Exhibit 3.1
Delaware The First State Page 1 5081043 8100 SR# 20263573108 You may verify this certificate online at corp.delaware.gov/authver.shtml Authentication: 204389613 Date: 06 - 30 - 26 I, CHARUNI PATIBANDA - SANCHEZ, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF “BIG DIGITAL ENERGY, INC.”, FILED IN THIS OFFICE ON THE THIRTIETH DAY OF JUNE, A.D. 2026, AT 10:10 O`CLOCK A.M.
St a te o f D e l a w a re Sec re t ary o f S ta te Dh , i sio n of Corporati o n s Deli, • e re d 10 : 10A M 06 / 30 / 2 026 FIL E D 10:10 AM 06 / 3 0 / 2 026 SR 2 0 2635 7 3 10 8 - File N umber 50 81043 CERTIFICATE OF DESIGNATIONS OF SERIES D CONVERTIBLE PREFERRED STOCK OF BIG DIGITAL ENERGY, INC. I, Kaliste Saloom, hereby certify that I am the Authorized Officer of Big Digital Energy , Inc . (the "Company"), a corporation organized and existing under the Delaware General Corporation Law (the "DGCL"), and further dohereby certify on behalf of the Company and not in my personal capacity : That pursuant to the authority expressly conferred upon the Board of Directors of the Company (the "Board") by the Company's Amended and Restated Certificate of Incorporation (the "Certificate oflncorporation"), and Section 15 l(g) of the DGCL, the Special Transactions Committee of the Board, with authority delegated by the Board, on June 29 , 2026 , passed the following resolutions, creating a series of preferred stock having a par value of $ 0 . 001 per sha r e, designated as "Series D Convertible Preferred Stock" . RESOLVED, that, in accordance with the provisions of the Certificate of Incorporation, the Special Transactions Committee of the Board does hereby authorize and provide for the establishment, allotment and issuance of a series of preferred stock , par value $ 0 . 001 per share, of the Company designated as "Series D Convertible Preferred Stock" and that the de s ignation and number of shares thereof and the other relative rights, powers and preferences of the shares of such series and the qualifications, limitations and restrictions thereof in accordance with this certificate of designations (this "Certificate of Designations"), as follows : TERMS OF SERIES D CONVERTIBLE PREFERRED STOCK 1. Designation and Number of Shares . There shall hereby be created and established a series of preferred stock of the Company designated as "Series D Convertible Preferred Stock" (the "Preferred Stock") . The authorized number of Preferred Stock shall be 100 , 000 shares . Each Preferred Share shall have a par value of $ 0 . 001 and shall be certificated and represented in physical or electronic stock - certificate form . Capitalized term s not defined herein shall have the meanings as set forth in Section 33 below . 2. Ranking . For so long as any Preferred Stock are issued, except (x) as permitted pursuan t to Section 15 (e) or (y) to the extent that the Required Holders (as defined below) e xpressly consent to the creation of Parity Shares or Senior Preferred Stock (as defined below ) in accordance with Section 18 , all shares in the capital of the Company shall be junior in rank to the Pr e ferred Stock with respect to the preference s as to divid e nds, distributions a nd payment s upon the liquidation, dissolution and winding up of the Company (such junior shares are referred to herein collectively as "Junior Shares") . The rights of all shares in the capital of the Company shall b e subjec t t o the rights, powers , preference s and privileges of th e Preferred Stock . Without limiting any other pro v ision of this Certificat e of Designations, withou t the prior express consent of holders of at leas t a majority of the issued Preferred Stock and Yorkville (as defined below ) (collec t ively, the "Required Holders"), voting s eparately a s a s ingle cl a s s, th e Compan y sh a ll not h e reafter authori z e or issu e any a dditional or oth e r s hares in t he capital of the Company t hat is (i) of senior rank to the Preferred Sto c k in respect of the preferences as to di v idends , distributions 49 08 - 8 91 4 - 4248 v . 14 4 9 3 4 - 35 I0 - 8 0 25 \ 7
and payments upon the liquidation, dissolution and winding up of the Company (collectively, the "Senior Preferred Stock"), (ii) of pari passu rank to the Preferred Stock in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Company (collectively, the "Parity Shares") or (iii) any Junior Shares having a maturity date or which is mandatorily redeemable or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 90 days after the date that no Preferred Stock remain issued, except, in the case of the foregoing clause (i) and (ii), to the extent permitted pursuant to Section 15 (e) . In the event of the merger or consolidation of the Company with or into another corporation, so long as any Preferred Stock remain issued, the Preferred Stock shall maintain their relative rights, powers, designations, privileges and preferences provided for herein and nosuch merger or consolidation shall be consummated if it would result in the Preferred Stock being treated in any manner inconsistently with the foregoing, unless the Company has exercised its right of Company Optional Redemption in full prior to or in connection with such merger or consolidation and actually pays the applicable Company Optional Redemption Price prior to or simultaneously with such merger or consolidation . 3. Dividends. (a) Dividends . Each holder of a Preferred Share (each, a "Holder" and collectively, the "Holders"), shall be entitled to receive dividends ("Dividends") on the Stated Value of its Preferred Stock at the applicable Dividend Rate (as defined below) . Dividends on the Preferred Stock shall commence accruing on the date of issuance of a Preferred Share and shall be computed on the basis of a 360 - day year and twelve 30 - day months . Dividends shall be payable quarterly in arrears on the last Trading Day of each quarter (each, a "Dividend Date") . On each Dividend Date, the Company shall, at its election, (i) pay such Dividend through the issuance of additional Preferred Stock ("PIK Shares") to each holder equal to the quotient of (x) the aggregate amount of Dividends accrued on such Holder's Preferred Stock and (y) the Stated Value or (ii) pay such Dividend in cash ; provided, however, that the Company shall not pay any Dividend in cash to the extent prohibited by applicable law or agreements governing the Company's debts or other liabilities . If the Company elects to pay a Dividend through the issuance of PIK Shares, the Company shall promptly after each Dividend Date deliver to each Holder stock certificate receipts evidencing the issuance of the PIK Shares on such Dividend Date, if any such PIK Shares are so issued on such Dividend Date . Dividends on the Preferred Stock as provided in this Section 3 (a) shall accrue and be payable whether or not declared , set aside for payment or otherwise authorized by the Board and whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends, such that if Dividends are not paid as provided in this Section 3 (a), the unpaid Dividends shall accumulate until paid . 4. Conversion . At any time beginning two months after the Initial Issuance Date, each Preferred Share shall be convertible into validly issued, fully paid and non - assessable shares of Common Stock (as defined below), on the terms and conditions set forth in this Section 4 . (a) Holder's Conversion Right . Subject to the provisions of Section 4 (d), at any time or times on or after the date that is two ( 2 ) months after the Initial Issuance Date, each Holder shall be entitled to convert any Preferred Stock held by such Holder into validly 2 4934 . 3 5 I 0 - 8025 \ 7
3 4934 - 3 510 - 8025 \ 7 issued, fully paid and non - assessable shares of Common Stock in accordance with Section 4 (c) at the Conversion Rate (as defined below) . The Company shall not issue any fraction of a share of Common Stock upon any conversion . If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole share . The Company shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent (as defined below)) that may be payable with respect to the issuance and delivery of Common Stock upon conversion of any Preferred Stock, except any such taxes that are due because the converting Holder requests the shares of Common Stock to be registered in a name other than the Holder's name . (b) Conversion Rate. The number of shares of Common Stock issuable upon conversion of any Preferred Share pursuant to Section 4(a) shall be determined by dividing (x) the Conversion Amount of such Preferred Share by (y) the Conversion Price (the "Conversion Rate") : (i) "Conversion Amount" means, with respect to each Preferred Share, as of the applicable date of determination, the sum of (A) the Stated Value thereof plus (B) any Additional Amount thereon as of such date of determination . (ii) "Conversion Price" means, with respect to each Preferred Share, as of any Conversion Date or other date of determination, 95 % of the lowest daily VWAP of the Common Stock during the five ( 5 ) consecutive Trading Day period immediately preceding but not including the Conversion Date, provided that the Conversion Price shall not be lower than the Floor Price and subject to adjustment as provided herein . (iii) Derivative Liability Savings Adjustment . Notwithstanding anything to the contrary in this Certificate of Designations, solely with respect to fiscal quarter ending June 30 , 2026 , if the Company's independent registered public accounting finn confinns in writing that, absent an increase in the Floor Price pursuant to this Section 4 (b)(iii), the issuance of the Preferred Stock or the existence, terms or operation of the conversion rights hereunder would be required under U . S . GAAP to result in a Derivative Liability in excess of $ 2 , 000 , 000 , or would cause the Company to breach the Stockholders' Equity Requirement, then the Floor Price shall, effective as of the date of such written confirmation and without further action by the Company or any Holder, be increased solely to the lowest price that such independent registered public accounting firm confirms in writing would (A) limit such Derivative Liability to not more than $ 2 , 000 , 000 and (B) cause the Company to satisfy shareholder's equity maintenance requirement for continued listing on the Nasdaq Capital Market . Any such written confirmation shall include reasonably detailed supporting calculations , shall be delivered to each Holder promptly and in any event within one ( 1 ) Business Day after receipt by the Company, and shall be conclusive absent manifest error . No adjustment under this Section 4 (b)(iii) shall be made based on the Company's internal determination or without such written confirmation, and any increase in the Floor Price pursuant to
4 4934 - 3510 - 8025 \ 7 this Section 4 (b)(iii) shall be no greater than necessary to achieve the foregoing limits . If, after any increase in the Floor Price pursuant to this Section 4 (b)(iii), the Company's independent registered public accounting firm confirms in writing that a lower Floor Price would not result in a Derivative Liability in excess of $ 2 , 000 , 000 or cause the Company's stockholders' equity to be less than the Stockholders' Equity Requirement as of any fiscal quarter end, then the Floor Price shall automatically decrease to such lower price, but in no event below the Floor Price in effect immediately prior to the applicable increase under this Section 4 (b)(iii) . Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, this Section 4 (b) shall only be effective with respect to the fiscal quarter ended June 30 , 2026 , and shall not have any force and effect, and shall not be operative, with respect to any other fiscal period of the Company . (c) Any Mechanics of Conversion. The conversion of each Preferred Share shall be conducted in the following manner: (i) Optional Conversion . To conver t a Preferred Share into shares of Common Stock on any date (a "Conversion Date"), a Holder shall deliver (whether via electronic mai l or otherwise ), for receip t on or prior to 11 : 59 p . m . , New York City time, on such date, a copy of an executed notic e of conversion of the share(s) of Preferred Stock subjec t to such conversion in the form attached hereto as Exhibit I (the "Conversion Notice") to the Company . As promptly as practicable, and in any event on or before the second ( 2 nd) Trading Day following the date of receipt of a Conversion Notice, the Company shall transmit by electroni c mail an acknowledgmen t of confirmation of receip t of such Conversion Notice, substantially in the form attached hereto as Exhibit II, to such Holder and the Company's transfer agent (the "Transfer Agent"), which confirmation shall constitute an instruction to the Transfer Agent to proces s such Conversion Notice in accordanc e with the terms herein . On or before the second ( 2 nd) Trading Day following each date on which the Company has received a Conversion Notice (the "Share Delivery Deadline"), the Company shall : (l) provided tha t the Transfer Agent is participating in DTC's Fas t Automated Securitie s Transfer Program ("FAST"), credit such aggregate number of shares of Common Stock to which such Holder shall be entitled pursuan t to such conversion to such Holder's or its designee's balanc e account with DTC through its Deposit/Withdrawa l at Custodian system, or ( 2 ) if the Transfer Agent is not participating in FAST, upon the request of such Holder, issu e and deliver (whether via electronic email or reputable overnigh t courier) to the address as specified in such Conversion Notice, a Book - Entry Statement, registered in the name of such Holder or its designee, for the number of shares of Common Stock to which such Holder shall be entitled . If less than all of the Preferred Stock then held by a Holder are submitted for conversion pursuan t to any Conversion Notice, then the Company shall, as soon as practicable and in no event later than two ( 2 ) Trading Days after receipt of the applicable Conversion Notice and at its own expense, issue and deliver to such Holder (or its designee) a new stock certificate (in accordance with Section 20 (c)) representing the number of Preferred Stock not converted . The Person or Person s entitled to receive the shares of Common Stock issuable upon a conversion of Preferred Stock
