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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): December 23, 2024
Qualigen
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-37428 |
|
26-3474527 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
5857
Owens Avenue, Suite 300, Carlsbad, California 92008
(Address
of principal executive offices) (Zip Code)
(760)
452-8111
(Registrant’s
telephone number, including area code)
n/a
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol |
|
Name
of each exchange on which registered |
| Common Stock, par value
$.001 per share |
|
QLGN |
|
The Nasdaq Capital Market
of The Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act (§230.405 of this
chapter) or Rule 12b-2 of the Exchange Act (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act ☐
Item
3.03. Material Modification to Rights of Security Holders.
As
previously disclosed, on November 18, 2024, the Qualigen Therapeutics, Inc., a Delaware corporation (the “Company”),
filed the Certificate of Designations of Preferences, Rights, and Limitations for the Series A-2 Preferred Stock with the Secretary of
State of the State of Delaware (the “Original Certificate of Designation”).
On
December 23, 2024, the Company filed an Amended and Restated Certificate of Designation of Preferences, Rights, and Limitations
of the Series A-2 Preferred Stock (the “Amended and Restated Certificate of Designation”) with the Secretary of State
of Delaware, following approval by the Board of Directors and by the holders of at least 67% of the outstanding shares of Series A-2
Preferred Stock. The Amended and Restated Certificate of Designation amends certain provisions of the Series A-2 Preferred Stock, specifically
to prohibit any adjustment to the Conversion Price unless approved by a majority of the shareholders entitled to vote in accordance with
Nasdaq Rule 5635(d).
The
foregoing summary is not intended to be exhaustive and is qualified in its entirety by reference to the Amended and Restated Certificate
of Designation, copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
Item
9.01 Financial Statement and Exhibits
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
| |
QUALIGEN THERAPEUTICS,
INC. |
| |
|
|
| Date:
December 26, 2024 |
By: |
/s/
Kevin Richardson II |
| |
|
Kevin Richardson II,
Interim Chief Executive Officer |
Exhibit
3.2
QUALIGEN
THERAPEUTICS, INC.
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATION OF PREFERENCES,
RIGHTS
AND LIMITATIONS
OF
SERIES
A-2 PREFERRED STOCK
PURSUANT
TO SECTION 151 OF THE
Delaware
GENERAL CORPORATION LAW
The
undersigned, Campbell Becher and Kevin Richardson II, do hereby certify that:
1.
They are the President and Secretary, respectively, of Qualigen Therapeutics, Inc., a Delaware corporation (the “Corporation”).
2.
The Corporation is authorized to issue 15,000,000 shares of Preferred Stock, and no Preferred Stock is currently outstanding.
3.
The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS,
the certificate of incorporation of the Corporation provides for a class of its authorized stock known as Preferred Stock, consisting
of 15,000,000 shares, $0.001 par value per share, issuable from time to time in one or more series;
WHEREAS,
the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of
redemption and liquidation preferences of any wholly unissued series of Preferred Stock and the number of shares constituting any series
and the designation thereof, of any of them; and
WHEREAS,
the Board of Directors previously adopted a resolution authorizing the creation and issuance of a series of said Preferred Stock designated
as the “Series A-2 Preferred Stock” (the “Series A-2 Preferred Stock”) and the Certificate of Designations
for the Series A-2 Preferred Stock was filed with the Secretary of State of the State of Delaware on November 18, 2024;
WHEREAS,
on December 17, 2024, the Board of Directors approved and adopted the Amended and Restated Certificate of Designations for purposes of
amending certain provisions of the Series A-2 Preferred Stock; and
WHEREAS,
it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and
other matters relating to a series of the Preferred Stock, which shall consist of 10,000 shares of the Preferred Stock which the Corporation
has the authority to issue, as follows:
NOW,
THEREFORE, BE IT RESOLVED, that, pursuant to the authority expressly vested in the Board of Directors and in accordance with the provisions
of the Certificate of Incorporation and the DGCL, the Certificate of Designations for the Series A Preferred Stock shall, subject to
approval of the requisite Series A-2 holders, be amended and the designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of such series and the qualifications, limitations or restrictions
thereof are as follows:
TERMS
OF SERIES A-2 PREFERRED STOCK
Section
1. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
“Alternate
Consideration” shall have the meaning set forth in Section 7(e).
