Indemnified Person from and against any loss, claim, damage, liability or expense by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for any reasonably incurred and documented fees and expenses of counsel as contemplated by this Section
9, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than forty-five (45) days after receipt by such Indemnifying Person of the aforesaid request,
(ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request, or shall not have disputed
in good faith the Indemnified Person’s entitlement to such reimbursement, prior to the date of such settlement and (iii) such Indemnified
Person shall have given the Indemnifying Person at least forty-five (45) days’ prior notice of its intention to settle. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of which any Indemnified Person is or could have been a party
and indemnity was or could have been sought hereunder by such Indemnified Person, unless such settlement, compromise or consent (x) includes
an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from and
against all liability on claims that are the subject matter of such action, suit or proceeding and (y) does not include any statements
as to or any findings of fault, culpability or failure to act by or on behalf of any Indemnified Person.
10.1. To the extent the indemnification provided
for in Section 9 hereof is unavailable to or insufficient to hold harmless an Indemnified Person in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each Indemnifying Person, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the aggregate amount paid or payable by such Indemnified Person, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriter, on the other hand, from the offering of the Units pursuant to this Agreement or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriter,
on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriter,
on the other hand, in connection with the offering of the Units pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Units pursuant to this Agreement (before deducting expenses) received by
the Company, on the one hand, and the total underwriting discounts and commissions received by the Underwriter, on the other hand, in
each case as set forth in the table on the cover of the Final Prospectus bear to the aggregate initial offering price of the Units. The
relative fault of the Company, on the one hand, and the Underwriter, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, on the one hand, or the Underwriter, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
10.2. The amount paid or payable by a party
as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations
set forth in Section 9 hereof, all reasonable legal or other fees or expenses incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in Section 9 hereof with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 10; provided, however, that no additional notice shall be required
with respect to any action for which notice has been given under Section 9 hereof for purposes of indemnification.
10.3. The Company and the Underwriter agree
that it would not be just and equitable if contribution pursuant to this Section 10 was determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in this Section 10.
10.4. Notwithstanding the provisions of this
Section 10, the Underwriter shall not be required to contribute any amount in excess of the amount by which the total discounts and commissions
received by the Underwriter in connection with the Units distributed by it exceeds the amount of any damages the Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
10.5. For purposes of this Section 10, each
director, officer, employee and agent of the Underwriter and each person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Underwriter, and each director
and officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company with the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Company.
10.6. The remedies provided for in Section
9 and Section 10 hereof are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity.
11.1. Prior to the
delivery of and payment for the Units on the Closing Date or any Additional Closing Date, as the case may be, this Agreement may be terminated
by the Underwriter in the absolute discretion of the Underwriter by notice given to the Company if after the execution and delivery of
this Agreement: (i) trading or quotation of any securities issued or guaranteed by the Company shall have been suspended or materially
limited on any securities exchange, quotation system or in the over-the-counter market; (ii) trading in securities generally on any of
the New York Stock Exchange, the Nasdaq Stock Exchange or the over-the-counter market shall have been suspended or materially limited;
(iii) a general banking moratorium on commercial banking activities shall have been declared by federal or New York state authorities;
(iv) there shall have occurred a material disruption in commercial banking or securities settlement, payment or clearance services in
the United States; (v) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets, or any substantial change or development involving a
prospective substantial change in general economic, financial or political conditions in the United States or internationally, as in the
judgment of the Underwriter is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Units on the Closing Date or any Additional Closing Date, as the case may be, in the manner and on the terms described in the Pricing
Disclosure Package or to enforce contracts for the sale of securities; or (vi) the Company or any of its subsidiaries shall have sustained
a loss by strike, fire, flood, earthquake, accident or other calamity of such character as in the judgment of the Underwriter may interfere
materially with the conduct of the business and operations of the Company and its subsidiaries, considered as one entity, regardless of
whether or not such loss shall have been insured.
11.2. Any termination
pursuant to this Section 11 shall be without liability on the part of: (x) the Company to
the Underwriter, except that the Company shall continue to be liable for the payment of expenses under Section 7; (y) the Underwriter
to the Company; or (z) any party hereto to any other party except that the provisions of Section 9, Section 10 and this Section 11 hereof
shall at all times be effective and shall survive any such termination.
12. |
Reimbursement of the Underwriter’s Expenses. If (a) the Company fails to deliver the Units to the Underwriter for any reason at the Closing Date or any Additional Closing Date, as the case may be, in accordance with this Agreement or (b) the Underwriter declines to purchase the Units for any reason permitted under this Agreement, then the Company agrees to reimburse the Underwriter for all reasonable out-of-pocket costs and expenses (including the reasonable and documented fees and expenses of counsel to the Underwriter) incurred by the Underwriter in connection with this Agreement and the applicable offering contemplated hereby. |
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13. |
Representations and Indemnities to Survive Delivery. The respective indemnities, rights of contribution, agreements, representations, warranties and other statements of the Company and the Underwriter set forth in or made pursuant to this Agreement or made by or on behalf of the Company or the Underwriter pursuant to this Agreement or any certificate delivered pursuant hereto shall remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriter, the Company or any of their respective officers or directors or any controlling person, as the case may be, and shall survive delivery of and payment for the Units sold hereunder and any termination of this Agreement. |
14. |
Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) when delivered by hand (with written confirmation of receipt), (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (iii) on the date sent by facsimile (with confirmation of transmission) or email of a PDF document if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (iv) on the third day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage pre-paid). Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 14): |
If to the Underwriter: |
Aegis Capital Corp. |
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1345 Avenue of the Americas, 27th Floor New York, NY 10105 |
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Email: |
reide@aegiscap.com |
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Attention: |
Robert Eide |
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with a copy to: |
Kaufman & Canoles, P.C. |
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Two James Center, 14th Floor, 1021 E. Cary St., Richmond, VA 23219 |
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Email: |
awbasch@kaufcan.com |
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Attention: |
Anthony Basch |
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If to the Company: |
Cemtrex Inc. |
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135 Fell Court |
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Hauppauge, NY 11788 |
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Email: |
sgovil@cemtrex.com |
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Attention: |
Saagar Govil |
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with copy to: |
The Doney Law Firm |
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4955 S. Durango Rd. Ste. 165 Las Vegas, NV 89113 |
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Email: |
Scott@DoneyLawFirm.com |
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Attention: |
Scott Doney |
Any party hereto may
change the address or facsimile number for receipt of communications by giving written notice to the others in accordance with this Section
14.