balance account of such Holder or such Holder's designee, as applicable, with DTC 5 4934 - 3510 - 8025 \ 7 shall be treated for all purposes as the record holder or holders of such shares of Common Stock on the Conversion Date. (ii) Company's Failure to Timely Convert . If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery Deadline, if the Transfer Agent is not participating in FAST, to issue and deliver to such Holder (or its designee) a Book - Entry for the number of shares of Common Stock to which such Holder is entitled and register such shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in FAST, to credit such Holder's or its designee's balance account with DTC for such number of shares of Common Stock to which such Holder is entitled upon such Holder's conversion of any Conversion Amount (as the case may be) (a "Conversion Failure"), then, in addition to all other remedies available to such Holder, such Holder, upon written notice to the Company, may void its Conversion Notice with respect to, and retain or have returned, as the case may be, all, or any portion, of such Preferred Stock that has not been converted pursuant to such Conversion Notice ; provided that the voiding of a Conversion Notice shall not affect the Company's obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 4 (c)(ii) or otherwise . In addition to the foregoing, if on or prior to the Share Delivery Deadline the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver to such Holder (or its designee) a Book - Entry and register such shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in FAST, the Transfer Agent shall fail to credit the balance account of such Holder or such Holder's designee, as applicable, with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder's conversion hereunder or pursuant to the Company's obligation pursuant to clause (II) below, and if on or after such Share Delivery Deadline such Holder purchases (in an open market transaction, shares loan or otherwise) shares of Common Stock corresponding to all or any portion of the number of shares of Common Stock issuable upon such conversion that such Holder is entitled to receive from the Company and has not received from the Company in connection with such Conversion Failure, as applicable (a "Buy - In"), then, in addition to all other remedies available to such Holder, the Company shall, within three ( 3 ) Business Days after receipt of such Holder's request and in such Holder's discretion, either : (I) pay cash to such Holder in an amount equal to such Holder's total purchase price (including brokerage commissions, shares loan costs and other out - of - pocket expenses, if any) for the shares of Common Stock so purchased (including, without limitation, by any other Person in respect, or on behalf, of such Holder) (the "Buy - In Price"), at which point the Company's obligation to so issue and deliver such Book - Entry (and to issue such shares of Common Stock) or credit to the balance account of such Holder or such Holder's designee, as applicable, with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder's conversion hereunder ( as the case may be) (and to issue such shares of Common Stock) shall terminate, or (II) promptly honor its obligation to so issue and deliver to such Holder a Book - Entry representing such shares of Common Stock or credit the
6 4 9 34 - 35 10 - 8 02 5 \ 7 for the number of shares of Common Stock to which such Holder is entitled upon such Holder's conversion hereunder (as the case may be) and pay cash to such Holder inan amount equal to the excess (if any) of the Buy - In Price over the product of (x) such number of shares of Common Stock multiplied by (y) the lowest Closing Sale Price of the Common Stock on any Trading Day during theperiod commencing on the date of the applicable Conversion Notice and ending on the date of such issuance and payment under this clause (II) . Nothing herein shall limit the Holder's right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company's failure to timely deliver a Book Entry representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the conversion of Preferred Stock as required pursuant to the terms hereof . (iii) Registration : Book - Entry . The Company (or the Transfer Agent, as custodian for the Preferred Stock) shall maintain a register (the "Register") for the recordation of the names and addresses of the Holders of each Preferred Share and the Stated Value of the Preferred Stock (the "Registered Preferred Stock") . The entries in the Register shall be conclusive and binding for all purposes absent manifest error . The Company and each Holder of the Preferred Stock shall treat each Person whose name is recorded in the Register as the owner of a Preferred Share for all purposes (including, without limitation, the right to receive payments and Dividends hereunder) notwithstanding notice to the contrary . A Registered Preferred Share may be assigned, transferred or sold only by registration of such assignment or sale on the Register . Upon its receipt of a written request to assign, transfer or sell one or more Registered Preferred Stock by such Holder thereof, the Company shall record the information contained therein in the Register and issue one or more new Registered Preferred Stock in the same aggregate Stated Value as the Stated Value of the surrendered Registered Preferred Stock to the designated assignee or transferee pursuant to Section 20 , provided that, subject to Section 19 , if the Company has granted its consent to an assignment or other transfer (or such consent is not required in accordance with Section 19 ) and the Company does not so record an assignment, transfer or sale (as the case may be) of such Registered Preferred Stock within two ( 2 ) Business Days of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer or sale (as the case may be) . Each Holder and the Company shall maintain records showing the Stated Value, Dividends converted and/or paid (as the case may be) and Late Charges converted and/or paid (as the case may be), and the dates of such conversions and/or payments (as the case may be), or shall use such other method, reasonably satisfactory to such Holder and the Company, and if the Company does not update the Register to record such Stated Value, Dividends converted and/or paid (as the case may be) and Late Charges converted and/or paid (as the case may be), and the dates of such conversions and/or payments (as the case may be), within two ( 2 ) Business Days of such occurrence, then the Register shall be automatically deemed updated to reflect such occurrence . In the event of any dispute or discrepancy, such records of the Company establishing the number of Preferred Stock to which the record holder is entitled shall be controlling and determinative
7 4934 - 3 510 - 8025 \ 7 in the absence of manifest error . A Holder and any transferee or assignee, by acceptance of a Book - Entry, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of any Preferred Stock, the number of Preferred Stock represented by such Book - Entry may be less than the number of Preferred Stock stated in the most recent Book - Entry statement delivered to the Holder . Each Book - Entry representing Preferred Stock shall bear the following legend : ANY TRANSFEREE OR ASSIGNEE OF THIS INSTRUMENT SHOULD CAREFULLY REVIEW THE TERMS OF THE CORPORATION'S CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES D PREFERRED STOCK REPRESENTED BY THIS INSTRUMENT, INCLUDING SECTION 4 (c)(iii) THEREOF . THE NUMBER OF SHARES OF SERIES D PREFERRED STOCK REPRESENTED BY THIS INSTRUMENT MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES D PREFERRED STOCK STATED ON THE FACE HEREOF PURSUANT TO SECTION 4 (c)(iii) OF THE CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES D PREFERRED STOCK REPRESENTED BY THIS INSTRUMENT . (iv) Pro Rata Conversion ; Disputes . In the event that the Company receives a Conversion Notice from more than one Holder for the same Conversion Date and the Company can convert some, but not all, of such Preferred Stock submitted for conversion, the Company shall convert from each Holder electing to have Preferred Stock converted on such date a Holder Pro Rata Amount of such Holder's Preferred Stock submitted for conversion on such date based on the number of Preferred Stock submitted for conversion on such date by such Holder relative to the aggregate number of Preferred Stock submitted for conversion on such date . In the event of a dispute as to the number of shares of Common Stock issuable to a Holder in connection with a conversion of Preferred Stock, the Company shall issue to such Holder the number of shares of Common Stock not in dispute and resolve such dispute in accordance with Section 25 . (d) Limitation on Beneficial Ownership . The Company shall not effect the conversion of any of the Preferred Stock held by a Holder, and such Holder shall not have the right to convert any of the Preferred Stock held by such Holder pursuant to the terms and conditions of this Certificate of Designations, and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 4 . 99 % (the "Maximum Percentage") of the shares of Common Stock outstanding immediately after giving effect to such conversion . For purposes of the foregoing sentence, the aggregate number of shares of Common Stock
8 4934 - 3 510 - 8025 \ 7 beneficially owned by such Holder and the other Attribution Parties shall includ e the number of shares of Common Stock held by such Holder and all other Attribution Parties plus the number of shares of Common Stock issuabl e upon conversion of the Preferred Stock with respect to which the determination of such sentence is being made, bu t shall exclud e shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted Preferred Stock beneficially owned by such Holder or any of the other Attribution Partie s and (B) exercis e or conversion of the unexercised ornonconverted portion of any other securitie s of the Company (including, withou t limitation, any convertible notes, convertibl e Preferred Stock or warrants, including the Preferred Stock) beneficially owned by such Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 4 (d) . For purposes of this Section 4 (d), beneficial ownership shall be calculated in accordance with Section 13 (d) of the 1934 Act . In addition, a determination a s to any group status as contemplated above shall be determined in accordanc e with Section 13 (d) of the 1934 Act and the rules and regulations promulgated thereunder . For purposes of detennining the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Preferred Stock without exceeding the Maximum Percentage, such Holder may rely on the number of shares of Common Stock outstanding as reflected in (x) the Company's mos t recent Annual Repor t on For m 10 - K, Curren t Repor t on Form 8 - K or other public filing with the SEC, as the cas e may be,(y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the "Reported Outstanding Share Number") . If the Company receive s a Conversion Notic e from a Holder a t a time when the actual number of shares of Common Stock outstanding is less than the Reported Outstanding Share Number, the Company shall notify such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder's beneficia l ownership, as determined pursuan t to this Section 4 (d), to exceed the Maximu m Percentage, such Holder mus t notify the Company of a reduced number of shares of Common Stock to be purchased pursuan t to such Conversion Notice . For any reason at any time, upon the written or ora] request of any Holder, the Company shall within two( 2 ) Busines s Day s confinn in writing or by electroni c mai l to such Holder the number of shares of Common Stock then outstanding . In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securitie s of the Company, including such Preferred Stock, by such Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported . In the event that the issuance of shares of Common Stock to a Holder upon conversion of such Preferred Stock results in such Holder and the other Attribution Partie s being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as detennined under Section 13 (d) of the 1934 Act), the number of shares so issued by which such Holder's and the other Attribution Parties' aggregate beneficial ownership exceed s the Maximu m Percentag e (the "Excess Shares") shall be deemed null and void and shall be cancelled ab initio, and such Holder shall not have the power to vote or to transfer the Excess Shares . For purposes of clarity, the shares of Common Stock issuable to a Holder pursuan t to the tenns of this Certificat e of Designation s in excess of the Maximum Percentage shall not be deemed to be beneficially
4934 - 3 510 - 8025 \ 7 owned bysuch Holder for any purpose including for purposes of Section 13 (d) or Rule 16 a - l(a)(l) of the 1934 Act . No prior inability to convert such Preferred Stock pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility . The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4 (d) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 4 (d) or to make changes or supplements necessary or desirable to properly give effect to such limitation . The limitation contained in this paragraph may not be waived or eliminated (except by an amendment to this Certificate of Designations) and shall apply to a successor holder of such Preferred Stock . Notwithstanding the foregoing, this Section 4 (d) shall not apply to any Holder that, together withsuch Holder's other Attribution Parties, beneficially owns shares of Common Stock in excess of the Maximum Percentage as of the first date on which such Holder acquires Preferred Stock . (e) Conversion Limitation . During any calendar month, so long as no Triggering Event has occurred and is continuing, no Holder shall convert Preferred Stock to the extent that the aggregate dollar value of the shares of Common Stock issuable upon all conversions by Holders during such calendar month would exceed the greater of (a) ten percent ( 10 % ) of aggregate dollar trading volume of the Common Stock during such calendar month or (b) $ 2 . 0 million . For the avoidance of doubt, after the occurrence and during the continuance of a Triggering Event the limitations set forth in this Section 4 (e) shall have no force and effect . (t) Principal Market Regulation . The Company shall not issue any shares of Common Stock uponconversion of any Preferred Shares or otherwise pursuant to the terms of this Certificate of Designations if the issuance of such shares of Common Stock together with the number of shares issued under that certain Warrant would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Preferred Shares without breaching the Company's obligations under the listing rules of the Principal Market (the number of shares which may be issued without violating such rules, including rules related to the aggregate offerings under NASDAQ Listing Rule 5635 (d) and NYSE Listed Company Manual Section 312 . 03 (c), as applicable, the "Exchange Cap"), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable listing rules of the Principal Market for issuances of shares of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Required Holders . Until such approval or such written opinion is obtained, no Holder shall be issued in the aggregate, upon conversion of any Preferred Shares, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Initial Issuance Date multiplied by (ii) the quotient of ( 1 ) the aggregate number of Preferred Shares issued to such Holder on the Initial Issuance Date divided by ( 2 ) the aggregate number of Preferred Shares issued to the Holders on the Initial Issuance Date (with respect to each Holder, the "Exchange Cap Allocation") . In the event that any Holder shall sell or otherwise transfer any of such Holder's Preferred Shares, the transferee shall be allocated a pro rata portion 9
4934 - 3 510 - 8025 \ 7 of such Holder's Exchange Cap Allocation with respect to such portion of such Preferred Shares so transferred, and the restrictions of the priorsentence shall applyto suchtransferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee . Upon conversion in full of a Holder's Preferred Shares, the difference (if any) between such Holder's Exchange Cap Allocation and the number of shares of Common Stock actually issued to such Holder upon such Holder's conversion in full of such Preferred Shares shall be allocated to the respective Exchange Cap Allocations of the remaining Holders of Preferred Shares on a pro rata basis in proportion to the shares of Common Stock underlying the Preferred Shares then held by eachsuch Holder of Preferred Shares . 5. Triggering Events. (a) Triggering Event . Each of the following events, in each case to the extent such event (disregarding any cure period) occurs following the Initial Issuance Date, shall constitute a "Triggering Event" : (i) the suspension from trading or the failure of the shares of Common Stock to be trading or listed (as applicable) on an Eligible Market for a period of ten ( 10 ) consecutive Trading Days ; (ii) the Company's (A) failure to cure a Conversion Failure (as defined herein) by delivery of the required number of shares of Common Stock within three ( 3 ) Trading Days after the applicable Conversion Date or (B) written notice to any Holder of Preferred Stock, including, without limitation, by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required, with a request for conversion of any Preferred Stock into shares of Common Stock that is requested in accordance with the provisions of this Certificate of Designations (for the avoidance of doubt, other than the Company's valid refusal to effectuate a conversion in accordance with Section 4 (d) or Section 4 (f) hereof) ; (iii) except to the extent the Company is in compliance with Section lO(b) below, at any time following the tenth ( 10 th) consecutive day that a Holder's Authorized Share Allocation (as defined in Section lO(a) below) is less than 100 % of the number of shares of Common Stock that such Holder would be entitled to receive upon a conversion in full, of all of the Preferred Stock then held by such Holder (assuming conversion at the Floor Price then in effect without regard to any limitations on conversion set forth in this Certificate of Designations) ; (iv) the Company's failure to pay to any Holder any Dividend on any Dividend Date (whether or not declared by the Board) , solely to the extent such failure remains uncured for a period of at least five ( 5 ) Trading Days after the Company's receipt of written notice thereof ; (v) the Company's failure to pay any other amount due in cash when and as due under this Certificate of Designations (including, without limitation, the Company's failure to pay any Late Charges or other amounts due in cash