“Bankruptcy
Event” means any of the following events: (a) the Corporation or any Significant Subsidiary (as such term is defined in Rule
1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Corporation or
any Significant Subsidiary thereof, (b) there is commenced against the Corporation or any Significant Subsidiary thereof any such case
or proceeding that is not dismissed within 60 days after commencement, (c) the Corporation or any Significant Subsidiary thereof is adjudicated
insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Corporation or
any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property
that is not discharged or stayed within 60 calendar days after such appointment, (e) the Corporation or any Significant Subsidiary thereof
makes a general assignment for the benefit of creditors, (f) the Corporation or any Significant Subsidiary thereof calls a meeting of
its creditors with a view to arranging a composition, adjustment or restructuring of its debts, or (g) the Corporation or any Significant
Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing
or takes any corporate or other action for the purpose of effecting any of the foregoing.
“Base
Conversion Price” shall have the meaning set forth in Section 7(b).
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 6(d).
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Buy-In”
shall have the meaning set forth in Section 6(c)(iv).
“Change
of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof by an
individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective
control (whether through legal or beneficial ownership of capital stock of the Corporation, by contract or otherwise) of in excess of
39% of the voting securities of the Corporation (other than by means of conversion or exercise of Series A-2 Preferred Stock and the
Securities issued together with the Series A-2 Preferred Stock), (b) the Corporation merges into or consolidates with any other Person,
or any Person merges into or consolidates with the Corporation and, after giving effect to such transaction, the stockholders of the
Corporation immediately prior to such transaction own less than 61% of the aggregate voting power of the Corporation or the successor
entity of such transaction (c) the Corporation sells or transfers all or substantially all of its (and all of its Subsidiaries, taken
as a whole) assets to another Person and the stockholders of the Corporation immediately prior to such transaction own less than 61%
of the aggregate voting power of the acquiring entity immediately after the transaction, (d) a replacement at one time or within a one
year period of more than one-half of the members of the Board of Directors which is not approved by a majority of those individuals who
are members of the Board of Directors on the Original Issue Date (or by those individuals who are serving as members of the Board of
Directors on any date whose nomination to the Board of Directors was approved by a majority of the members of the Board of Directors
who are members on the Original Issue Date), or (e) the execution by the Corporation of an agreement to which the Corporation is a party
or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the Corporation’s common stock, par value $0.001 per share, and stock of any other class of securities into
which such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Corporation or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion
Amount” means the sum of the Stated Value at issue.
“Conversion
Date” shall have the meaning set forth in Section 6(a).
“Conversion
Price” shall have the meaning set forth in Section 6(b).
“Conversion
Shares” means, collectively, the shares of Common Stock issued and issuable upon conversion of the shares of Series A-2 Preferred
Stock in accordance with the terms hereof.
“Dilutive
Issuance” shall have the meaning set forth in Section 7(b).
“Dilutive
Issuance Notice” shall have the meaning set forth in Section 7(b).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Corporation
pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Corporation
or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities issued pursuant to,
or upon the exercise or exchange of or conversion of any securities issued or assumed pursuant to, and/or other securities exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of the Purchase Agreement, provided
that such securities have not been amended since the date of the Purchase Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of any such securities or to extend the term of such securities (it being expressly
understood that decreases in the exercise price of warrants (which were outstanding on the date of the Purchase Agreement) pursuant to
the operation of ratchet or other antidilution provisions thereof which provisions have not been amended after the date of the Purchase
Agreement do not constitute an “amendment since the date of the Purchase Agreement”), (c) securities issued pursuant to acquisitions
or strategic transactions approved by a majority of the disinterested directors of the Corporation, and provided that any such issuance
shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or
an owner of an asset in a business synergistic with the business of the Corporation and shall provide to the Corporation additional benefits
in addition to the investment of funds, but shall not include a transaction in which the Corporation is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is investing in securities.
“Fundamental
Transaction” shall have the meaning set forth in Section 7(e).
“GAAP”
means United States generally accepted accounting principles.
“Holder”
shall have the meaning given such term in Section 2.
“Junior
Securities” means the Common Stock and all other Common Stock Equivalents of the Corporation other than those securities which
are explicitly senior or pari passu to the Series A-2 Preferred Stock in dividend rights or liquidation preference.
“Liens”
means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Liquidation”
shall have the meaning set forth in Section 5.
“New
York Courts” shall have the meaning set forth in Section 11(d).
“Notice
of Conversion” shall have the meaning set forth in Section 6(a).