15. |
Successors. This Agreement shall inure solely to the benefit of and be binding upon the Underwriter, the Company and the other indemnified parties referred to in Section 9 and Section 10 hereof, and in each case their respective successors. Nothing in this Agreement is intended, or shall be construed, to give any other person or entity any legal or equitable right, benefit, remedy or claim under, or in respect of or by virtue of, this Agreement or any provision contained herein. The term “successors,” as used herein, shall not include any purchaser of the Units from the Underwriter merely by reason of such purchase. |
16. |
Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable. |
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17. |
Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement, whether sounding in contract, tort or statute, shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state (including its statute of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. The Company has irrevocably appointed The Corporation Trust Company, as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the Borough of Manhattan in the City of New York, United States of America. |
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18. |
Consent to Jurisdiction. No legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (each, a “Related Proceeding”) may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts (collectively, the “Specified Courts”) shall have jurisdiction over the adjudication of any Related Proceeding, and the parties to this Agreement hereby irrevocably consent to the exclusive jurisdiction the Specified Courts and personal service of process with respect thereto. The parties to this Agreement hereby irrevocably waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and irrevocably waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum. |
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19. |
Equitable Remedies. Each party to this Agreement acknowledges and agrees that (a) a breach or threatened breach by the Company of any of its obligations under Section 5.10 or Section 5.15 would give rise to irreparable harm to the Underwriter for which monetary damages would not be an adequate remedy and (b) if a breach or a threatened breach by the Company of any such obligations occurs, the Underwriter will, in addition to any and all other rights and remedies that may be available to such party at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance of the terms of Section 5.10 or Section 5.15 and any other relief that may be available from a court of competent jurisdiction, without any requirement to (i) post a bond or other security, or (ii) prove actual damages or that monetary damages will not afford an adequate remedy. Each party to this Agreement agrees that such party shall not oppose or otherwise challenge the existence of irreparable harm, the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 19. |
20. |
Waiver of Jury Trial. The parties to this Agreement hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any Related Proceeding. |
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21. |
No Fiduciary Relationship. The Company acknowledges and agrees that: (i) the purchase and sale of the Units pursuant to this Agreement, including the determination of the offering price of the Units and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriter, on the other hand; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction the Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its Affiliates, stockholders, members, partners, creditors or employees or any other party; (iii) the Underwriter has not assumed and will not assume an advisory or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether the Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement; (iv) the Underwriter and its respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and the Underwriter has no obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship; and (v) the Underwriter has not provided any legal, accounting, regulatory or tax advice in any jurisdiction with respect to the offering contemplated hereby, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate. The Company waives and releases, to the full extent permitted by applicable law, any claims it may have against the Underwriter arising from an alleged breach of fiduciary duty in connection with the offering of the Units or any matters leading up to the offering of the Units. |
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22. |
Compliance with the USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriter is required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow the Underwriter to properly identify their respective clients. |
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23. |
Entire Agreement. This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Units, represents the entire agreement among the Company and the Underwriter with respect to the preparation of the Registration Statement, the Pricing Disclosure Package, the Final Prospectus, each Preliminary Prospectus, each Issuer Free Writing Prospectus, each Testing-the-Waters Communication and each Road Show, the purchase and sale of the Units and the conduct of the offering contemplated hereby. |
24. |
Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by all the parties hereto. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after the waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise of any other right, remedy, power or privilege. |
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25. |
Section Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. |
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26. |
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via facsimile, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
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27. |
Recognition of the U.S. Special Resolution Regimes. |
27.1. In the event that the Underwriter is
a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Underwriter
of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would
be effective under the U.S. Special Resolution Regime (as defined below) if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
27.2. In the event that the Underwriter is
a Covered Entity or a BHC Act Affiliate (as defined below) of the Underwriter becomes subject to a proceeding under a U.S. Special Resolution
Regime, Default Rights (as defined below) under this Agreement that may be exercised against the Underwriter is permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
27.3. As used in this
section:
27.3.1. “BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with,
12 U.S.C. § 1841(k).
27.3.2. “Covered
Entity” means any of the following:
27.3.2.1 a “covered entity”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
27.3.2.2 a “covered bank” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
27.3.2.3 a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
27.3.3. “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
27.3.4. “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd- Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[CETX Underwriting Agreement Signature
Page Follows]
[CETX Underwriting Agreement Signature
Page]
If the foregoing
is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very truly yours, |
|
CEMTREX INC. |
|
|
|
|
By: |
/s/ Saagar Govil |
|
Name: |
Saagar Govil |
|
Title: |
Chief Executive Officer |
Confirmed and accepted as of the date first
above written:
AEGIS CAPITAL CORP. |
|
|
|
|
By: |
/s/ Robert Eide |
|
Name: |
Robert Eide |
|
Title: |
Chief Executive Officer |
|
SCHEDULE 1.14
Pricing Disclosure Package
Number of Closing Shares: | |
| 11,764,705 | |
● Number of Units containing Firm Shares | |
| 554,705 | |
● Number of Units containing Pre-funded Warrants | |
| 11,210,000 | |
Number of Option Shares: | |
| 83,205 | |
Number of Option Pre-funded Warrants: | |
| 1,681,500 | |
Number of Option Series A Warrants: | |
| 1,764,705 | |
Number of Option Series B Warrants: | |
| 1,764,705 | |
Public Offering Price per Common Unit: | |
$ | 0.850 | |
Public Offering Price per Pre-funded Unit: | |
$ | 0.849 | |
Exercise Price per Pre-Funded Warrant: | |
$ | 0.001 | |
Exercise Price per Series A Warrant per whole share: | |
$ | 0.85 | |
Exercise Price per Series B Warrant per whole share: | |
$ | 0.85 | |
Underwriting Discount per Common Unit and per Pre-funded Unit: | |
$ | 0.0595 | |
Non-accountable expense allowance per Common Unit and per Pre-funded Unit: | |
$ | 0.0043 | |
Purchase Price per Option Share: | |
$ | 0.7863 | |
Purchase Price per Option Pre-Funded Warrant: | |
$ | 0.78525 | |
Purchase Price per full Option Series A or Series B Warrant: | |
$ | 0.01 | |
SCHEDULE 2.5.4
Free Writing Prospectuses
SCHEDULE 2.43
Significant Subsidiaries
Significant Subsidiaries |
|
Place of Incorporation |
Advanced Industrial Services, Inc. |
|
Pennsylvania |
Advanced Industrial Leasing, Inc. |
|
Pennsylvania |
Cemtrex Technologies Pvt Ltd. |
|
India |
Vicon Industries, Inc. |
|
New York |
Vicon Industries Limited |
|
United Kingdom |
SCHEDULE 4.1.2
Closing Securities
Underwriter | |
Number of Closing Units to Be Purchased | |
Number of Option Securities to Be Purchased if the Maximum Over- Allotment Option Is Exercised |
| |
| |
|
Aegis Capital Corp. | |
11,764,705 | |
1,764,705 |
Total: | |
11,764,705 | |
1,764,705 |
EXHIBIT 5.10.3.1
Form of Lock-Up Waiver
[●], 202[●]
[Waiver Recipient Name and Address]
Re: Lock-Up
Agreement Waiver
Ladies and Gentlemen:
[Pursuant to Section 8.9 of the Underwriting
Agreement, dated [●], 2024 (the “Underwriting Agreement”), among Cemtrex Inc., a Delaware corporation
(the “Company”), and Aegis Capital Corp. (the “Underwriter”), and the Lock-Up Agreement,
dated [●], 2024 (the “Lock-Up Agreement”), between you and the Underwriter relating to the Company’s
shares of Common Stock, $0.001 par value per share (the “Share”), the Underwriter hereby gives its consent to
allow you to sell up to [●] Share [solely from and including [DATE] to and including [DATE]].]