11 4934 - 3510 - 8025 \ 7 hereunder), the Securities Purchase Agreement or any other Transaction Document or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby (in each case, whether or not permitted pursuant to the DGCL), solely to the extent such failure remains uncured for a period of at least five ( 5 ) Trading Days after the Company's receipt of written notice thereof ; (vi) the Company fails to deliver the shares of Common Stock issuable upon a conversion of Preferred Stock without a restrictive legend either on any Book - Entry representing such shares of Common Stock or by credit of such shares of Common Stock to such Holder's or its designee's balance account with DTC as and when required by this Certificate of Designations, unless otherwise then prohibited by applicable federal securities laws, and any such failure remains uncured for at least five ( 5 ) Trading Days after the Company's receipt of written notice thereof ; (vii) the Company or any of its Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either : (1) commences a voluntary case or proceeding; (2) consents to the entry of an order for relief against it in an involuntary case or proceeding; (3) consents to the appointment of a custodian of it or for substantially all of its property; (4) makes a general assignment for the benefit of its creditors; (5) takes any comparable action under any foreign Bankruptcy Law; or (6) is not paying its undisputed debts as they become due, and such failure continues unremedied for a period of thirty ( 30 ) consecutive days ; (viii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either : (l) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case or proceeding; (2) appoint s a custodian of the Company or any of its Significant Subsidiaries, or for any substantia l part of the property of the Company or any of its Significan t Subsidiaries ; (3) orders the winding up or liquidation of the Company or any Significant Subsidiary ; or
12 4934 - 3510 - 8025 \ 7 (4) grants any similar relief under any foreign Bankruptcy Law, and, in each case under this subsection (viii), such order or decree remains unstayed and in effect for at least sixty (60) days; (ix) one or more final and non - appealable judgment being rendered against the Company or any of its Significant Subsidiaries for the payment of at least $ 10 , 000 , 000 in the aggregate (excluding any amounts covered by insurance or bond), where such judgment is not discharged, stayed, vacated or otherwise satisfied within sixty ( 60 ) days after (A) the date on which the right to appeal the same has expired, if no such appeal has commenced or (B) the date on which all rights to appeal have been extinguished (for the avoidance of doubt, excluding any judgments or awards in favor of Affiliates of Celsius Mining LLC occurring prior to the Initial Issuance Date) ; (x) default by the Company or any of its Subsidiaries with respect to any one or more mortgages, agreements or other instruments under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of at least $ 2 , 500 , 000 (or its foreign currency equivalent) in the aggregate of the Company or any of its Subsidiaries, whether such indebtedness exists as of the Initial Issuance Date or is thereafter created, where such default constitutes a failure to pay principal or interest on such indebtedness or results in such indebtedness becoming or being declared due and payable prior to its stated maturity (for the avoidance of doubt, excluding any amounts owed to Affiliates of Celsius Mining LLC on account of judgments or awards occurring prior to the Initial Issuance Date or any amount shown as unpaid or past due on Schedule 3 . l(aa) to the Securities Purchase Agreement) ; (xi) other than as specifically set forth in another clause of this Section 5 (a), the Company or any Subsidiary breaches any representation or warranty made by or on behalf of the Company or such Subsidiary in any Transaction Document in any material respect (other than the representations or warranties subject to material adverse effect or materiality, which may not be breached in any respect) or any material covenant or other material term or condition of any Transaction Document, except, in the case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of thirty ( 30 ) consecutive days after the Company's receipt of written notice thereof ; (xii) a false or inaccurate certification (including a false or inaccurate deemed certification) by the Company as to whether any Triggering Event has occurred ; (xiii) any breach or failure in any respect by the Company or any Subsidiary to comply with any provision of Section 15 (e) of this Certificate of Designations, only if such breach remains uncured for a period of five ( 5 ) consecutive Trading Days ; or
13 4934 - 3510 - 8025 \ 7 (xiv) any breach or failure in any material respect by the Company to comply with the covenant titled "Equity Classification ; Stockholders' Equity" in Section 15 , or any representation or warranty made by the Companythereinproving to have been false or inaccurate in any material respect when made or deemed made (it being understood and agreed that failure to comply with the Stockholders' Equity Requirement as of any applicable measurement date shall constitute such a material breach, failure, falsehood or inaccuracy) . (b) Notice of a Triggering Event . Within two ( 2 ) Business Days after becoming aware of the occurrence of a Triggering Event, the Company shall deliver written notice thereof via electronic mail to each Holder . 6. Rights Upon Fundamental Transactions. (a) Assumption . The Company shall not enter into or be party to a Fundamental Transaction unles s (i) (x) the Successor Entity or its Parent Entity (in which case, all subsequen t reference s to "Successor Entity" in this paragraph shall be deemed to refer to such Parent Entity) assume s in writing all of the obligation s of the Company under this Certificate of Designation s and the other Transaction Documents in accordanc e with the provisions of this Section 6 (a) pursuant to written agreement s in form and substance reasonably satisfactory to the Required Holders and approved by the Required Holders prior to such Fundamental Transaction (such approva l not to be unreasonably withheld, conditioned or delayed), including agreement s to deliver to each Holder of Preferred Stock in exchang e for such Preferred Stock a security of the Successor Entity evidenced by a written instrumen t substantially similar in form and substance to this Certificat e of Designations, including, without limitation, having a stated value and dividend rate equal to the stated value and dividend rate of the Preferred Stock held by the Holder s and having similar ranking to the Preferred Stock, and satisfactory to the Required Holder s and (y) the Successor Entity is a publicly traded corporation whos e common equity is quoted on or listed for trading on an Eligibl e Market or (ii) the Company exercise s its right of Company Optional Redemption in full effective upon the consummation of such Fundamental Transaction . Excep t in the cas e of the foregoing clause (ii), upon the occurrence of any Fundamental Transaction, (A) the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamenta l Transaction, the provisions of this Certificate of Designation s and the other Transaction Document s referring to the "Company" shall refer instead to the Successor Entity), and may exercis e every right and power of the Company and shall assume all of the obligations of the Company under this Certificate of Designation s and the other Transaction Documents with the same effec t as if such Successor Entity had been named as the Company herein and therein, and (B) the Successor Entity shall deliver to each Holder confirmation tha t ther e shall be issued upon conversion of the Preferred Stock at any time after the consummation of such Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 7 and 15 , which shall continue to be receivabl e thereafter)) issuable upon the conversion of the Preferred Stock prior to such Fundamental Transaction, such shares of the publicly traded common equity (or their equivalent) of the Successor Entity which each Holder would have been entitled to receive upon the happening of such Fundamental Transaction had all the Preferred Stock
to the extent the Company exercises its right of Company Optional Redemption effective 14 49 34 - 35 10 - 8 02 5 \ 7 held by each Holder been converted immediately prior to such Fundamental Transaction at the Conversion Price in effect at such time (without regard to any limitations on the conversion of thePreferred Stock contained in this Certificate of Designations), as adjusted in accordance with the provisions of this Certificate of Designations . Notwithstanding the foregoing, such Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section 6 (a) to permit the Fundamental Transaction without the assumption of the Preferred Stock . The provisions of this Section 6 shall apply similarly and equally to successive Fundamental Transactions and shall be applied without regard to any limitations on the conversion of the Preferred Stock . 7. Rights Upon Issuance of Purchase Rights and Other Corporate Events. (a) Purchase Rights . In addition to any adjustments pursuant to Section 8 and Section 15 below, if at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase shares, warrants, securities or other property pro rata to all or substantially all of the record holders of shares of Common Stock (the "Purchase Rights"), then each Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such Holder could have acquired if such Holder had held the number of shares of Common Stock acquirable upon complete conversion of all the Preferred Stock (without taking into account any limitations or restrictions on the convertibility of the Preferred Stock and assuming for such purpose that all the Preferred Stock were converted at the Conversion Price as of the applicable record date) held by such Holder immediately prior to the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights, provided, however, to the extent that such Holder's right to participate in any such Purchase Right would result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be entitled to participate in such Purchase Right to such extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent of any such excess) and such Purchase Right to such extent shall be held in abeyance (and, if such Purchase Right has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable) for the benefit of such Holder until such time or times, if ever, as its right thereto would not result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times such Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right to be held similarly in abeyance (and, if such Purchase Right has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable)) to the same extent as ifthere had been no such limitation . (b) Other Corporate Events . In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a "Corporate Event"), except
Conversion Price then in effect, (b) shall take all such actions as may be necessary or appropriate 15 4934 - 3510 - 8025 \ 7 upon the consummation of such Fundamental Transaction, the Company shall make appropriate provision to ensure that each Holder will thereafter have the right, at such Holder's option, to receive upon a conversion of all thePreferred Stock held by such Holder (i) such securities or other assets to which such Holder would have been entitled with respect to the shares of Common Stock receivable upon such conversion had such shares of Common Stock been held by such Holder upon the consummation of such Corporate Event (without taking into account any limitations or restrictions on the convertibility of the Preferred Stock set forth in this Certificate of Designations) or (ii) in lieu of the shares of Common Stock otherwise receivable upon such conversion, such securities or other assets received by the holders of shares of Common Stock in connection with the consummation of such Corporate Event in such amounts as such Holder would have been entitled to receive had the Preferred Stock held by such Holder initially been issued with conversion rights for the form of such consideration (as opposed to shares of Common Stock) at a conversion rate for such consideration commensurate with the Conversion Rate in effect at such time . Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Required Holders . The provisions of this Section 7 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any limitations on the conversion of the Preferred Stock set forth in this Certificate of Designations . 8. Rights Upon Issuance of Other Securities . (a) Voluntary Adjustment by Company . Subject to the rules and regulations of the Principal Market, the Company may at any time any Preferred Stock remain issued, with the prior written consent of the Required Holders, reduce the then current Conversion Price to any amount and for any period of time deemed appropriate by the Board . (b) Calculations . All calculations under this Section 8 shall be made by rounding to the nearest cent or the nearest 1 / 100 th of a share, as applicable . The number of shares of Common Stock issued at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock . The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders . The Company will provide a schedule of such calculations to any Holder upon written request . 9. Non - circumvention . The Company hereby covenants and agrees, to the extent that it is within the power and control of the Company, that the Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Certificate of Designations, and will at all times in good faith carry out all the provisions of this Certificate of Designations and take all action as may be required to protect the rights of the Holders hereunder . Without limiting the generality of the foregoing or any other provision of this Certificate of Designations or the other Transaction Documents, the Company (a) shall not increase the par value of any shares of Common Stock receivable upon the conversion of any Preferred Stock above the