“Original
Issue Date” means the date of the first issuance of any shares of the Series A-2 Preferred Stock regardless of the number of
transfers of any particular shares of Series A-2 Preferred Stock and regardless of the number of certificates which may be issued to
evidence such Series A-2 Preferred Stock.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase
Agreement” means the Securities Purchase Agreement, dated on November 18, 2024, among Qualigen Therapeutics, Inc. and certain
person(s) who would become the original Holders.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Securities”
means the Series A-2 Preferred Stock and the Conversion Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series
A-2 Preferred Stock” shall have the meaning set forth in Section 2.
“Share
Delivery Date” shall have the meaning set forth in Section 6(c).
“Stated
Value” shall have the meaning set forth in Section 2, as the same may be increased pursuant to Section 3.
“Subsidiary”
means any entity which is currently or hereafter a direct or indirect subsidiary of the Corporation, for so long as such subsidiary relationship
persists.
“Successor
Entity” shall have the meaning set forth in Section 7(e).
“Trading
Day” means a day on which the principal Trading Market is open for business.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Certificate of Designation, the Purchase Agreement (to the extent binding upon or benefiting the Corporation),
all exhibits and schedules thereto (to the extent binding upon or benefiting the Corporation).
“Transfer
Agent” means the current transfer agent of the Corporation, and any successor transfer agent of the Corporation.
“Variable
Rate Transaction” means a transaction in which the Corporation (i) issues or sells any debt or equity securities that are convertible
into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion
price, exercise price 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 debt or equity 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 debt or equity security 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 or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit,
whereby the Company may issue securities at a future determined price.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Corporation,
the fees and expenses of which shall be paid by the Corporation.
Section
2. Designation, Amount and Par Value. This series of Preferred Stock of the Corporation shall be designated as its Series
A-2 Preferred Stock (the “Series A-2 Preferred Stock”) and the number of shares so designated shall be 7,000 (which
shall not be subject to increase without the written consent of the holders of a majority of the then outstanding shares of the Series
A-2 Preferred Stock (each, a “Holder” and collectively, the “Holders”)). Each share of Series A-2
Preferred Stock shall have a par value of $0.001 per share and a stated value equal to $1,000, subject to increase set forth in Section
3 below (the “Stated Value”).
Section
3. Dividends.
a)
As If Common Stock. If the Corporation, at any time while any shares of Series A-2 Preferred Stock are outstanding, pays a dividend
or distribution (other than one payable in shares of Common Stock or in Common Stock Equivalents) on shares of Common Stock, Holders
as of the record date for such dividend or distribution on Common Stock shall be entitled to receive at the same time as such payment
on Common Stock, and the Corporation shall pay, a dividend or distribution on each share of Series A-2 Preferred Stock equal to the per-share
amount of the dividend or distribution on Common Stock multiplied by the number of shares of Common Stock into which such share of Series
A-2 Preferred Stock was (on such record date) convertible (without regard to any limitations on conversion, including without limitation
the Beneficial Ownership Limitation). Such dividend or distribution on Series A-2 Preferred Stock shall be paid in the same form as the
dividend or distribution on Common Stock. The Series A-2 Preferred Stock shall not otherwise have any rights to dividends. The fair market
value of any dividend or distribution to which a share of Series A-2 Preferred Stock has become entitled pursuant to this Section but
which has not yet been paid shall, until such dividend or distribution has been paid on such share of Series A-2 Preferred Stock, be
added to the Stated Value of such share of Series A-2 Preferred Stock.
b)
Other Securities. So long as any Series A-2 Preferred Stock shall remain outstanding, neither the Corporation nor any Subsidiary
thereof shall redeem, purchase or otherwise acquire directly or indirectly any Junior Securities nor shall any monies be set aside for
or applied to the purchase or redemption (through a sinking fund or otherwise) of any Junior Securities or shares pari passu with
the Series A-2 Preferred Stock, in each case except as expressly permitted by Section 8(b).