[Pursuant to Section 5.10 of the Underwriting
Agreement, the Underwriter hereby gives its consent to allow the Company to issue and sell up to [●] Shares pursuant to an offering
of the Shares to commence prior to the expiration of the Lock-Up Period as defined in the Underwriting Agreement[, provided that such
offering closes on or prior to [●]].]
|
AEGIS CAPITAL CORP. |
|
|
|
|
By: |
|
|
Name: |
Robert Eide |
|
Title: |
Chief Executive Officer |
EXHIBIT 5.10.3.2
Form of Lock-Up Waiver Press Release
Cemtrex Inc.
[Date]
Cemtrex Inc., a Delaware corporation (the
“Company”) announced today that Aegis Capital Corp., acting as the Underwriter in the Company’s recent public offering
of the Company’s Units consisting of one (1) share of Common Stock; and one (1) Series A warrant to purchase one (1) share of Common
Stock at a per-Share exercise price of $[●] (representing [●]% of the per Closing Common Unit (as defined below) offering
price attributed to the value of the shares of Common Stock included in the Closing Common Unit; and one (1) Series B warrant to purchase
one (1) share of Common Stock at a per-Share exercise price of $[●] (representing [●]% of the per Closing Common Unit (as
defined below) offering price attributed to the value of the shares of Common Stock included in the Closing Common Unit, is [waiving]
[releasing] a lock-up restriction with respect to the Company’s shares of Common Stock held by [certain officers or directors] [an
officer or director] of the Company. The [waiver] [release] will take effect on [Date], and the Shares may be sold on or after such date.
This press release is not an offer or
sale of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited, and such securities may
not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act of 1933, as
amended.
EXHIBIT 8.9
Form of Lock-Up Agreement
Exhibit
4.1
PRE-FUNDED
WARRANT TO PURCHASE COMMON STOCK
CEMTREX
INC.
Warrant
Shares: [●] |
Initial
Exercise Date: May 1, 2024 |
|
Issue
Date: May 3, 2024 |
THIS
PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK (the “Warrant”) certifies that, for value received, [●]
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time until this Warrant is exercised in full (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Cemtrex Inc., a Delaware corporation (the “Company”),
up to [●] shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase
price of one (1) share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2.2.
1. |
Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Underwriting Agreement dated May 1, 2024, the following
terms have the meanings indicated in this Section 1: |
1.1.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.2.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a)
if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the
nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market,
the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.3.
“Board of Directors” means the board of directors of the Company.
1.4.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City
of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks
shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
1.5.
“Commission” means the United States Securities and Exchange Commission.
1.6.
“Common Stock” means the common stock of the Company, $0.001 par value per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
1.7.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock.
1.8.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
1.9.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.10.
“Registration Statement” means the Company’s registration statement on Form S-1 (File No. 333-276556).
1.11.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.12.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
1.13.
“Trading Day” means a day on which the Common Stock is traded on a Trading Market.
1.14.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.15.
“Transfer Agent” means Clear Trust LLC, the current transfer agent of the Company, with a mailing address of
16540 Pointe Village Drive Suite 210, Lutz, Florida 33558 and an email address of inbox@cleartrusttransfer.com, and any successor
transfer agent of the Company.
1.16.
“Underwriting Agreement” means the underwriting agreement, dated as of May 1, 2024, between the
Company and Aegis Capital Corp., as amended, modified or supplemented from time to time in accordance with its terms.
1.17.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date
(or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.18.
“Warrants” means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the
Registration Statement.
2.1.
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit 2.1
(the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2.4.1 herein) following the date of exercise as aforesaid,
the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is
specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant
Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the
Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company.
Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall
have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number
of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the
date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such
notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this
paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder
at any given time may be less than the amount stated on the face hereof.
2.2.
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant
Share, was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than
the nominal exercise price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise
of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise
price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to
the Termination Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.001, subject to adjustment
hereunder (the “Exercise Price”).
2.3.
Cashless Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
|
(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2.1 hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2.1 hereof on a Trading Day prior to the opening of “regular trading hours” (as
defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of
the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the
Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours”
on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2.1 hereof or (iii) the VWAP on the date of the applicable Notice
of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2.1 hereof after the close of “regular trading hours” on such Trading Day; |
|
|
|
|
(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
|
|
|
|
(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. Assuming (i) the Holder is not an Affiliate
of the Company, and (ii) all of the applicable conditions of Rule 144 promulgated under the Securities Act with respect to Holder and
the Warrant Shares are met in the case of such a cashless exercise, the Company agrees that the Company will cause the removal of the
legend from such Warrant Shares (including by delivering an opinion of the Company’s counsel to the Company’s transfer agent
at its own expense to ensure the foregoing), and the Company agrees that the Holder is under no obligation to sell the Warrant Shares
issuable upon the exercise of the Warrant prior to removing the legend. The Company agrees not to take any position contrary to this
Section 2.3.
2.4.
Mechanics of Exercise.
2.4.1.
Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, for the number
of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1)
Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard
Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. Notwithstanding anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for
purposes of Regulation SHO under the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery
of the Warrant Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise
by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each
$1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise),
$10 per Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each
Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company
agrees to maintain a Transfer Agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable.
As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of
Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of
the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m.
(New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Underwriting
Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial
Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of
the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
2.4.2.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
2.4.3.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2.4.1 by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.4.4.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2.4.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is
required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by
which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder
in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed,
and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such
exercise was not honored and return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
2.4.5.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.4.6.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.4.6 duly
executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and
all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
2.4.7.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
2.5.
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect
to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates,
and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.5,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.
To the extent that the limitation contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this
Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be
the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together
with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial
Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition,
a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act
and the rules and regulations promulgated thereunder. For purposes of this Section 2.5, in determining the number of outstanding
shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s
most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company
or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder
the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates
or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the
number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon
exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 2.5, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of Common
Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 2.5 shall continue to apply. Any increase in the Beneficial Ownership Limitation will
not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2.5 to correct this
paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained
or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of this Warrant.
3.1.
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise
of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of Shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3.1 shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
3.2.
[Reserved.]
3.3.
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3.1 above, if at any time the Company
grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to
all (or substantially all) of the record holders of any class of shares of Common Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant
(without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent
(or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to
such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding
the Beneficial Ownership Limitation).
3.4.