16 4934 - 3 510 - 8025 \ 7 in order that the Company may validly and legally issue fully paid and non - assessable shares of Common Stock upon the conversion of Preferred Stock and (c) shall, so long as any Preferred Stock are issued, take all action necessary to reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Stock, the maximum number ofshares of Common Stock as shall from time to time be necessary to effect the conversion of the Preferred Stock then issued (without regard to any limitations on conversion contained herein) . Notwithstandinganything herein to the contrary, if each Holder is not permitted to convert such Holder's Preferred Stock in full for any reason (other than pursuant to restrictions set forth in Section 4 (d) hereof), the Company shall use its reasonable best efforts to promptly remedy such failure, including, without limitation, obtaining such consents or approvals as necessary to effect such conversion into shares of Common Stock . 10. Authorized Shares. (a) Reservation . So long as any Preferred Stock remain issued, the Company shall at all time s reserve out of its authorized and unissued Common Stock a number of shares of Common Stock equal to the sum of (i) l 00 % of the aggregate number of shares of Common Stock as shall from time to time be necessary to effec t the conversion of all of the Preferred Stock then issued at the Floor Price then in effec t (without regard to any limitation s on conversions ) and (ii) 100 % of the aggregate number of shares of Common Stock tha t would be necessary to effec t the conversion of that number of PIK Shares equal toeighteen ( 18 ) months of Dividends on the Preferred Stock then issued at the Floor Price then in effec t (without regard to any limitations on conversions set forth herein) (the "Required Reserv e Amount") . The Required Reserve Amount (including, without limitation, each increas e in the number of shares so reserved) shall be allocated pro rata among the Holder s based on the number of the Preferred Stock held by each Holder on each Issuanc e Date or increase in the number of reserved shares, as the case may be (the "Authorized Share Allocation") . In the event tha t a Holder shall sell or otherwise transfer any of such Holder's Preferred Stock, each transferee shall be allocated a pro rat a portion of such Holder's Authorized Share Allocation . Any shares of Common Stock reserved and allocated to any Person which ceases to hold any Preferred Stock shall be allocated to the remaining Holder s of Preferred Stock, pro rata based on the number of the Preferred Stock then held by the Holders . (b) Insufficient Authorized Shares . If, notwithstanding Section 10 (a) and not in limitation thereof, at any time while any of the Preferred Stock remain issued the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Preferred Stock at least a number of shares of Common Stock equal to the Required Reserve Amount (an "Authorized Share Failure"), then the Company shall immediately take all action necessary to increase the Company's authorized Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Preferred Stock then issued (or deemed issued pursuant to Section l 0 (a) above) . Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authori z ed Share Failure, but in no event later than sixty ( 60 ) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its shareholders for the approval of an increase in the number of authorized Common Stock . Nothing contained
17 493 4 - 3 510 - 8 02 5 \ 7 in Section lO(a) or this Section l 0 (b) shall limit any obligations of the Company under any provision of the Securities Purchase Agreement . 11. Company Optional Redemption . (a) At any time, or from time to time, after the Issuance Date for the applicable Preferred Shares, the Company shall have the right to redeem all or any portion of such Preferred Shares (the "Company Optional Redemption") at a redemption price equal to the Conversion Amount of the Preferred Shares to be redeemed multiplied by I 05 % (such price, subject to adjustment as provided herein, the "Company Optional Redemption Price") . Notwithstanding the foregoing, the Company will not exercise its rights to Company Optional Redemption, or otherwise send a Notice of Company Optional Redemption, unless the Company has sufficient funds legally available to fully pay the Company Optional Redemption Price in respect of allPreferred Shares called for Company Optional Redemption . The Company Optional Redemption Price shall be paid in cash . Notwithstanding the foregoing, if on the date of the Notice of Company Optional Redemption or if at any time during the Company Optional Redemption Period, the Equity Conditions are not, or cease to be, satisfied, then the Company Optional Redemption Price shall be the greater of (x) such portion of the Conversion Amount multiplied by I 05 % and (y) the product of (A) such portion of the Conversion Amount multiplied by (B) the quotient determined by dividing (I) the highest VWAP for the Common Stock during the Company Optional Redemption Period by (II) the Conversion Price in effect on the Trading Day on which such highest VWAP occurs ; provided, such increased Company Optional Redemption Price shall apply only with respect to that portion of the Conversion Amount being redeemed that is convertible into a number of shares of Common Stock that would be required to be registered for resale under the RRA but are not so registered . (b) If the Company elects to effec t a Company Optional Redemption, the Company shall send to the Holders a written notic e (i) notifying the Holder s of the election of the Company to redeem all or the applicable part of the Preferred Shares and the date set for redemption (the "Company Optional Redemptio n Date"), (ii) stating the Conversion Amoun t subject to the Company Optional Redemption (the "Company Optional Redemptio n Amount"), (iii) stating the instructions a Holder must follow to receive payment, and (iv) stating the Company Optional Redemption Price therefor (such notice, a "Notice of Company Optional Redemption") . The Company Optional Redemption Date selected by the Company shall be no less than 12 Trading Days nor more than 60 Trading Days after the date on which the Company provides the Notic e of Company Optional Redemption to the Holder s (such period, "Company Optional Redemptio n Notice Period") . In the case of a partial redemption, then (x) the Preferred Share s to be redeemed will be selected pro rata among the Holders based on the number of the Preferred Shares held by each Holder on the Company Optional Redemption Date and (y) all Conversion Amounts converted by the Holder after the date of the Notice of Company Optional Redemption shall reduce the Company Optional Redemption Amount required to be redeemed on the Company Optional Redemption Date . (c) For the avoidance of doubt, the Holder may convert Preferred Shares, at any time and from time to time during or after a Company Optional Redemption Notice Period
18 493 4 - 3 510 - 8 02 5 \ 7 until 5 : 00 p . m . New York City time on the second ( 2 nd ) Business Day immediately before the applicable Company Optional Redemption Date, except to the extent the Company fails to pay the Company Optional Redemption Price for such Preferred Shares in accordance with this Section 11 . With respect to any portion of the Conversion Amount of the Preferred Shares which have not been converted by a Holder prior to the applicable Company Optional Redemption Date and have been specified to be redeemed by the Company pursuant to the Company Optional Redemption and which have been redeemed in accordance with the provisions of this Section 11 , (i) Dividends, if any, shall cease to accrue on such Preferred Shares, (ii) such Preferred Shares shall no longer be deemed outstanding and (iii) all rights with respect to such Preferred Shares shall cease and terminate . (d) Any such Notice of Company Optional Redemption given in accordance with the provision s of this Section 11 may, at the Company's discretion, be given prior to the completion of a transaction (including a Fundamental Transaction or other transaction) and be subject to the satisfaction (or waiver by the Company) of one or more conditions precedent, including, bu t not limited to, completion of a related transaction . If such Company Optional Redemption is so subjec t to satisfaction of one or mor e conditions precedent, such Notic e of Company Optiona l Redemption shall describe each such condition, and if applicable, shall state that, in the Company's discretion, the applicable Company Optiona l Redemption Date may be delayed until such time (including more than 60 days after the dat e the Notic e of Company Optiona l Redemption was delivered) a s any or all such condition s shall be satisfied (or waived by the Company), or such Company Optional Redemption may not occur and such Notic e of Company Optional Redemption may be rescinded in the event that any or all such condition s shall not have been satisfied (or waived by the Company) by such Company Optiona l Redemption Date, or by such Company Optional Redemption Date as so delayed . In addition, the Company mayprovide in such Notic e of Company Optional Redemption that payment of the Company Optional Redemption Price and performanc e of the Company's obligations with respect to such Company Optional Redemption may be performed by another Person . If any such condition preceden t has not been satisfied (or waived by the Company), the Company shall provide written notice to the Holders no later than the close of business on the third ( 3 rd) Busines s Day prior to the applicable Company Optional Redemption Date . To the extent any such condition preceden t is satisfied (or waived by the Company) prior to the Company Optiona l Redemption Date, the Company shall promptly provid e written notice to the Holder s of the completion of the condition s precedent . Upon the Company providing such written notice to the Holders, the Notice of Company Optional Redemption shall be rescinded or delayed, and the Company Optional Redemption of the Preferred Shares shall be rescinded or delayed, in each case , as provided in such Notic e of Company Optional Redemption . 12. Reserved. 13. Reserved. 14. Voting Rights. Holders of the Preferred Stock shall be entitled to written notice of all shareholders meetings or written consents, as well as copies of proxy materials and other
19 493 4 - 3 510 - 8 02 5 \ 7 information sent to shareholders . Notwithstanding the foregoing, except as required by applicable law or as expressly set forth herein, the holders of the Preferred Stock shall not be entitled to vote the Preferred Stock on any matter presented to the shareholders of the Company for their action or consideration, whether at a meeting or by written consent . 15. Covenants. For so long as any Preferred Stock are outstanding, without the prior written consent of the Required Holders: (a) Incurrence oflndebtedness . The Company shall not, nor shall the Company permit any of its Subsidiaries to, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness for borrowed money, except for Permitted Indebtedness . (b) Existence of Liens . The Company shall not, nor shall the Company permit any of its Subsidiaries to create, assume or suffer to exist any Lien to secure Indebtedness on any property or assets now owned or hereafter acquired by the Company or any of its Subsidiaries except for Permitted Liens . (c) Restriction on Redemption and Cash Dividends . The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on any of its capital shares (other than as required by this Certificate of Designations) . (d) Preservation of Existence, Etc . The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary ; provided, however, that the Company shall not be required to preserve any such corporate existence of any of its Subsidiaries if, in the judgment of the Company, the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and all material assets of any such Subsidiaries have been assigned to the Company or another Subsidiary, in each case where such restructuring does not have a material impact on the Company's ability to comply with the provisions hereof . (e) Restricted Issuances . The Company shall not, directly or indirectly, without the prior written consent of the Required Holders, (i) issue any Preferred Stock (other than as contemplated by the Securities Purchase Agreement and this Certificate of Designations), (ii) issue any other securities that would cause a breach or default under this Certificate of Designations or (iii) other than where the use of proceeds is used to (x) redeem the Preferred Stock in full or (y) refinance the Company or its Subsidiary's Indebtedness existing as of the Subscription Date, create, or authorize the creation of, any additional class or series of capital shares of the Company (or any equity security convertible into or exercisable for anysuch class or series of capital shares of the Company) or issue or sell, or obligate itself to issue or sell, any equity securities of the Company ( or any equity security convertible into or exercisable for any such class or series of capital
20 493 4 - 3 510 - 8 02 5 \ 7 shares of the Company) that ranks on par or superior (except in the case of clause (y), in which case such securities may only rank par or junior) to the Preferred Stock as to dividends, distributions and payments upon the liquidation, dissolution or winding up of the Company or as to redemption or repurchase rights . (t) Stay, Extension and Usury Laws . To the exten t tha t i t may lawfully do so, the Company ( A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever clai m or take the benefi t or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenant s or the performance of this Certificat e of Designations ; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or imped e the execution of any power granted to the Holders by this Certificate of Designations, but will suffer and permi t the execution of every such power as though no such la w has been enacted . (g) Taxes . The Company and its Subsidiaries shall pay when due (taking into account all available extensions) all taxes, fees or other charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against the Company and its Subsidiaries or their respective assets or upon their ownership, possession, use, operation or disposition thereof or upon their rents, receipts or earnings arising therefrom (except where the failure to pay would not, individually or in the aggregate, have a material adverse effect on the Company or any of its Subsidiaries) . The Company and its Subsidiaries shall file on or before the due date therefor (taking into account all available extensions) all personal property tax returns ( except where the failure to file would not, individually or in the aggregate, have a material adverse effect on the Company or any of its Subsidiaries) . Notwithstanding the foregoing, the Company and its Subsidiaries may contest, in good faith and by appropriate proceedings , taxes for which they maintain adequate reserves therefor in accordance with U . S . GAAP . (h) Variable Rate Transaction . Neither the Company nor its Subsidiaries will be party to, enter into, effect or consummate any Variable Rate Transaction or enter into any agreement to effect or consummate any Variable Rate Transaction . "Variable Rate Transaction" means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock whereby the Company or any Subsidiary may sell securities at a future determined price (other than pursuant to a customary "weighted average" anti - dilution provision or standard and customary "preemptive" or "participation" rights) . Notwithstanding the foregoing , (i) shares of Common Stock issued and sold pursuant to the ATM Facility ; (ii) the issuance of Excluded Securities ; and (iii) the making of payments to customers, vendors or suppliers in the ordinary course of business consistent with past practice consisting of, or the consideration