Section
4. Voting Rights. The Series A-2 Preferred Stock shall have the right to vote, together with the Common Stock as if all part
of a single class and single series, as to all matters on which the Common Stock is entitled to vote, and each then-outstanding share
of Series A-2 Preferred Stock shall as to each respective matter to be so voted upon be entitled to a number of votes equal to the number
of shares of Common Stock into which such share of Series A-2 Preferred Stock would be, as of the record date for determination of stockholders
entitled to vote as to such matter, convertible if the conversion price was equal to the “Minimum Price” (as of the Original
Issue Date) as defined in Nasdaq Listing Rule 5635(d) (without giving effect to any post-Original Issue Date amendments of such Rule),
taking into account for such purposes the Beneficial Ownership Limitation as then in effect. Provided, that such deemed “conversion
price” shall be adjusted to reflect proportionally any changes in the actual Conversion Price pursuant to Section 7(a) below; but
in the event of a Dilutive Issuance resulting in a “ratchet” change in the actual Conversion Price pursuant to Section 7(b)
below, there shall be no voting rights adjustment of such “deemed” conversion price as a result of such Dilutive Issuance
or as a result of such “ratchet” change in the actual Conversion Price pursuant to Section 7(b) below. Holders shall be entitled
to notice of all meetings of Corporation stockholders on the same basis as holders of Common Stock.
Section
5. Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”),
the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation an amount equal to the Stated
Value and any fees or liquidated damages then due and owing thereon under this Certificate of Designation, for each share of Series A-2
Preferred Stock before any distribution or payment shall be made to the holders of any Junior Securities, and if the assets of the Corporation
shall be insufficient to pay in full such amounts, then the entire assets to be distributed to the Holders shall be ratably distributed
among the Holders in accordance with the respective amounts that would be payable on such shares if all amounts payable thereon were
paid in full.
Section
6. Conversion.
a)
Conversions at Option of Holder. Each share of Series A-2 Preferred Stock shall be convertible, at any time and from time to time
from and after the Original Issue Date at the option of the Holder thereof, into that number of shares of Common Stock (subject to the
limitations set forth in Section 6(d)) determined by dividing the Stated Value of such share of Series A-2 Preferred Stock by the Conversion
Price. Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A
(a “Notice of Conversion”). Each Notice of Conversion shall specify the number of shares of Series A-2 Preferred
Stock to be converted, the number of shares of Series A-2 Preferred Stock owned prior to the conversion at issue, the number of shares
of Series A-2 Preferred Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which
date may not be prior to the date the applicable Holder delivers by email such Notice of Conversion to the Corporation (such date, the
“Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the
date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. The calculations
and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions
of shares of Series A-2 Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Series
A-2 Preferred Stock to the Corporation unless all of the shares of Series A-2 Preferred Stock represented thereby are so converted, in
which case such Holder shall deliver the certificate representing such shares of Series A-2 Preferred Stock promptly following the Conversion
Date at issue. Shares of Series A-2 Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall
be canceled and shall not be reissued.
b)
Conversion Price. The conversion price for the Series A-2 Preferred Stock shall equal $3.64 subject to adjustment herein
(the “Conversion Price”).
c)
Mechanics of Conversion.
i.
Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”),
the Corporation shall deliver, or cause to be delivered, to the converting Holder the number of Conversion Shares being acquired upon
the conversion of the Series A-2 Preferred Stock, which, on or after the six month anniversary of the Original Issue Date, shall be free
of restrictive legends and trading restrictions (other than those which may then be required by the Purchase Agreement or under applicable
law). On or after the six month anniversary of the Original Issue Date, the Corporation shall deliver the Conversion Shares required
to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established clearing
corporation performing similar functions. As used herein, “Standard Settlement Period” means the standard settlement
period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as
in effect on the date of delivery of the Notice of Conversion.
ii.
Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to
or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation
at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Corporation shall promptly
return to the Holder any original Series A-2 Preferred Stock certificate delivered to the Corporation and the Holder shall promptly return
to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of Conversion.
iii.
Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares
upon conversion of Series A-2 Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any
action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach
or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law
by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation
to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not
operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. In the event a Holder shall
elect to convert any or all of the Stated Value of its Series A-2 Preferred Stock, the Corporation may not refuse conversion based on
any claim that such Holder or any one associated or affiliated with such Holder has been engaged in any violation of law, agreement or
for any other reason, unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part
of the Series A-2 Preferred Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the
benefit of such Holder in the amount of 150% of the Stated Value of Series A-2 Preferred Stock which is subject to the injunction, which
bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall
be payable to such Holder to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion
Shares and, if applicable, cash, upon a properly noticed conversion. If the Corporation fails to deliver to a Holder such Conversion
Shares pursuant to Section 6(c)(i) by the Share Delivery Date applicable to such conversion, the Corporation shall pay to such Holder,
in cash, as liquidated damages and not as a penalty, for each $5,000 of Stated Value of Series A-2 Preferred Stock being converted, $50
per Trading Day (increasing to $100 per Trading Day on the third Trading Day and increasing to $200 per Trading Day on the sixth Trading
Day after such damages begin to accrue) for each Trading Day after the Share Delivery Date until such Conversion Shares are delivered
or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages or declare a Triggering
Event pursuant to Section 10 hereof for the Corporation’s failure to deliver Conversion Shares within the period specified herein
and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to
enforce damages pursuant to any other Section hereof or under applicable law.
iv.
Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available
to the Holder, if the Corporation fails for any reason to deliver to a Holder the applicable Conversion Shares by the Share Delivery
Date pursuant to Section 6(c)(i), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in
an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver
in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating
to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay in cash to such Holder (in addition to
any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s total purchase price
(including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares
of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which
the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of such
Holder, either reissue (if surrendered) the shares of Series A-2 Preferred Stock equal to the number of shares of Series A-2 Preferred
Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares
of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i).
For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to
an attempted conversion of shares of Series A-2 Preferred Stock with respect to which the actual sale price of the Conversion Shares
(including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately
preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice
indicating the amounts payable to such Holder in respect of the Buy-In and, upon request of the Corporation, evidence of the amount of
such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure
to timely deliver the Conversion Shares upon conversion of the shares of Series A-2 Preferred Stock as required pursuant to the terms
hereof.
v.
Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available
out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series A-2 Preferred
Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder
(and the other holders of the Series A-2 Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall
be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of
Series A-2 Preferred Stock hereunder. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon
issue, be duly authorized, validly issued, fully paid and nonassessable.
vi.
Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Series
A-2 Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the
Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the Conversion Price or round up to the next whole share. Notwithstanding anything to the contrary contained herein, but
consistent with the provisions of this subsection with respect to fractional Conversion Shares, nothing shall prevent any Holder from
converting fractional shares of Series A-2 Preferred Stock.
vii.
Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Series A-2 Preferred Stock shall be made
without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such
Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer
involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such
shares of Series A-2 Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until
the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established
to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all Transfer Agent fees required for same-day
processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing
similar functions) required for same-day electronic delivery of the Conversion Shares.
d)
Beneficial Ownership Limitation. The Corporation shall not effect any conversion of the Series A-2 Preferred Stock, and a Holder
shall not have the right to convert any portion of the Series A-2 Preferred Stock, to the extent that, after giving effect to the conversion
set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as
a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”))
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon conversion of the Series A-2 Preferred Stock with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Stated
Value of Series A-2 Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise
or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion
or exercise analogous to the limitation contained herein (including, without limitation, the Series A-2 Preferred Stock or the Warrants)
beneficially owned by such Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for
purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the determination
of whether the Series A-2 Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates
and Attribution Parties) and of how many shares of Series A-2 Preferred Stock are convertible shall be in the sole discretion of such
Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of
Series A-2 Preferred Stock may be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution
Parties) and how many shares of the Series A-2 Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation.
To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice
of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall
have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated
above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of
outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or
annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more
recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the
written or oral request of a Holder, the Corporation shall within one Trading Day confirm orally and in writing to such Holder the number
of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Corporation, including the Series A-2 Preferred Stock, by such Holder or its
Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock issuable upon conversion of Series A-2 Preferred Stock held by the applicable Holder. A Holder,
upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 6(d) applicable
to its Series A-2 Preferred Stock provided that the Beneficial Ownership Limitation in no event exceeds 4.99% (or 9.99% upon the election
of the Holder) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common
Stock upon conversion of this Series A-2 Preferred Stock held by the Holder and the provisions of this Section 6(d) shall continue to
apply. Any such increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice
is delivered to the Corporation and shall only apply to such Holder and no other Holder. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct this paragraph (or any
portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make
changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of Series A-2 Preferred Stock.