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for
such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any
such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution
to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever,
as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has
not been partially or completely exercised at the time of such Distribution, such portion of the Distribution shall be held in abeyance
for the benefit of the Holder until the Holder has exercised this Warrant.
3.5.
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock
or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2.5 on the exercise of this Warrant), the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section
2.5 on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of
Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in
a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock
are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given
the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined
below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the
Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this
Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining
unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the
Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors,
the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in
the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders
of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock
or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration
in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or
paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock/shares
of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black
Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable contemplated
Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for
a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the
Termination Date, (B) an expected volatility equal to the greater of (1) 100% and (2) the 100 day volatility as obtained from
the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public
announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall
be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration,
if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately
preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental
Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section and (D) a remaining
option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and
the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately
available funds (or such other consideration) within the later of (i) five (5) Business Days after the Holder’s election and (ii)
the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in
which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations
of the Company under this Warrant in accordance with the provisions of this Section 3.5 pursuant to written agreements in
form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity
evidenced by a written instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding
number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable
and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account
the relative value of the shares of Common Stock prior to such Fundamental Transaction and the value of such shares of capital stock,
such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to
the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company”
under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of
this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor
Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise
every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations
of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity or Successor Entities,
jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits
of the provisions of this Section 3.5 regardless of (i) whether the Company has sufficient authorized shares of Common Stock
for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
3.6.
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a
share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding
as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
3.7.
Notice to Holder.
3.7.1.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3,
the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.7.2.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,
(C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
4.
Transfer of Warrant.
4.1.
Transferability. Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto
as Exhibit 2.4.6 duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
4.2.
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be
divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance
date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3.
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
5.
Miscellaneous.
5.1.
No Rights as Stockholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2.4.1, except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2.3 or to receive cash payments pursuant to Section 2.4.1 and Section 2.4.4 herein,
in no event shall the Company be required to net cash settle an exercise of this Warrant.
5.2.
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
5.3.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.4.
Authorized Shares.
5.4.1.
Reservation of Authorized and Unissued Shares. The Company covenants that, during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient number of shares of Common Stock to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon
the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant
and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means
that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
5.4.2.
Noncircumvention. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3.
Authorizations, Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof 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 Warrant 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 law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
5.6.
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7.
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact
that the right to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver
by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission
thereunder. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
5.8.
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 135 Fell Court, Hauppauge, NY 11788, Attention: Saagar Govil, Chief Executive Officer,
email address: sgovil@cemtrex.com, or such other email address or address as the Company may specify for such purposes by notice to the
Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered
personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or
address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed
given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail
address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time
of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 5.8 on
a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Current Report on Form 8-K.
5.9.
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
5.10.
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
5.11.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
5.12.
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company,
on the one hand, and the Holder, on the other hand.
5.13.
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
5.14.
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[CETX
Investor Pre-Funded Registered Warrant Signature Page Follows]
[CETX
Investor Pre-Funded Registered Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this Pre-Funded Registered Warrant to be executed by its officer thereunto duly authorized as
of the date first above indicated.
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CEMTREX
INC. |
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By:
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Name:
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Saagar
Govil |
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Its:
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Chief
Executive Officer |
Exhibit
2.1
NOTICE
OF EXERCISE
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
|
[ ] |
in
lawful money of the United States. |
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[ ] |
if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2.3. |
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
______________________________________________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
______________________________________________________________
______________________________________________________________
______________________________________________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: |
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Signature
of Authorized Signatory of Investing Entity: |
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Name
of Authorized Signatory: |
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Title
of Authorized Signatory: |
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Date:
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Exhibit
2.4.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares of Common Stock.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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Address: |
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Phone
Number: |
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Email
Address: |
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Date: |
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Holder’s
Signature: |
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Holder’s
Address: |
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Exhibit
4.2
SERIES
A WARRANT TO PURCHASE COMMON STOCK
CEMTREX
INC.
Warrant
Shares: [●] |
Initial
Exercise Date: [●], 2024 |
CUSIP:
[●] |
Issuance
Date: [●], 2024 |
ISIN:
[●] |
|
THIS
SERIES A WARRANT TO PURCHASE COMMON STOCK (the “Warrant”) certifies that, for value received, [●]
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time)
on [●], 2026 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Cemtrex
Inc., a Delaware corporation (the “Company”), up to [●] shares (as subject to adjustment hereunder, the
“Warrant Shares”) of Common Stock. The purchase price of one (1) share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2.2.
1. |
Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Underwriting Agreement dated [●], 2024, the following
terms have the meanings indicated in this Section 1: |
1.1.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.2.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a)
if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the
nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market,
the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.3.
“Board of Directors” means the board of directors of the Company.
1.4.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City
of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks
shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
1.5.
“Commission” means the United States Securities and Exchange Commission.
1.6.
“Common Stock” means the common stock of the Company, $0.001 par value per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
1.7.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock.
1.8.
“Exercise Date” means the date that some or all of this Warrant is exercised pursuant to the provisions of
this Warrant.
1.9.
“Issuance Date” means the date that this Warrant, among other securities, has been issued pursuant to the Underwriting
Agreement.
1.10.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
1.11.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.12.
“Registration Statement” means the Company’s registration statement on Form S-1 (File No. 333-276556).
1.13.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.14.
“Stockholder Approval” means such approval as may be required by the applicable rules and regulations of the
Nasdaq Capital Market (or any successor entity) from the stockholders of the Company, or board of directors in lieu thereof, with respect
to issuance of all of the Warrants and the Warrant Shares upon the exercise thereof, including without limitation:
1.14.1.
to give full effect to alternative cashless exercises pursuant to Section 2.3 hereof.
1.14.2.
to consent to any adjustment to the exercise price or number of shares of Common Stock underlying the Warrants in the event of a Share
Combination Event pursuant to Section 3.7.
1.14.3.
to consent to the voluntary adjustment, from time to time, of the exercise price of any and all currently outstanding warrants pursuant
to Section 3.8.
1.15.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
1.16.
“Trading Day” means a day on which the Common Stock is traded on a Trading Market.
1.17.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.18.
“Transfer Agent” means Clear Trust LLC, the current transfer agent of the Company, with a mailing address of
16540 Pointe Village Drive Suite 210, Lutz, Florida 33558 and an email address of [●], and any successor transfer agent of the
Company.
1.19.
“Underwriting Agreement” means the underwriting agreement, dated as of [●], 2024, between the Company
and Aegis Capital Corp., as amended, modified or supplemented from time to time in accordance with its terms.
1.20.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date
(or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.21.
“Warrants” means this Warrant and Series B Warrant to be issued by the Company pursuant to the Registration
Statement.
2.1.
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit 2.1
(the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2.4.1 herein) following the date of exercise as aforesaid, the
Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is specified
in the applicable Notice of Exercise. For the avoidance of doubt, any reference to cashless exercise herein shall include a reference
to alternative cashless exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type
of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall
not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this
Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and
any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
2.2.