21 493 4 - 3 510 - 8 02 5 \ 7 for which consists of, securities subject to a variable price shall not be deemed a Variable Rate Transaction for purposes of this Section 15(h). (i) Organizational Documents . The Company shall not amend, alter, modify, or repeal this Certificate of Designations, by the adoption or amendment of any Certificate of Designation or similar document, in each case, in any manner that materially adversely affects the rights of any of the Holders of the Preferred Stock . The Company shall not amend, alter, modify, or repeal its Certificate of Incorporation, bylaws or any other corporate governance document, in any manner that materially adversely affects the rights of any of the Holders of the Preferred Stock . (j) Agreement . The Company shall not enter into any agreement which would substantially impair its obligations under this Certificate of Designations or any other Transaction Document . (k) Independent Investigation . At the request of any Holder holding not less than $ 5 . 0 million in Stated Value of Preferred Stock either (x) at any time when a Triggering Event has occurred and is continuing, (y) upon the occurrence of an even t that with the passage of time or giving of notice would constitut e a Triggering Event or (z) at any time such Holder reasonably believe s a Triggering Event may have occurred or be continuing, the Company will permit an independent, reputable investment bank selected by the Company and approved by such Holder (such approva l not to be unreasonably withheld) to investigate, at the Company's expense (provided, however, that if such investigation is undertaken pursuant to the preceding clause (z) and, following such investigation, no Triggering Event is found to have occurred, such investigation shall be at the Holder's expense (and the Holder shall promptly reimburse the Company, if applicable)), as to whether any breach of the Certificate of Designations has occurred (the "Independent Investigator") ; provided that, absent the occurrence and continuanc e of a Triggering Event, no more than two ( 2 ) such investigations shall be permitted in any fiscal year . If the Independent Investigator determine s tha t such breach of the Certificate of Designation s has occurred, the Independen t Investigator shall notify the Company of such breach and the Company shall deliver written notice to each Holder of such breach . In connection with such investigation, the Independent Investigator may, upon reasonable notice and at such reasonable times during normal business hours, inspect all contracts, books, records, personnel, office s and other facilitie s and properties of the Company and its Subsidiarie s and, to the extent availabl e to the Company after the Company uses reasonable efforts to obtain them, the records of its legal advisors and accountants (including the accountants' work papers) and any book s of account, records, reports and other paper s not contractually required of the Company to be confidentia l or secret, or subject to attorney - clien t or other evidentiary privilege, and the Independent Investigator may make such copies and inspection s thereof as the Independent Investigator may reasonably request ; provided that, prior to being permitted to engage in any such visitation, inspection or access rights provided for under this Section l 5 (k), such Independent Investigator shall have executed a standard confidentiality agreement in favor of the Company oncustomary term s reasonably satisfactory to the Company . The Company shall furnish the Independent Investigator with such financia l and operating data and other information with respec t to the business and properties of the Company as the Independent
22 493 4 - 3 510 - 8 02 5 \ 7 Investigator may reasonably request . The Company shall permit the Independent Investigator to discuss the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect thereto to, the Company's officers, directors, key employees and independent public accountants or any of them (and by this provision the Company authorizes said accountants to discuss with such Independent Investigator the finances and affairs of the Company and any Subsidiaries), all at such reasonable times, upon reasonable notice, and as often as may be reasonably requested . Notwithstanding the foregoing, this Section 15 (k) shall not require the Company to breach any confidentiality obligations owed to third parties or to waive the Company's attorney - client privilege . (l) Equity Classification : Stockholders' Equity . The Company represents, warrant s and covenants to each Holder tha t (i) the Preferred Stock shall be classified and treated as equity, and not as a liability, in the Company's financial statement s in accordance with U . S . GAAP, except solely to the exten t of any Derivative Liability permitted by clause (ii), (ii) neither the issuanc e of the Preferred Stock nor the existence, term s or operation of the conversion rights hereunder shall resul t in a Derivativ e Liability in excess of $ 2 , 000 , 000 or in any Derivative Liability that would cause the Company's stockholders' equity to be less than the Stockholders' Equity Requirement as of any fiscal quarter end, and (iii) the Company shall have stockholders' equity of at least the Stockholders' Equity Requirement as of the last day of each fiscal quarter . (m) Affiliated Debt . The Company shall not make any payments of principal or other payments, except for regularly scheduled payments of interest at the non - default rate of interest, on the Endeavor Debt and/or any other Indebtedness then held by an Affiliate of the Company . 16 . Liquidation, Dissolution . Winding - Up . In the event of a Liquidation Event, the Holders shall be entitled to receive in cash out of the assets of the Company, whether from capital or from earnings available for distribution to its shareholders (the "Liquidation Funds"), before any amount shall be paid to the holders of any Junior Shares, but pari passu with any Parity Shares then issued, an amount per Preferred Share equal to the greater of (x) Stated Value and (y) the amount per share such Holder would receive if such Holder converted such Preferred Share into shares of Common Stock immediately prior to the date of such payment, provided that if the Liquidation Funds are insufficient to pay the full amount due to the Holders and holders of Parity Shares, if any, then each Holder and each holder of Parity Shares shall receive a percentage of the Liquidation Funds equal to the full amount of Liquidation Funds payable to such Holder and such holder of Parity Shares as a liquidation preference, in accordance with their respective certificate of designations (or equivalent), as a percentage of the full amount of Liquidation Funds payable to all holders of Preferred Stock and all holders of Parity Shares . To the extent necessary, the Company shall cause such actions to be taken by each of its Subsidiaries so as to enable, to the maximum extent permitted by law, the proceeds of a Liquidation Event to be distributed to the Holders in accordance with this Section 16 . All the preferential amounts to be paid to the Holders under this Section 16 shall be paid or set apart for payment before the payment or setting apart for payment of any amount for, or the distribution of any Liquidation Funds of the Company to the holders ofJunior Shares inconnection with a Liquidation Event as towhich this Section 16 applies .
23 4934 - 35 1 . 0 - 8025 \ 7 17. Distribution of Assets . In addition to any adjustments pursuant to Section 7 (a) and Section 8 , if the Company shall declare or make any dividend or other distributions of its assets (or rights to acquire its assets) to any or all holders of shares of Common Stock, by way ofretum of capital or otherwise (including without limitation, any distribution of cash, shares or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the "Distributions"), then each Holder, as holders of Preferred Stock, will be entitled to such Distributions as if such Holder had held the number of shares of Common Stock acquirable upon complete conversion of the Preferred Stock (without taking into account any limitations or restrictions on the convertibility of the Preferred Stock and assuming for such purpose that the Preferred Share was converted at the current Conversion Price as of the applicable record date) immediately prior to the date on which a record is taken forsuch 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 such Distributions (provided, however, that to the extent that such Holder's right to participate in any such Distribution would result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be entitled to participate in such Distribution to the extent of anysuch excess over the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to the extent of any such excess) and the portion of such Distribution shall be held in abeyance for the benefit of such Holder until such time or times as its right thereto would not result in such Holder and the other Attribution Parties exceeding theMaximum Percentage, at which time or times, ifany,such Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if there had been no such limitation) . 18. Vote to Change the Terms of or Issue Preferred Stock . For so long as any Preferred Stock are issued and outstanding, in addition to any other rights provided by law, except where the vote or written consent of the holders ofa greater number of shares is required by law or by another provision of the Certificate of Incorporation, without first obtaining the affirmative vote at a meeting duly called for such purpose or the written consent without a meeting of the Required Holders, voting together as a single class, the Company shall not : (a) amend, alter, modify or repeal any provision of, or add any provision to, its Certificate of Incorporation, or file any certificate of designations or certificate of amendment of any series of stock , including this Certificate of Designations, ifsuch actionwould materially adversely alter or change in any respect the preferences, rights, privileges or powers, orrestrictions provided for the benefit of the Preferred Stock hereunder, regardless of whether any such action shall be by means of amendment to the Certificate of Incorporation or by merger, consolidation or otherwise ; (b) increase or decrease (other than by conversion) the authorized number of Preferred Stock ; (c) without limiting any provision of Section 2 , create orauthorize (by reclassification or otherwise) any new class or series of Senior Preferred Stock or Parity Shares ; (d) purchase, repurchase or redeem any Junior Shares (other than pursuant to the terms of the Company's equity incentive plans and options and other equity awards granted under such plans (that have in good faith been approved by the Board)) ; (e) without limiting any provision of Section 2 , pay dividends or make any other distribution on any shares of any Junior Shares ; (f) issue any Preferred Stock other than as contemplated hereby or pursuant to the Securities Purchase Agreement ; (g) become subject to any agreement that would restrict the Company's ability to perform its obligations under this Certificate of Designations ; or
24 4934 - 35 10 - 8025 \ 7 (h) without limiting any provision of Section 9, whether or not prohibited by the terms of the Preferred Stock, circumvent a right of the Preferred Stock hereunder. 19. Transfer of Preferred Stock . A Holder may not transfer all or any portion of its Preferred Stock without the express prior written consent of the Company (through its Board), except for any transfer to an Affiliate of such Holder, to the Company, to YA II PN, LTD . , a Cayman Islands exempt limited company ("Yorkville") or any of its Affiliates, or to any other Person in connection with, or upon the exercise of, any rights or remedies of Yorkville under the Pledge and Security Agreement . Notwithstanding the foregoing, a Holder may pledge all or any portion of its Preferred Stock to Yorkville pursuant to the Pledge and Security Agreement without the prior written consent of the Company . Any transfer of Preferred Stock shall be in compliance with all applicable securities laws and Sections 4 . 1 and 5 . 7 of the Securities Purchase Agreement . Any purported transfer of Preferred Stock in violation of this Certificate of Designations shall be null and void, and no such transfer shall be recorded on the Company's books and the purported transferee in any such transfer shall not be treated (and the Holder proposing to make any such transfer shall continue to be treated) as the owner of such Preferred Stock for all purposes of this Certificate of Designations . Each Holder shall pay all costs and expenses incurred by the Company in connection with any transfer of Preferred Stock by such Holder . 20. Reissuance of Certificates. (a) Transfer . If any Preferred Stock represented by a stock certificate are to be transferred, the applicable Holder shall provide written notice of such transfer to the Company and surrender to the Company the stock certificate representing such Preferred Stock, together with a duly executed instrument of transfer, whereupon the Company shall forthwith issue and deliver, upon the order of such Holder, a new stock certificate registered in such name or names as such Holder may request, representing the number of Preferred Stock being transferred by such Holder and, ifless than all of the Preferred Stock represented by the surrendered stock certificate are being transferred, a new stock certificate (in accordance with Section 20 (c)) to such Holder representing the number of Preferred Stock not being transferred . (b) Certificated Exchangeable for Different Denominations . Each stock certificate may be exchanged by the applicable Holder , upon surrender of such stock certificate to the Company together with written notice to the Company , for two or more new stock certificates (in accordance with Section 20 (c)) representing, in the aggregate, the number of Preferred Stock represented by the original stock certificate, and each such new stock certificate shall represent such portion of such number of Preferred Stock represented by the original stock certificate as is designated in writing by such Holder at the time of such surrender . (c) Issuance of New Certificates . Whenever the Company is required to issue a new stock certificate pursuant to the terms of this Certificate of Designations, such new stock certificate (i) shall represent, as indicated on the face of such stock certificate, the number of Preferred Stock then represented thereby, which, when added to the number of Preferred Stock represented by the other new stock certificate or stock certificates issued in connection with such issuance , does not exceed the number of Preferred Stock