Exercise Price. The exercise price per Warrant Share shall be $[●], subject to adjustment hereunder (the “Exercise
Price”).
2.3.
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder or the resale of the Warrant Shares by the Holder,
then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the
Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2.1 hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2.1 hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of
the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2.1 hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of
such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2.1 hereof
after the close of “regular trading hours” on such Trading Day; |
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(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. Assuming (i) the Holder is not an Affiliate
of the Company, and (ii) all of the applicable conditions of Rule 144 promulgated under the Securities Act with respect to Holder and
the Warrant Shares are met in the case of such a cashless exercise, the Company agrees that the Company will cause the removal of the
legend from such Warrant Shares (including by delivering an opinion of the Company’s counsel to the Company’s transfer agent
at its own expense to ensure the foregoing), and the Company agrees that the Holder is under no obligation to sell the Warrant Shares
issuable upon the exercise of the Warrant prior to removing the legend. The Company agrees not to take any position contrary to this
Section 2.3.
Whether
or not an effective registration statement is available, the Holder may also effect an “alternative cashless exercise” following
the Stockholder Approval Date. In such event, the aggregate number of Warrant Shares issuable in such alternative cashless exercise pursuant
to any given Notice of Exercise electing to effect an alternative cashless exercise shall equal the product of (i) the aggregate number
of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise
were by means of a cash exercise rather than a cashless exercise, multiplied by (ii) 3.0. Notwithstanding anything herein to the contrary,
on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2.3 (including
an alternative cashless exercise pursuant to this paragraph following the Stockholder Approval Date).
2.4.
Mechanics of Exercise.
2.4.1.
Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate or by electronic
delivery (at the election of the Holder), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the
delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company
and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise
(such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be
deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than
in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising
the Standard Settlement Period following delivery of the Notice of Exercise. Notwithstanding anything herein to the contrary, upon delivery
of the Notice of Exercise, the Holder shall be deemed for purposes of Regulation SHO under the Exchange Act to have become the holder
of the Warrant Shares irrespective of the date of delivery of the Warrant Shares. If the Company fails for any reason to deliver to the
Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in
cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the
Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3rd)
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares
are delivered or Holder rescinds such exercise. The Company agrees to maintain a Transfer Agent that is a participant in the FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to
the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s)
of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time
after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s)
by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date
for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received
by such Warrant Share Delivery Date.
2.4.2.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
2.4.3.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2.4.1 by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.4.4.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2.4.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which
(x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored and return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in which case
such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had
the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having
a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate
sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall
be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder
in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise
of the Warrant as required pursuant to the terms hereof.
2.4.5.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.4.6.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.4.6 duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
2.4.7.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
2.5.
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to
such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates,
and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.5,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.
To the extent that the limitation contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to
any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2.5, in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since
the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2.5, provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to
the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2.5 shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2.5 to correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
3.1.
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise
of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of Shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3.1 shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
3.2.
Subsequent Rights Offerings. In addition to any other adjustments pursuant to Section 3 above, if at any time the Company
grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to
all (or substantially all) of the record holders of any class of shares of Common Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant
(without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent
(or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to
such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding
the Beneficial Ownership Limitation).
3.3.
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for
such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any
such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution
to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever,
as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has
not been partially or completely exercised at the time of such Distribution, such portion of the Distribution shall be held in abeyance
for the benefit of the Holder until the Holder has exercised this Warrant.
3.4.
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock
or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2.5 on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2.5 on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary,
in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option,
exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the
date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder
an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date
of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock
are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided,
further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such
holders of Common Stock will be deemed to have received common stock/shares of the Successor Entity (which Entity may be the Company
following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value
of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus
the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3.4, (D) a remaining option time equal to the time between the date of the public announcement of the applicable
contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will
be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Business Days
after the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor
entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume
in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3.4 pursuant to
written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock prior to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the
Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume
all of the obligations of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity
or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled
to the benefits of the provisions of this Section 3.4 regardless of (i) whether the Company has sufficient authorized shares of Common
Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
3.5.
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
3.6.
Notice to Holder.
3.6.1.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.6.2.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,
(C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
3.7.
Share Combination Event Adjustment. In addition to the adjustments set forth in Section 3.1 above, if at any time and from
time to time on or after the Issuance Date there occurs any share split, share dividend, share combination recapitalization or other
similar transaction involving the Common Stock (each, a “Share Combination Event”, and such date thereof, the
“Share Combination Event Date”) and the lowest VWAP during the period commencing Five (5) consecutive Trading
Days immediately preceding and the Five (5) consecutive Trading Days commencing on the Share Combination Event Date (the “Event
Market Price”) (provided if the Share Combination Event is effective after close of Trading on the primary Trading Market,
then commencing on the next Trading Day which period shall be the “Share Combination Adjustment Period”) is
less than the Exercise Price then in effect (after giving effect to the adjustment in clause 3.1 above), then at the close of trading
on the primary Trading Market on the last day of the Share Combination Adjustment Period, the Exercise Price then in effect on such Fifth
(5th) Trading Day shall be reduced (but in no event increased) to the Event Market Price and the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price of this Warrant on the Issuance Date for the Warrant Shares then outstanding
shall remain unchanged. For the avoidance of doubt, if the adjustment in the immediately preceding sentence would otherwise result in
an increase in the Exercise Price hereunder, no adjustment shall be made, and if this Warrant is exercised, on any given Exercise Date
during the Share Combination Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise
Date, such applicable Share Combination Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately
prior to such Exercise Date and the Event Market Price on such applicable Exercise Date will be the lowest VWAP of the Common Stock immediately
during such the Share Combination Adjustment Period prior to such Exercise Date and ending on, and including the Trading Day immediately
prior to such Exercise Date.
3.8.
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder,
the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of
time deemed appropriate by the Board of Directors.
3.9.
Stockholder Approval. The Company shall obtain a written consent resolution of the majority of the voting power of the
Company, at the earliest practicable date after the date hereof, but in no event later than twenty (20) days after the Closing Date for
the purpose of obtaining Stockholder Approval, if required, to effect the purpose thereof, with the recommendation of the Board that
such proposal be approved and within such twenty-day time period shall file with the Commission, and deliver to shareholders of the Company,
a written information statement containing the information specified in Schedule 14C detailing such Stockholder Approval. The Company
shall use its reasonable best efforts to obtain such Stockholder Approval, and officers, directors, and shareholders subject to the Lock-Up
Agreement shall vote in favor of such proposal.
3.10.
[Reserved]
4.1.
Transferability. Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto
as Exhibit 2.4.6 duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
4.2.
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3.
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
5.1.
No Rights as Stockholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2.4.1, except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2.3 or to receive cash payments pursuant to Section 2.4.1 and Section 2.4.4 herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
5.2.
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
5.3.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.4.
Authorized Shares.
5.4.1.
Reservation of Authorized and Unissued Shares. The Company covenants that, during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient number of shares of Common Stock to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon
the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant
and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means
that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
5.4.2.
Noncircumvention. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3.
Authorizations, Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof 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 Warrant 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 law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
5.6.
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7.
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact
that the right to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver
by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission
thereunder. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
5.8.
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 135 Fell Court, Hauppauge, NY 11788, Attention: Saagar Govil, Chief Executive Officer,
email address: sgovil@cemtrex.com, or such other email address or address as the Company may specify for such purposes by notice to the
Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered
personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or
address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed
given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail
address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of
transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 5.8 on a day that
is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice
is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K.
5.9.
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
5.10.
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
5.11.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
5.12.
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company,
on the one hand, and the Holder, on the other hand.
5.13.
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
5.14.
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[CETX
Investor Registered Warrant Signature Page Follows]
[CETX
Investor Registered Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this Registered Warrant to be executed by its officer thereunto duly authorized as of the date
first above indicated.
|
CEMTREX
INC. |
|
|
|
|
By: |
|
|
Name: |
Saagar
Govil |
|
Its: |
Chief
Executive Officer |
Exhibit
2.1
NOTICE
OF EXERCISE
To:
CEMTREX INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
|
[
] |
in
lawful money of the United States. |
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[
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if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2.3. |
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[
] |
if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the provisions of subsection 2.3,
to exercise this Warrant pursuant to the “alternative cashless exercise” procedure set forth in subsection 2.3. |
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
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_______________________________ |
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The
Warrant Shares shall be delivered to the following DWAC Account Number:
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_______________________________ |
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_______________________________ |
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_______________________________ |
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[SIGNATURE
OF HOLDER]
Name
of Investing Entity: |
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Signature
of Authorized Signatory of Investing Entity: |
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Name
of Authorized Signatory: |
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Title
of Authorized Signatory: |
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Date: |
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Exhibit
2.4.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares of Common Stock.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
Name: |
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Address: |
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Phone
Number: |
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Email
Address: |
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Date: |
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Holder’s
Signature: |
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Holder’s
Address: |
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Exhibit
4.3
SERIES
B WARRANT TO PURCHASE COMMON STOCK
CEMTREX
INC.
Warrant
Shares: [●] |
Initial
Exercise Date: [●], 2024 |
CUSIP:
[●]
ISIN:
[●] |
Issuance
Date: [●], 2024 |
THIS
SERIES B WARRANT TO PURCHASE COMMON STOCK (the “Warrant”) certifies that, for value received, [●]
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time)
on [●], 2029 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Cemtrex
Inc., a Delaware corporation (the “Company”), up to [●] shares (as subject to adjustment hereunder, the
“Warrant Shares”) of Common Stock. The purchase price of one (1) share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2.2.
1. |
Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Underwriting Agreement dated [●], 2024, the following
terms have the meanings indicated in this Section 1: |
1.1.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.2.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a)
if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the
nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market,
the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.3.
“Board of Directors” means the board of directors of the Company.
1.4.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City
of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks
shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
1.5.
“Commission” means the United States Securities and Exchange Commission.
1.6.
“Common Stock” means the common stock of the Company, $0.001 par value per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
1.7.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock.
1.8.
“Exercise Date” means the date that some or all of this Warrant is exercised pursuant to the provisions of
this Warrant.
1.9.
“Issuance Date” means the date that this Warrant, among other securities, has been issued pursuant to the Underwriting
Agreement.
1.10.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
1.11.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.12.
“Registration Statement” means the Company’s registration statement on Form S-1 (File No. 333-276556).
1.13.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.14.
“Stockholder Approval” means such approval as may be required by the applicable rules and regulations of the
Nasdaq Capital Market (or any successor entity) from the stockholders of the Company, or board of directors in lieu thereof, with respect
to issuance of all of the Warrants and the Warrant Shares upon the exercise thereof, including without limitation:
1.14.1.
to render inapplicable the Floor Price in Section 3.2 hereof, thereby giving full effect to the adjustment in the exercise price and/or
number of shares of Common Stock underlying the Warrants following any Dilutive Issuance (as defined below).
1.14.2.
to consent to any adjustment to the exercise price or number of shares of Common Stock underlying the Warrants in the event of a Share
Combination Event pursuant to Section 3.8.
1.14.3.
to consent to the voluntary adjustment, from time to time, of the exercise price of any and all currently outstanding warrants pursuant
to Section 3.9.
1.15.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
1.16.
“Trading Day” means a day on which the Common Stock is traded on a Trading Market.
1.17.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.18.
“Transfer Agent” means Clear Trust LLC, the current transfer agent of the Company, with a mailing address of
16540 Pointe Village Drive Suite 210, Lutz, Florida 33558 and an email address of, and any successor transfer agent of the Company.
1.19.
“Underwriting Agreement” means the underwriting agreement, dated as of [●], 2024, between the Company
and Aegis Capital Corp., as amended, modified or supplemented from time to time in accordance with its terms.
1.20.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date
(or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.21.
“Warrants” means this Warrant and the Series A Warrant to be issued by the Company pursuant to the Registration
Statement.
2.1.
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit 2.1
(the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2.4.1 herein) following the date of exercise as aforesaid, the
Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is specified
in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this
Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and
any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
2.2.
Exercise Price. The exercise price per Warrant Share shall be $[●], subject to adjustment hereunder (the “Exercise
Price”).
2.3.
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder or the resale of the Warrant Shares by the Holder,
then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the
Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2.1 hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2.1 hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of
the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2.1 hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of
such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2.1 hereof
after the close of “regular trading hours” on such Trading Day; |
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(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. Assuming (i) the Holder is not an Affiliate
of the Company, and (ii) all of the applicable conditions of Rule 144 promulgated under the Securities Act with respect to Holder and
the Warrant Shares are met in the case of such a cashless exercise, the Company agrees that the Company will cause the removal of the
legend from such Warrant Shares (including by delivering an opinion of the Company’s counsel to the Company’s transfer agent
at its own expense to ensure the foregoing), and the Company agrees that the Holder is under no obligation to sell the Warrant Shares
issuable upon the exercise of the Warrant prior to removing the legend. The Company agrees not to take any position contrary to this
Section 2.3.
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2.3.
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2.4. |
Mechanics
of Exercise. |
2.4.1.
Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate or by electronic
delivery (at the election of the Holder), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the
delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company
and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise
(such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be
deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than
in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising
the Standard Settlement Period following delivery of the Notice of Exercise. Notwithstanding anything herein to the contrary, upon delivery
of the Notice of Exercise, the Holder shall be deemed for purposes of Regulation SHO under the Exchange Act to have become the holder
of the Warrant Shares irrespective of the date of delivery of the Warrant Shares. If the Company fails for any reason to deliver to the
Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in
cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the
Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3rd)
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares
are delivered or Holder rescinds such exercise. The Company agrees to maintain a Transfer Agent that is a participant in the FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to
the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s)
of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time
after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s)
by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date
for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received
by such Warrant Share Delivery Date.