25 4934 - 35 10 - 8025 \ 7 represented by the original stock certificate immediately prior to such issuance, and (ii) shall have an issuance date, as indicated on the face of such new stock certificate, which is the same as the issuance date of such original stock certificate . 21. Remedies . Characterizations . Other Obligations . Breaches and Injunctive Relief . The remedie s provided in this Certificat e of Designations shall be cumulative and in addition to all other remedie s availabl e under this Certificate of Designation s and any of the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit any Holder's right to pursue actua l and consequential damages for any failur e by the Company to comply with the term s of this Certificat e of Designations . No failur e on the part of a Holder to exercise, and no delay in exercising, any right, power or remedy hereunder shall operat e as a waiver thereof ; nor shall any single or partial exercise by such Holder of any right, power or remedy preclude any other or further exercis e thereof or the exercis e of any other right, power or remedy . In addition, the exercise of any right or remedy of a Holder a t law or equity or under this Certificate of Designation s or any of the documents shall not be deemed to be an election of such Holder's rights or remedie s under such documents or at law or equity . The Company covenant s to each Holder tha t there shall be no characterization concerning this instrument other than as expressly provided herein . Amounts set forth or provided for herein with respec t to payments, conversion and the like (and the computation thereof) shall be the amount s to be received by a Holder and shall not, excep t as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof) . The Company acknowledges that a breach by it of its obligations hereunder will cause irreparabl e harm to the Holder s and tha t the remedy at law for anysuch breach may be inadequate . The Company therefore agrees that, in the even t of anysuch breach or threatened breach, each Holder shall be entitled, in addition to allother availabl e remedies, to specifi c performance and/or temporary, preliminary and permanent injunctiv e or other equitable relief from any court of competent jurisdiction in anysuch cas e withou t the necessity of proving actual damages and without posting a bond or other security . The Company shall provid e all information and documentation to a Holder that is reasonably requested in writing by such Holder to enabl e such Holder to confirm the Company's compliance with the term s and condition s of this Certificate of Designations ; provided that, to the exten t the Company indicates to such Holder that the requested information or documentation may contain material non - publi c information, such information or documentation will not be provided to such Holder withou t such Holder's express prior written consent . 22. Payment of Collection, Enforcement and Other Costs . If (a) any Preferred Stock are placed in the hands of an attorney for collection or enforcement or are collected or enforced through any legal proceeding or a Holder otherwise takes action to collect amounts due under this Certificate of Designations with respect to the Preferred Stock or to enforce the provisions of this Certificate of Designations or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings affecting Company creditors' rights and involving a claim under this Certificate of Designations, then the Company shall pay the costs reasonably incurred bysuch Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without limitation, attorneys' fees and disbursements . The Company expressly acknowledges and agrees that no amounts due under this Certificate of Designations with respect to any Preferred Stock shall be affected, or limited, by the fact that the purchase price paid for each Preferred Share was less than the original Stated Value thereof .
26 4934 - 35 10 - 8025 \ 7 23. Construction ; Headings . This Certificate of Designations shall be deemed to be jointly drafted by the Company and the Holders and shall not beconstrued against anysuch Person as the drafter hereof . The headings of this Certificate of Designations are for convenience of reference and shall not form part of, or affect the interpretation of, this Certificate of Designations . Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof . The terms "including," "includes," "include" and words of like import shall be construed broadly as if followed by the words "without limitation . " The tenns "herein,""hereunder," "hereof' and words oflike import refer to this entire Certificate of Designations instead of just the provision in which they are found . Unless expressly indicated otherwise, all section references are to sections of this Certificate of Designations . Terms used in this Certificate of Designations and not otherwise defined herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Initial Issuance Date in such other Transaction Documents unless otherwise consented to in writing by the Required Holders . 24. Failure or Indulgence Not Waiver . No failure or delay on the part of a Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege . No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party . Notwithstanding the foregoing, nothing contained in this Section 24 shall permit any waiver of any provision of Section 4 (d) . 25. Dispute Resolution. (a) Submission to Dispute Resolution for Certain Matters . (x) In the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, a VWAP or a fair market value or the arithmetic calculation of a Conversion Rate (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the applicable Holder (as the case may be) shall submit the dispute to the other party via electronic mail (A) if by the Company, within two ( 2 ) Business Days after the occurrence of the circumstances giving rise to such dispute or (B) ifbysuch Holder at any time after such Holder learned of the circumstances giving rise to such dispute . If such Holder and the Company are unable to promptly resolve such dispute relating to such Closing Bid Price, such Closing Sale Price, such Conversion Price, such VWAP or such fair market value, or the arithmetic calculation of such Conversion Rate, at any time after the tenth ( 10 th) Business Day following such initial notice by the Company or such Holder (as the case may be) of such dispute to the Company or such Holder (as the case may be), then such Holder and the Company may select an independent, reputable investment bank mutually agreeable in good faith to them to resolve such dispute . (xi) Such Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance with the first sentence of this Section 25 and (B) written documentation supporting its position with respect to such dispute, in each case, no later than 5 : 00 p . m . (New
27 4934 - 35 I 0 - 8025 \ 7 York time) by the fifth ( 5 th) Business Dayimmediately following the date onwhich such investment bank was selected (the "Dispute Submission Deadline") (the documents referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the "Required Dispute Documentation") (it being understood and agreed that if either such Holder or the Company fails to so deliver all of the Required Dispute Documentation by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (andhereby waives its right to) deliver or submit any written documentation or other support tosuch investment bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline) . Unless otherwise agreed to in writing by both the Company and such Holder or otherwise requested by such investment bank, neither the Company nor such Holder shall be entitled to deliver or submit any written documentation or other suppo 1 t to such investment bank in connection with such dispute (other than the Required Dispute Documentation) . (xii) The Company and such Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and such Holder of such resolution no later than ten ( 10 ) Business Days immediately following the Dispute Submission Deadline . The fees and expenses of such investment bank shall be borne solely by the Company, and such investment bank's resolution of such dispute shall be final and binding upon all parties absent manifest error . (b) Miscellaneous . The Company expressly acknowledges and agrees that (i) this Section 25 constitutes an agreement to arbitrate between the Company and each Holder (and constitutes an arbitration agreement) under † 7501 , et seq . of the New York Civil Practice Law and Rules ("CPLR") and that any Holder is authorized to apply for an order to compel arbitration pursuant to CPLR † 7503 (a) in order to compel compliance with this Section 25 , (ii) a dispute relating to a Conversion Price includes, without limitation, disputes as to (A) the consideration per share at which an issuance or deemed issuance of shares of Common Stock occurred, (B) whether any issuance or sale or deemed issuance or sale of shares of Common Stock was an issuance or sale or deemed issuance or sale of Excluded Securities, and (C) whether an agreement, instrument, security or the like constitutes an Option or Convertible Security, (iii) the terms of this Certificate of Designations and each other applicable Transaction Document shall serve as the basis for the selected investment bank's resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized) to make all findings, determinations and the like that such investment bank determines are required to be made by such investment bank in connection with its resolution of such dispute and in resolving such dispute such investment bank shall apply such findings, determinations and the like to the terms of this Certificate of Designations and any other applicable Transaction Documents, (iv) either the Company or the applicable Holder (and only such Holder with respect to disputes solely relating to such Holder), in its sole discretion, shall have the right to submit any dispute described in this Section 25 to any state or federal court sitting in The City of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this Section
28 4934 - 3510 - 8025 \ 7 25 and (v) nothing in this Section 25 shall limit such Holder from obtaining any injunctive relief or other equitable remedies (including, without limitation, with respect to any matters described in this Section 25 ) . 26. Notices : Currency ; Payments . (a) Notices . The Company shall provide each Holder ofPreferred Stock with prompt written notice of all material actions taken pursuant to the terms of this Certificate of Designations, including in reasonable detail a description of such action and the reason therefor ; provided that the Company shall not be required to provide any such notice in connection with (x) a Conversion Notice except as set forth in Section 4 or (y) transfers of any stock certificate . Without limiting the generality of the foregoing and unless disclosed by the Company in a press release or in a filing on Form 8 - K, the Company shall give written notice to each Holder (i) immediately upon anyadjustment of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen ( 15 ) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grant, issuances, or sales of any Options, Convertible Securities or rights to purchase shares, warrants, securities or other property to holders of all or substantially all shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or simultaneously with such notice being provided to such Holder by issuance of press release or the filing of Form 8 - K with the SEC . Whenever notice is required to be given under this Certificate of Designations, unless otherwise provided herein, such notice must be in writing and shall be given in accordance with Section 5 . 4 of the Securities Purchase Agreement . (b) Currency . All dollar amounts referred to in this Certificate of Designations are in United States Dollars ("U . S . Dollars"), and all dollar amounts owing under this Certificate ofDesignations shall be paid in U . S . Dollars . All amounts denominated in other currencies (if any) shall be converted into the U . S . Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation . "Exchange Rate" means, in relation to any amount of currency to be converted into U . S . Dollars pursuant to this Certificate of Designations, the U . S . Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period of time) . (c) Payments . Whenever any payment of cash is to be made by the Company to any Person pursuant to this Certificate of Designations , unless otherwise expressly set forth herein, such payment shall be made in lawful money of the United States of America by wire transfer of immediately available funds pursuant to wire transfer instructions that Holder shall provide to the Company in writing from time to time . Whenever any amount expressed to be due by the terms of this Certificate of Designations is due on any daywhich is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day . Any amount due under the Transaction Documents in cash which is not paid when due (except to the extent such amount is simultaneously accruing Dividends) shall
29 4934•3510 - 8025 \ 7 result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount at the rate of ten percent ( 10 % ) per annum from the date such amount was due until the same is paid in full ("Late Charge") . 27. Waiver ofNotice . To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Certificate of Designations and the Securities Purchase Agreement . 28. Governing Law . This Certificate of Designations shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Certificate of Designations shall be governed by, the DGCL, without giving effect to any choice oflaw or conflict oflaw provision or rule (whether of the DGCL or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware . Except as otherwise required by Section 25 above, the Company and each Holder (by acceptance of its Preferred Stock) hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, New York, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper . Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law . Nothing contained herein (i) shall be deemed or operate to preclude any Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company's obligations to such Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of such Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision of Section 25 above . THE COMPANY AND EACH HOLDER (BY ACCEPTANCE OF ITS PREFERRED STOCK) HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS CERTIFICATE OF DESIGNATIONS OR ANY TRANSACTION CONTEMPLATED HERKBY . 29. Judgment Currency. (a) If for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this Section 29 referred to as the "Judgment Currency") an amount due in U . S . dollars under this Certificate of Designations, the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding : (x) the date of actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction that will give effect to such conversion being made on such date : or
30 4934 .3 510 - 8025 \ 7 (xi) the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Section 29 (a)(ii) being hereinafter referred to as the "Judgment Conversion Date") . (b) If in the case of any proceeding in the court of any jurisdiction referred to in Section 29 (a)(ii) above, there is a change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date . (c) Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Certificate of Designations . 30 . Severability . If any provision of this Certificate of Designations is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Certificate of Designations so long as this Certificate of Designations as somodified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties . The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to tha t of the prohibited, invalid or unenforceable provision(s) . 3 l . Maximum Payments . Without limiting Section 5 . 2 of the Securitie s Purchase Agreement, nothing contained herein shall be deemed to establish or require the paymen t of a rate of interest or other charges in excess of the maximu m pennitted by applicabl e law . In the event tha t the rate of interes t required to be paid or other charge s hereunder exceed the maximum permitted by such law, any payment s in excess of such maximum shall be credited agains t amounts owed by the Company to the applicable Holder and thus refunded to the Company . 32 . Amendment . Excep t for Section 4 (d), which may not be amended or waived hereunder, this Certificate of Designations or any provision hereof may be amended by obtaining the affirmativ e vot e at a meeting duly called for such purpose, or written consent withou t a meeting in accordance with the DGCL, of the Required Holders, voting separately as a singl e class, and with such other shareholder approval, if any, as may then be required pursuan t to the DGCL and the Certificat e oflncorporation .