2.4.2.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
2.4.3.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2.4.1 by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.4.4.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2.4.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which
(x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored and return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in which case
such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had
the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having
a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate
sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall
be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder
in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise
of the Warrant as required pursuant to the terms hereof.
2.4.5.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.4.6.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.4.6 duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
2.4.7.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
2.5.
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to
such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates,
and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.5,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.
To the extent that the limitation contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to
any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2.5, in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since
the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2.5, provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to
the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2.5 shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2.5 to correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
3.1.
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise
of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of Shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3.1 shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
3.2.
Subsequent Equity Sales. If, at any time while this Warrant is outstanding (such period, the “Adjustment Period”),
the Company issues, sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement to
sell, or grants any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase
or other disposition), or, in accordance with this Section 3.2, is deemed to have issued or sold, any shares of Common Stock or Common
Stock Equivalents for a consideration per share (the “New Issuance Price”) less than a price equal to the Exercise
Price in effect immediately prior to such issue or sale or deemed issuance or sale (such Exercise Price then in effect is referred to
as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then simultaneously
with the consummation (or, if earlier, the announcement) of such Dilutive Issuance, the Exercise Price then in effect shall be reduced
to an amount (the “New Exercise Price”) equal to the lower of (a) the New Issuance Price or (b) the lowest
VWAP during the Five (5) consecutive Trading Days immediately following the Dilutive Issuance (such lower price, the “Base
Share Price”) and the number of Warrant Shares issuable hereunder shall be proportionately increased such that the aggregate
Exercise Price of this Warrant on the Issuance Date for the Warrant Shares then outstanding shall remain unchanged; provided that the
Base Share Price shall not be less than $0.57 (subject to adjustment for reverse and forward stock splits, recapitalizations
and similar transactions following the date of the Underwriting Agreement) (the “Floor Price”). Notwithstanding
the foregoing, if one or more Dilutive Issuances occurred prior to the Stockholder Approval being obtained and the reduction of the Exercise
Price was limited by the Floor Price, once the Stockholder Approval is obtained, the Exercise Price will automatically be reduced to
equal the lowest Base Share Price with respect to any Dilutive Issuance that occurred prior to the Shareholder Approval being obtained.
If the Company enters into a Variable Rate Transaction, the Company shall be deemed to have issued shares of Common Stock or Common Stock
Equivalents at the lowest possible price, conversion price or exercise price at which such securities may be issued, converted or exercised.
Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3.2 in respect of an Exempt Issuance.
For the avoidance of doubt, in the event the Exercise Price has been adjusted pursuant to this Section 3.2 and the Dilutive Issuance
that triggered such adjustment does not occur, is not consummated, is unwound or is cancelled after the facts for any reason whatsoever,
in no event shall the Exercise Price be readjusted to the Exercise Price that would have been in effect if such Dilutive Issuance had
not occurred or been consummated. For all purposes of the foregoing, the following shall be applicable:
3.2.1.
Issuance of Options. If, during the Adjustment Period, the Company in any manner grants or sells any Options and the lowest
price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion, exercise or
exchange of any convertible securities (“Convertible Securities”) issuable upon exercise of any such Option
(such shares of Common Stock issuable upon such exercise of any Option or upon conversion, exercise or exchange of any Convertible Securities,
the “Convertible Securities Shares”) is less than the Applicable Price, then such shares of Common Stock shall
be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such
price per share. For purposes of this Section 3.2.1, the “lowest price per share for which one share of Common Stock is issuable
upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of
any such Option” shall be equal to (A) the sum of (1) the lowest amount of consideration (if any) received or receivable by the
Company with respect to any one Convertible Securities Share upon the granting or sale of such Option, upon exercise of such Option and
upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option and (2) the lowest exercise price
set forth in such Option for which one Convertible Securities Share is issuable upon the exercise of any such Option or upon conversion,
exercise or exchange of any Convertible Securities issuable upon exercise of any such Option, minus (B) the sum of all amounts paid or
payable to the holder of such Option (or any other Person), with respect to any one Convertible Securities Share, upon the granting or
sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon
exercise of such Option plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such
Option (or any other Person), with respect to any one Convertible Securities Share. Except as contemplated below, no further adjustment
of the Exercise Price shall be made upon the actual issuance of such Convertible Securities Share or of such Convertible Securities upon
the exercise of such Options or upon the actual issuance of such Convertible Securities Share upon conversion, exercise or exchange of
such Convertible Securities.
3.2.2.
Issuance of Convertible Securities. If, during the Adjustment Period, the Company in any manner issues or sells any Convertible
Securities and the lowest price per share for which one Convertible Securities Share is issuable upon the conversion, exercise or exchange
thereof is less than the Applicable Price, then such Convertible Securities Share shall be deemed to be outstanding and to have been
issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes
of this Section 3.2.2, the “lowest price per share for which one Convertible Securities Share is issuable upon the conversion,
exercise or exchange thereof” shall be equal to (A) the sum of (1) the lowest amount of consideration (if any) received or receivable
by the Company with respect to one Convertible Securities Share upon the issuance or sale of the Convertible Security and upon conversion,
exercise or exchange of such Convertible Security and (2) the lowest conversion price set forth in such Convertible Security for which
one Convertible Securities Share is issuable upon conversion, exercise or exchange thereof, minus (B) the sum of all amounts paid or
payable to the holder of such Convertible Security (or any other Person), with respect to any one Convertible Securities Share, upon
the issuance or sale of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred
on, the holder of such Convertible Security (or any other Person), with respect to any one Convertible Securities Share. Except as contemplated
below, no further adjustment of the Exercise Price shall be made upon the actual issuance of such Convertible Securities Share upon conversion,
exercise or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise
of any Options for which adjustment of the Exercise Price has been or is to be made pursuant to other provisions of this Section 3.2,
except as contemplated below, no further adjustment of the Exercise Price shall be made by reason of such issue or sale.
3.2.3.
Change in Option Price or Rate of Conversion. If, during the Adjustment Period, the purchase or exercise price provided
for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible
Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for shares of Common
Stock increases or decreases at any time (other than proportional changes in conversion or exercise prices, as applicable, in connection
with an event referred to in Section 3.1), the Exercise Price in effect at the time of such increase or decrease shall be adjusted to
the Exercise Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased
or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially
granted, issued or sold. For purposes of this Section 3.2.3, if the terms of any Option or Convertible Security that was outstanding
as of the date of issuance of this Warrant are increased or decreased in the manner described in the immediately preceding sentence,
then such Option or Convertible Security and the Convertible Securities Share deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 3.2 shall be
made if such adjustment would result in an increase of the Exercise Price then in effect.
3.2.4.
Calculation of Consideration Received. If any Option or Convertible Security is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (the “Primary Security”, and such
Option or Convertible Security, the “Secondary Securities” and together with the Primary Security, each a “Unit”),
together comprising one integrated transaction, the aggregate consideration per share with respect to such Primary Security shall be
deemed to be the lowest of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Convertible Security,
the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary
Security in accordance with Section 3.2.1 or 3.2.2 above and (z) the lowest VWAP of the shares of Common Stock on any Trading Day during
the Five (5) consecutive Trading Days immediately following the consummation (or, if applicable, the announcement) of such Dilutive Issuance
(for the avoidance of doubt, if such public announcement, if applicable, is released prior to the opening of the Principal Market on
a Trading Day, such Trading Day shall be the first Trading Day in such Five (5) Trading Day period and if this Warrant is exercised on
any given Exercise Date during any such period, the Holder may elect to earlier end such period (including, solely with respect to such
portion of this Warrant exercised on such applicable Exercise Date)). If any shares of Common Stock, Options or Convertible Securities
are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount
of cash received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration
other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where
such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such
securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the
date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity
in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be
the fair market value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of
Common Stock, Options or Convertible Securities (as the case may be). The fair market value of any consideration other than cash or publicly
traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within ten
(10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair market value
of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an
independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and
binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
3.2.5.
Record Date. If, during the Adjustment Period, the Company takes a record of stockholders for the purpose of entitling
them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to
subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date
of the issue or sale of shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
3.3.
Subsequent Rights Offerings. In addition to any other adjustments pursuant to Section 3, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all (or
substantially all) of the record holders of any class of shares of Common Stock (the “Purchase Rights”), then
the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
3.4.
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for
such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any
such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution
to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever,
as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has
not been partially or completely exercised at the time of such Distribution, such portion of the Distribution shall be held in abeyance
for the benefit of the Holder until the Holder has exercised this Warrant.
3.5.
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock
or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2.5 on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2.5 on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary,
in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option,
exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the
date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder
an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date
of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock
are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided,
further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such
holders of Common Stock will be deemed to have received common stock/shares of the Successor Entity (which Entity may be the Company
following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value
of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus
the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3.5, (D) a remaining option time equal to the time between the date of the public announcement of the applicable
contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will
be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Business Days
after the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor
entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume
in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3.5 pursuant to
written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock prior to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the
Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume
all of the obligations of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity
or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled
to the benefits of the provisions of this Section 3.5 regardless of (i) whether the Company has sufficient authorized shares of Common
Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
3.6.
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
3.7.
Notice to Holder.
3.7.1.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.7.2.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,
(C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
3.8.
Share Combination Event Adjustment. In addition to the adjustments set forth in Section 3.1 above, if at any time and from
time to time on or after the Issuance Date there occurs any share split, share dividend, share combination recapitalization or other
similar transaction involving the Common Stock (each, a “Share Combination Event”, and such date thereof, the
“Share Combination Event Date”) and the lowest VWAP during the period commencing Five (5) consecutive Trading
Days immediately preceding and the Five (5) consecutive Trading Days commencing on the Share Combination Event Date (the “Event
Market Price”) (provided if the Share Combination Event is effective after close of Trading on the primary Trading Market,
then commencing on the next Trading Day which period shall be the “Share Combination Adjustment Period”) is
less than the Exercise Price then in effect (after giving effect to the adjustment in clause 3.1 above), then at the close of trading
on the primary Trading Market on the last day of the Share Combination Adjustment Period, the Exercise Price then in effect on such Fifth
(5th) Trading Day shall be reduced (but in no event increased) to the Event Market Price and the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price of this Warrant on the Issuance Date for the Warrant Shares then outstanding
shall remain unchanged. For the avoidance of doubt, if the adjustment in the immediately preceding sentence would otherwise result in
an increase in the Exercise Price hereunder, no adjustment shall be made, and if this Warrant is exercised, on any given Exercise Date
during the Share Combination Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise
Date, such applicable Share Combination Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately
prior to such Exercise Date and the Event Market Price on such applicable Exercise Date will be the lowest VWAP of the Common Stock immediately
during such the Share Combination Adjustment Period prior to such Exercise Date and ending on, and including the Trading Day immediately
prior to such Exercise Date.
3.9.
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder,
the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of
time deemed appropriate by the Board of Directors.
3.10.
Stockholder Approval. The Company shall obtain a written consent resolution of the majority of the voting power of the
Company, at the earliest practicable date after the date hereof, but in no event later than twenty (20) days after the Closing Date for
the purpose of obtaining Stockholder Approval, if required, to effect the purpose thereof, with the recommendation of the Board that
such proposal be approved and within such twenty-day time period shall file with the Commission, and deliver to shareholders of the Company,
a written information statement containing the information specified in Schedule 14C detailing such Stockholder Approval. The Company
shall use its reasonable best efforts to obtain such Stockholder Approval, and officers, directors, and shareholders subject to the Lock-Up
Agreement shall vote in favor of such proposal.
3.11.
[Reserved]
4.1.
Transferability. Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto
as Exhibit 2.4.6 duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
4.2.
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3.
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
5.1.
No Rights as Stockholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2.4.1, except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2.3 or to receive cash payments pursuant to Section 2.4.1 and Section 2.4.4 herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
5.2.
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
5.3.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.4.
Authorized Shares.
5.4.1.
Reservation of Authorized and Unissued Shares. The Company covenants that, during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient number of shares of Common Stock to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon
the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant
and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means
that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
5.4.2.
Noncircumvention. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3.
Authorizations, Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof 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 Warrant 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 law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
5.6.
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7.
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact
that the right to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver
by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission
thereunder. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
5.8.
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 135 Fell Court, Hauppauge, NY 11788, Attention: Saagar Govil, Chief Executive Officer,
email address: sgovil@cemtrex.com, or such other email address or address as the Company may specify for such purposes by notice to the
Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered
personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or
address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed
given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail
address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of
transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 5.8 on a day that
is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice
is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K.
5.9.
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
5.10.
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
5.11.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
5.12.
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company,
on the one hand, and the Holder, on the other hand.
5.13.
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
5.14.
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[CETX
Investor Registered Warrant Signature Page Follows]
[CETX
Investor Registered Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this Registered Warrant to be executed by its officer thereunto duly authorized as of the date
first above indicated.
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CEMTREX
INC. |
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By: |
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Name: |
Saagar
Govil |
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Its: |
Chief
Executive Officer |
Exhibit
2.1
NOTICE
OF EXERCISE
To:
CEMTREX INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
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☐ |
in
lawful money of the United States. |
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☐ |
if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2.3. |
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
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of Investing Entity: |
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Title
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Date:
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Exhibit
2.4.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares of Common Stock.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
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