31 4934 - 35 10 - 8025 \ 7 33. Certain Defined Terms. For purposes of this Certificate of Designations, the following terms shall have the following meanings: " 1933 Act" means the Securities Act of 1933 , as amended, and the rules and regulations thereunder . " 1934 Act" means the Securities Exchange Act of 1934 , as amended, and the rules and regulations thereunder . "Additional Amount" means, as of the applicable date of determination, with respect to each Preferred Share, all unpaid Dividends that have accrued on such Preferred Share and any other unpaid amounts then due and payable hereunder with respect to such Preferred Share . "Additional Issuance Date" means, for any date after the Initial Issuance Date where Preferred Stock are issued pursuant to the Securities Purchase Agreement, the issuance date for such Preferred Stock . "Affiliate" or "Affiliated" means, with respect to anyspecified Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such specified Person, with "control" having the meaning ascribed to such term in Rule 405 under the Securities Act of 1933 , as amended . "Affiliated Party" means, with respect to any natural person, (i) any company, partnership, trust or other entity for which such natural person (or such natural person's estate) has dispositive or voting power with respect to the equity securities of the Company held by such company, partnership, trust or other entity ; (ii) any trust the beneficiaries of which consist solely of such natural person, any Family Member of such natural person or any person described in clause (i) ; (iii) the trustees, legal representatives, beneficiaries or beneficial owners (in each case, solely in such capacity and not in their individual or other capacities) of any such company, partnership, trust or other entity referred to in clause (i) or (ii) ; (iv) the estate of such natural person (it being understood, for the avoidance of doubt, that this clause (iv) will not include any person to whom any securities are transferred from anysuch estate) ; and (v) the Family Members of such natural person . "Approved Share Plan" means any employee benefit plan which has been approved by the Board prior to or subsequent to the Subscription Date pursuant to which shares of Common Stock and options to purchase shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer, consultant, director or other service provider of the Company or any of its Subsidiaries for services provided to the Company or any of its Subsidiaries in their capacity as such . "ATM Facility" means the Company's "at the market" facility with H . C . Wainwright & Co . , LLC for the issuances of Common Stock at prevailing market prices from time to time . "Attribution Parties" means, collectively, the following Persons and entities : (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Initial Issuance Date, directly or indirectly managed or advised
32 4934 - 35 10 - 8025 \ 7 by a Holder's investmen t manager or any of its Affiliates or principals, (ii) any direc t or indirec t Affiliates of such Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with such Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company's Common Stock would or could be aggregated with such Holder's and the other Attribution Partie s for purposes of Section 13 (d) of the 1934 Act . For clarity, the purpose of the foregoing is to subject collectively such Holder and all other Attribution Partie s to the Maximum Percentage . "Bankruptcy Law" means Title 11 , United States Code, or any similar U . S . federal or state or non - U . S . law for the relief of debtors . "Bloomberg" means Bloomberg, L . P . "Book - Entry" means each entry on the Register evidencing one or more Preferred Stock that has been converted into shares of Common Stock . "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 . "Capital Lease Obligation" means, with respect to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under U . S . GAAP ; the amount of such obligations shall be the capitalized amount thereof determined in accordance with U . S . GAAP, and the final maturity of such obligations shall be the date of the last payment of such amounts due under such lease (or other arrangement) prior to the first date on which such lease (or other arrangement) may be terminated by the lessee without payment of a premium or a penalty ; and, for the purposes of this Certificate of Designations, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with U . S . GAAP . "Closing Bid Price" and "Closing Sale Price" mean, for any security as of any date, the last closing bid price and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may be), then the last bid price or last trade price, respectively, of such security prior to 4 : 00 : 00 p . m . , New York City time, as reported by Bloomberg, or, if the Principal Market isnot the principal securities exchange or trading market for such security, the last closing bid price or last trade price, respectively, of such security on the principal
33 4934 - 35 10 - 8025 \ 7 securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of such security in the over - the - counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bidprices, or the ask prices, respectively, of any market makers for such security as reported in the "pink sheets" by OTC Markets Group Inc . (formerly Pink Sheets LLC) . If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value as mutually determined by the Company and the Required Holders . If the Company and the Required Holders are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 25 . All such determinations shall be appropriately adjusted for any share splits, share dividends, share combinations, recapitalizations or other similar transactions during such period . "Common Stock" means (i) the Company's common stock, $ 0 . 001 par value per share, and (ii) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock . "Contingent Obligation" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto . "Convertible Securities" means any shares or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any Common Stock . "Current Subsidiary" means any Person in which the Company on the Subscription Date, directly or indirectly, (i) owns more than fifty percent (50%) of the outstanding voting power of the capital shares or equity or similar interests of such Person entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or shareholders' agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such Person; or (ii) controls the business , operations or administration of such Person, and all of the foregoing, collectively, "Current Subsidiaries". For purposes of this definition, "control" means t he power to direct the management and the policies of such Person, whether through the ownership of voting capital, by contract or otherwise. "Derivative Liability" means any derivative, embedded derivative or other liability required under U.S. GAAP to be recorded on the Company's balance sheet as a result of
34 4934 - 35 10 - 8025 \ 7 the issuance of the Preferred Stock or the existence, terms or operation of the conversion rights under this Certificate of Designations. "Dividend Rate" means five percent (5%) or eighteen percent (18%) per annum upon the occurrence and continuation of a Triggering Event. "Eligible Market" means The New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global Select Market, or, in each case, any successor thereto . "Equity Conditions" means, with respect to a given date or period of determination, on each day during the period beginning thirty ( 30 ) Trading Days prior tosuch applicable date of determination and ending on and including such applicable date of determination (the "Equity Conditions Measuring Period") (i) all shares of Common Stock issuable upon conversion of the Preferred Shares that would be required to be registered for resale under the RRA shall be eligible to be resold by the Holders without restriction or any legend under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion of the Preferred Shares) ; (ii) the Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Preferred Shares) is listed or designated for quotation (as applicable) on an Eligible Market and shall not have been suspended from trading on such Eligible Market nor shall delisting or suspension by such Eligible Market have been threatened (with a reasonable prospect of delisting occurring after giving effect to all applicable notice, appeal, compliance and hearing periods) or reasonably likely to occur or pending as evidenced by (A) a writing by such Eligible Market or (B) the Company falling below the minimum listing maintenance requirements of such Eligible Market ; (iii) the Company shall have delivered all shares of Common Stock issuable upon conversion of the Preferred Shares on a timely basis as set forth in Section 4 hereof and all other shares of capital stock required to be delivered by the Company on a timely basis as set forth in the other Transaction Documents ; (iv) on each day during the Equity Conditions Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall have occurred which has not been abandoned, terminated or consummated ; (v) none of the Holders shall be in possession of any material, non - public information provided to any of them by the Company, any of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents or the like ; and (vi) on each day during the Equity Conditions Measuring Period, the Company otherwise shall have been substantially in compliance with, and shall not have breached in any material respect any representation or warranty (other than representations or warranties subject to material adverse effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of any Transaction Document in any material respect, including, without limitation, the Company shall not have failed to timely make any payment pursuant to any Transaction Document, except, in the case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured as of or after the date that is ten ( 10 ) Trading Days prior to the applicable date of determination . "Excluded Securities" means (i) Common Stock or options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock
35 4934 - 3 510 - 8025 \ 7 issued or issuable to directors, consultants, officers, employees or other service providers of the Company or any of its Subsidiaries for services rendered to the Company or any of its Subsidiaries in their capacity as such pursuant to an Approved Share Plan, provided that the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that materially adversely affects any of the Holders ; (ii) Convertible Securities and/or shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than options to purchase shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued or issuable pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the Subscription Date, provided that the conversion, exercise or issuance price of anysuch Convertible Securities (other than options to purchase shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) is not lowered ( other than in accordance with the terms thereof in effect as of the Subscription Date), none of such Convertible Securities (other than options to purchase shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder (other than in accordance with the terms thereof in effect as of the Subscription Date) and none of the terms or conditions of any such Convertible Securities ( other than options to purchase shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that materially adversely affects any of the Holders ; (iii) the shares of Common Stock issuable upon conversion of the Preferred Stock or otherwise pursuant to the terms of this Certificate of Designations ; provided, that the terms of this Certificate of Designations are not amended, modified or changed on or after the Subscription Date (other than antidilution adjustments pursuant to the terms hereof in effect as of the Subscription Date) ; and (iv) securities issued as consideration for the acquisition of another entity by the Company by merger, purchase of substantially all of the assets or other reorganization or bona fide joint venture agreement, provided that such issuance is approved by the majority of the disinterested directors of the Company . "Family Member" means, with respect to any individual, any other individual having a relationship by blood (to the second degree of consanguinity), marriage (including former spouses), domestic partnership (including former domestic partners) or adoption to such individual . "Floor Price" means $ 1 . 80 (as adjusted for share splits, share dividends, share combinations, recapitalizations or other similar transactions occurring after the Subscription Date) . "Fundamental Transaction" means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Subject Entity, unless, for purposes of any Section hereunder other
36 4934 - 3 510 - 8025 \ 7 than Section l l(c), the holders of shares of Common Stock of the Company immediately prior to such consolidation or merger continue to hold at least 50 % of the aggregate ordinary voting power represented by the shares of Common Stock of the Company (or the surviving or acquiring entity), or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to one or more Subject Entities, other than solely to one or more of the Company's wholly owned Subsidiaries, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its shares of Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50 % of the issued shares of Common Stock, (y) 50 % of the issued shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not issued, or (z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13 d - 3 under the 1934 Act) of at least 50 % of the issued shares of Common Stock, or (iv) consummate a shares or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin - off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, in any transaction or series ofrelated transactions, acquire, either (x) at least 50 % of the issued shares of Common Stock, (y) at least 50 % of the issued shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such shares purchase agreement or other business combination were not issued, or (z) such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13 d - 3 under the 1934 Act) of at least 50 % of the issued shares of Common Stock, or (v) reorganize, recapitalize or reclassify its shares of Common Stock, unless the holders of the shares of Common Stock of the Company immediately prior to such reorganization, recapitalization or reclassification continue to hold at least 50 % of the aggregate ordinary voting power represented by the shares of Common Stock of the Company (or the surviving entity), (B) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate, other than the Company or its wholly owned Subsidiaries, or their respective employee benefit plans, to be or become the "beneficial owner" (as defined in Rule 13 d - 3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in issued Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin - off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever , of either (x) at least 50 % of the aggregate ordinary voting power represented by issued shares of Common Stock, (y) at least 50 % of the aggregate ordinary voting power represented by issued shares of Common Stock not held by all such Subject Entities as of the date of this Certificate of Designations calculated as if any shares of Common Stock held by all such Subject Entities were not issued, or (z) a percentage of the aggregate ordinary voting power represented by issued
37 4934 - 3 510 - 8025 \ 7 shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Company to surrender their shares of Common Stock without approval of the shareholders of the Company or (C) directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner intended to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction . "Group" means a "group" as that term is used in Section 13 (d) of the 1934 Act and as defined in Rule 13 d - 5 thereunder . "Holder Pro Rata Amount" means, with respect to any Holder, a fraction (i) the numerator of which is the number of Preferred Stock issued to such Holder pursuant to the Securities Purchase Agreement on the Initial Issuance Date and (ii) the denominator of which is the number of Preferred Stock issued to all Holders pursuant to the Securities Purchase Agreement on the Initial Issuance Date . "Indebtedness" of any Person means, without duplication (A) all obligations of such Person for borrowed money, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments to the extent such obligations would appear as a liability on a balance sheet of such Person prepared in accordance with U . S . GAAP, (C) all guarantees by such Person oflndebtedness of others, (D) all Capital Lease Obligations of suchPerson, (E) all obligations, contingent orotherwise, of such Person as an account party in respect of letters of credit, letters of guaranty, bank guarantees, bankers' acceptances and similar instruments and, (F) to the extent not otherwise included in this definition, net obligations of such Person under hedging obligations entered into by such Person in the ordinary course of business and entered into for bona fide hedging purposes (and not for speculative purposes) as determined in good faith by the Company (the amount of anysuch obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such person at the termination of such agreement or arrangement) ; provided that the term "Indebtedness" shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller, (iii) contingent indemnity and similar obligations incurred in the ordinary course of business, (iv) Indebtedness of any parent entity (for which none of the Company or any Subsidiary is liable) appearing on the balance sheet of the Company solely by reason of push down accounting under U . S . GAAP, (v) obligations in connection with government auctions, subsidies, benefits or similar programs or processes, and (vi) obligations under any license, permit or other approval (or guarantees in respect of such obligations) incurred prior to the Subscription Date or in the ordinary course of business . The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner), to the extent such Person is liable therefor as a result of such Person's ownership interest in or other
38 4934 - 3 510 - 8025 \ 7 relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor . For all purposes hereof, the Indebtedness of the Company and any of its Subsidiaries shall exclude (i) intercompany liabilities between and among them arising solely from their cash management, tax and accounting operations in the ordinary course of business and (ii) intercompany loans, advances or Indebtedness between and among them having a term not exceeding 364 days (inclusive of any rollover, conversion or extension terms) and made in the ordinary course of busine s s . "Initial Issuance Date" means the date Preferred Stock are first issued pursuant to the Securities Purchase Agreement . "Issuance Date" means the Initial Issuance Date or Additional Issuance Date, as applicable . "Liens" means, with respect to any asset, (a) any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or titleretention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset . "Liquidation Event" means, whether in a single transaction or series of transactions, the voluntary or involuntary liquidation, dissolution or winding up of the Company or such Subsidiaries the assets of which constitute all or substantially all of the assets of the business of the Company and its Subsidiaries, taken as a whole . "Non - assessable" means, with respect to the issuance of shares, that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls on shares of the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil) . "Options" means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities . "Parent Entity" of a Person means an entity that, directly or indirectly, controls the applicable Person and whose Common Stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction . "Permitted Indebtedness" means : (a) any Indebtedness arising in the ordinary course of business in connection with trade payables;
39 4934 - 3 510 - 8025 \ 7 (b) any Indebtedness arising in the ordinary course of business in connection with project financing or to finance Capital Lease Obligations in an aggregate amount outstanding not to exceed $ 500 , 000 ; (c) any Indebtedness under that certain Revolving Line of Credit Promissory Note payable to Endeavor Blockchain, LLC (for the avoidance of doubt, including any interest thereon) or any refinancing of such Indebtedness (the "Endeavor Debt") ; (d) any Indebtedness set forth in Schedule 3 . l(aa) to the Securities Purchase Agreement (for the avoidance of doubt, including any interest thereon) as in effect on the Initial Issuance Date ; (e) any intercompany Indebtedness of the Company or of any of its Subsidiaries owing to the Company or any of its Subsidiaries ; (f) any Indebtedness consented to by the Required Holders; and (g) any Indebtedness where the proceeds are to be used to pay the Company Optional Redemption Price upon the Company's exercise of its Company Optional Redemption right . "Permitted Liens" means any Lien securing Permitted Indebtedness, except to the extent such Permitted Indebtedness is specified as being unsecured . "Person" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof . "Principal Market" means, as of any date of determination, the Eligible Market on which the shares of Common Stock are then listed or quoted. "RRA" means the Registration Rights Agreement, dated June 30, 2026, between the Company and the Holders. "SEC" means the United States Securities and Exchange Commission or the successor thereto. "Securities Purchase Agreement" means that certain securities purchase agreement by and among the Company and the initial holders of Preferred Stock, dated as of the Subscription Date, as may be amended from time to time in accordance with the terms thereof . "Significant Subsidiary" means, as of any date of determination, any Subsidiary of the Company that constitutes, or any group of Subsidiaries of the Company that, in the aggregate, would constitute, a "significant subsidiary" (as defined in Rule 1 - 02 (w) of Regulation S - X under the 1934 Act) of the Company .
40 4934 - 3 510 - 8025 \ 7 "Stated Value" shall mean $ 1 , 000 per share, subject to adjustment for share splits, share dividends, recapitalizations, reorganizations, reclassifications, combinations, subdivisions or other similar events occurring after theIssuance Date with respect to the Preferred Stock . "Stockholders' Equity Requirement" means $ 5 , 000 , 000 of stockholders' equity of the Company, determined in accordance with U . S . GAAP, as of the last day of each fiscal quarter or such other stockholders' equity required for the Company to remain eligible for continued listing on the Nasdaq Capital Market . "Subscription Date" means June 30 , 2026 . "Subject Entity" means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group . "Subsidiaries" means, with respect to any Person, (A) any corporation, company, association or other business entity (other than a partnership or limited liability company) of which more than fifty percent ( 50 % ) of the total voting power of the common equity entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or stockholders' or shareholders' agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person ; and (B) any partnership or limited liability company where (i) more than fifty percent ( 50 % ) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, ofsuch partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form ofmembership, general, special or limited partnership or limited liability company interests or otherwise ; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company . "Successor Entity" means the Person formed by, resulting from or survtvmg any Fundamental Transaction or the Person with which such Fundamental Transaction shall have been entered into . "Trading Day" means, as applicable, (x) with respect to all price or trading volume determinations relating to the shares of Common Stock, any day on which the shares of Common Stock are traded on the Principal Market, or, if the Principal Market is not the principal trading market for the shares of Common Stock, then on the principal securities exchange or securities market on which the shares of Common Stock are then traded, provided that "Trading Day" shall not include any day on which the shares of Common Stock are scheduled to trade onsuch exchange or market for less than 4 . 5 hours or any day that the shares of Common Stock are suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4 : 00 : 00 p . m . , New York City time) unless such day is otherwise designated as a Trading Day in writing by the applicable Holder or (y) with respect to all determinations
41 4934 - 3 510 - 8025 \ 7 other than price determinations relating to the shares of Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities . "Transaction Documents" means the Securities Purchase Agreement, this Certificate of Designations and each of the other agreements and instruments entered into or delivered by the Company or any of the Holders in connection with the transactions contemplated by the Securities Purchase Agreement, all as may be amended from time to time in accordance with the terms thereof "U . S . GAAP" means United States generally accepted accounting principles, consistently applied . "VWAP" means, for anysecurity as of any date, the dollar volume - weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which suchsecurity is then traded), during the period beginning at 9 : 30 : 00 a . m . , New York City time, and ending at 4 : 00 : 00 p . m . , New York time, as reported by Bloomberg through its "VAP" function (set to 09 : 30 : 00 start time and 16 : 00 : 00 end time) or, if the foregoing does not apply, the dollar volume - weighted average price of such security in the over - the - counter market on the electronic bulletin board for such security during the period beginning at 9 : 30 : 00 a . m . , New York time, and ending at 4 : 00 : 00 p . m . , New York time, as reported by Bloomberg, or, if no dollar volume - weighted average price is reported for such security by Bloomberg for such hours, the average of the highest Closing Bid Price and the lowest closing ask price of any of the market makers for such security as reported in the "pink sheets" by OTC Markets Group Inc . (formerly Pink Sheets LLC) . If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VW AP of such security on such date shall be the fair market value as mutually determined by the Company and the Required Holders . If the Company and the Required Holders are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 25 . All such determinations shall be appropriately adjusted for any share dividend, share split, share combination, recapitalization or other similar transaction during such period . 34 . Disclosure . Upon receipt or delivery by the Company of any notice in accordance with the terms of this Certificate ofDesignations, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non - public information relating to the Company and its Subsidiaries, taken as a whole, the Company shall within two ( 2 ) Business Days of such receipt or prior to (or simultaneous with) such delivery, as applicable, publicly disclose such material, non - public information on a Current Report on Form 8 - K or otherwise . In the event that the Company believes that a notice contains material, non - public information relating to the Company or any of its Subsidiaries , the Company so shall indicate to such Holder explicitly in writing in such notice (or immediately upon receipt of notice from such Holder, as applicable), and in the absence of any such written indication in such notice (or notification from the Company immediately upon receipt of notice from such Holder), such Holder shall be allowed to presume that information contained in the notice does not constitute material, non - public information relating to the Company or any of its Subsidiaries . If the Company or any of its Subsidiaries provides material non - public information to a Holder that is not simultaneously filed
42 4934 , 3 510 - 8025 \ 7 in a Current Report on Form 8 - K and such Holder has not agreed to receive such material non - public information, the Company hereby covenants and agrees that such Holder shall not have any duty of confidentiality to the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents with respect to, or a duty to any of the foregoing not to trade on the basis of, such material non - public information . Nothing contained in this Section 34 shall limit any obligations of the Company, or any rights of any Holder, under Section 4 . 4 of the Securities Purchase Agreement . 35 . Absence of Trading and Disclosure Restrictions . The Company acknowledges and agrees that no Holder is a fiduciary or agen t of the Company and that, subject to such Holder's compliance with the provisions of Section 4 . 6 of the Securities Purchase Agreement, each Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain from trading any securitie s while in possession of such information, in each case, in the absenc e of a written non - disclosure agreement signed by an officer of such Holder tha t explicitly provide s for such confidentiality and trading restrictions . In the absence of such an executed, written non - disclosure agreement, the Company acknowledges that, subject to such Holder's complianc e with the provision s of Section 4 . 6 of the Securities Purchase Agreement, each Holder may freely trade in any securitie s issued by the Company, may possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information to any third party . * * *
IN WITNESS WHEREOF, the Company has caused this Certificate ofDesignations of Series D Convertible Preferred Stock of Big Digital Energy, Inc. to be executed this 30th day of June, 2026. Name:Kaliste Saloom Title: Authorized Officer Signature Page to Certificate of Designations of the Series D Convertible Preferred Stock of Big Digital Energy, Inc.
EXHIBIT I BIG DIGITAL ENERGY, INC. CONVERSION NOTICE Reference is made to the Certificate of Designations of Series D Convertible Preferred Stock of Big Digital Energy, Inc . (the "Certificate of Designations") . ln accordance with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the number of shares of Series D Convertible Preferred Stock, $ 0 . 001 par value per share (the "Preferred Stock''), of Big Digital Energy, Inc . , a Delaware corporation (the "Company"), indicated below into shares of Common Stock, $ 0 . 001 value per share (the "Common Stock"), of the Company, as of the date specified below . Date of Conversion: Aggregate number of Preferred Stock to be converted Aggregate Stated Value of such Preferred Stock to be converted: Aggregate accrued and unpaid Dividends with respect to such Preferred Stock, and such Aggregate Dividends to be converted: AGGREGATE CONVERSION AMOUNT TOBE CONVERTED: Please confirm the following information: Conversion Price: Number of shares of Common Stock to be issued: Please issue the Common Stock into which the applicable Preferred Stock are being converted to Holder, or for its benefit, as follows: [] Check here if requesting delivery in book - entry form to the following name and to the following address: Issue to: I - 1 4 9 08 - 8 9 14 - 4 2 4 8 v.14 4 9 34 - 35 10 - 802 5 \ 7 [ ] Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows: DTC Participant: DTCNumber: Account Number:
Date: 4934 - 3510 - 80 2 5 \ 7 Name of Registered Holder By: _ Name: Title: Tax ID: Facsimile: E - mail Address: - --- - 4908 - 8914 - 4248 v.14 I - 2
4934 - 3510 - 80 2 5 \ 7 EXHIBIT II EMAIL ACKNOWLEDGMENT The Company acknowledges receipt of this Conversion Notice and hereby directs [ • ](the "Transfer Agent") to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent instruction letter dated , 2026 , from the Company and acknowledged and agreed to by the Transfer Agent .