Section
7. Certain Adjustments.
a)
Stock Dividends and Stock Splits. If the Corporation, at any time while any shares of Series A-2 Preferred Stock are outstanding:
(i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock
or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation
upon conversion of, or payment of a dividend on, this Series A-2 Preferred Stock), (ii) subdivides outstanding shares of Common Stock
into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a
smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock
of the Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares
of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section
7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Equity Sales. If, at any time while any shares of Series A-2 Preferred Stock are outstanding, the Corporation or any
Subsidiary, as applicable sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or
issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or Common Stock Equivalents entitling
any Person to acquire shares of Common Stock at an effective price per share that is lower than the then Conversion Price (such lower
price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (if
the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments,
reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which
are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower
than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive
Issuance), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Conversion Price
shall be reduced to equal the higher of (i) the Base Conversion Price or (ii) $1.82 (the “Floor Price” –
such Floor Price to be subject to adjustment in accordance with, but only in accordance with, Section 7(a)). Notwithstanding the foregoing,
no adjustment to the Conversion Price shall be made under this Section 7(b) unless and until the Corporation has obtained shareholder
approval in accordance with Nasdaq Rule 5635(d). Further, no adjustment will be made under this Section 7(b) in respect of an Exempt
Issuance or in respect of any repricing (triggered or effected after the Original Issue Date) of any derivative securities which were
outstanding as of the Original Issue Date. (Standard stock-split-type adjustments under Section 7(a) are not “repricings”
for this purpose.) If the Corporation enters into a Variable Rate Transaction, despite the prohibition set forth in the Purchase Agreement,
the Corporation shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion price at which
such securities may be converted or exercised. The Corporation shall notify the Holders in writing, no later than the Trading Day following
the issuance of any Common Stock or Common Stock Equivalents subject to this Section 7(b), indicating therein the applicable issuance
price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance
Notice”). For purposes of clarification, whether or not the Corporation provides a Dilutive Issuance Notice pursuant to this
Section 7(b), upon the occurrence of any Dilutive Issuance, the Holders are entitled to receive a number of Conversion Shares based upon
the Base Conversion Price on or after the date of such Dilutive Issuance, regardless of whether a Holder accurately refers to the Base
Conversion Price in the Notice of Conversion.
c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, if at any time the Corporation grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Series A-2 Preferred Stock (without
regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before
the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date
as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d)
Pro Rata Distributions. During such time as any shares of Series A-2 Preferred Stock are outstanding, if the Corporation declares
or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by
way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Series A-2 Preferred Stock, then, in each such case, the
Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Series A-2 Preferred Stock (without
regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before
the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of
shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent
that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e)
Fundamental Transaction. If, at any time while any shares of Series A-2 Preferred Stock are outstanding, (i) the Corporation,
directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another
Person, (ii) the Corporation (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions,
(iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed
pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property
and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in
one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or
other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of
Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making
or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”),
then, upon any subsequent conversion of this Series A-2 Preferred Stock, the Holder shall have the right to receive, for each Conversion
Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without
regard to any limitation in Section 6(d) on the conversion of this Series A-2 Preferred Stock), the number of shares of Common Stock
of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of
shares of Common Stock for which this Series A-2 Preferred Stock is convertible immediately prior to such Fundamental Transaction (without
regard to any limitation in Section 6(d) on the conversion of this Series A-2 Preferred Stock). For purposes of any such conversion,
the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount
of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall
apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any conversion of this Series A-2 Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate
the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate
of Designation with the same terms and conditions and issue to the Holders new Series A-2 Preferred Stock consistent with the foregoing
provisions and evidencing the Holders’ right to convert such Series A-2 Preferred Stock into Alternate Consideration. The Corporation
shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents
in accordance with the provisions of this Section 7(e) pursuant to written agreements in form and substance reasonably satisfactory to
the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of
the holder of this Series A-2 Preferred Stock, deliver to the Holder in exchange for this Series A-2 Preferred Stock a security of the
Successor Entity evidenced by a written instrument substantially similar in form and substance to this Series A-2 Preferred Stock which
is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the
shares of Common Stock acquirable and receivable upon conversion of this Series A-2 Preferred Stock (without regard to any limitations
on the conversion of this Series A-2 Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies
the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock
pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such
conversion price being for the purpose of protecting the economic value of this Series A-2 Preferred Stock immediately prior to the consummation
of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any
such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Certificate of Designation referring to the “Corporation” shall refer instead
to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations of the Corporation
under this Certificate of Designation with the same effect as if such Successor Entity had been named as the Corporation herein.
f)
Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
g)
Notice to the Holders.
i.
Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation
shall promptly deliver to each Holder by email a notice setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form)
on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C)
the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer
of all or substantially all of the assets of the Corporation (and all of its Subsidiaries, taken as a whole), or any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause
to be filed at each office or agency maintained for the purpose of conversion of this Series A-2 Preferred Stock, and shall cause to
be delivered by email to each Holder at its last email address as it shall appear upon the stock books of the Corporation, at least twenty
(20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the
date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants
are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected
to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to
exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof
shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided
hereunder constitutes, or contains, material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to convert the Conversion Amount of this Series A-2 Preferred Stock (or any part hereof) during the 20-day period commencing on the date
of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
8. Negative Covenants. As long as any shares of Series A-2 Preferred Stock are outstanding, unless the holders of at least
67% in Stated Value of the then outstanding shares of Series A-2 Preferred Stock shall have otherwise given prior written consent, the
Corporation shall not, and shall not permit any of the Subsidiaries to, directly or indirectly:
a)
amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially
and adversely affects any rights of the Holder provided, however, that any amendment required to comply with any Listing
Rule of The Nasdaq Stock Market LLC or other applicable exchange rules shall not be deemed to materially and adversely affect the rights
of the Holder;
b)
repay, repurchase or offer to repay, repurchase or otherwise acquire more than a de minimis number of shares of its Common Stock,
Common Stock Equivalents or Junior Securities, other than as to (i) shares issued upon exercise of the Warrants, or the Conversion Shares,
in each case as permitted or required under the Transaction Documents, and (ii) repurchases of Common Stock or Common Stock Equivalents
of departing officers and directors of the Corporation, provided that such repurchases shall not exceed an aggregate of $100,000 for
all officers and directors for so long as the Series A-2 Preferred Stock is outstanding;
c)
pay cash dividends or distributions on Junior Securities of the Corporation;
d)
enter into any transaction with any Affiliate of the Corporation which would be required to be disclosed in any public filing with the
Commission, unless such transaction is made on an arm’s-length basis and expressly approved by a majority of the disinterested
directors of the Corporation (even if less than a quorum otherwise required for board approval); or
e)
enter into any agreement with respect to any of the foregoing.
Section
9. Miscellaneous.
a)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Conversion, shall be in writing and delivered personally, by e-mail attachment, or sent by a nationally recognized
overnight courier service, addressed to the Corporation, at Qualigen Therapeutics, Inc., 5857 Owens Avenue, Suite 300, Carlsbad, California
92008, Attention: Interim Chief executive Officer, e-mail address kevin@pridescapital.com, or such other e-mail address or address as
the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices
or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by e-mail
attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of
such Holder appearing on the books of the Corporation, or if no such e-mail address or address appears on the books of the Corporation,
at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered
via e-mail attachment at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next
Trading Day after the time of transmission, if such notice or communication is delivered via e-mail attachment at the e-mail address
set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the
second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given.
b)
Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair
the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages, accrued dividends and accrued interest,
as applicable, on the shares of Series A-2 Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
c)
Lost or Mutilated Series A-2 Preferred Stock Certificate. If a Holder’s Series A-2 Preferred Stock certificate shall be
mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation
of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares
of Series A-2 Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction
of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.
d)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation
shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the
principles of conflict of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions
contemplated by this Certificate of Designation (whether brought against a party hereto or its respective Affiliates, directors, officers,
shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan
(the “New York Courts”). The Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction
of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this Certificate of Designation), and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York
Courts, or such New York Courts are improper or inconvenient venue for such proceeding. The Corporation and each Holder hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by applicable law. The Corporation and each Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions
contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate
of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’
fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
e)
Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate
as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of
Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term
of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder)
of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other
occasion. Any waiver by the Corporation or a Holder must be in writing.
f)
Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate
of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain
applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder
violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the
maximum rate of interest permitted under applicable law.
g)
Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
h)
Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation
and shall not be deemed to limit or affect any of the provisions hereof.
i)
Status of Converted or Redeemed Series A-2 Preferred Stock. If any shares of Series A-2 Preferred Stock shall be converted, redeemed
or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of Series A-2 Preferred Stock
and shall no longer be designated as Series A-2 Preferred Stock.
*********************
RESOLVED,
FURTHER, that the president and the secretary of the Corporation be and they hereby are authorized and directed to prepare and file a
Certificate of Designation of Preferences, Rights and Limitations in accordance with the foregoing resolution and the provisions of Delaware
law.
IN
WITNESS WHEREOF, the undersigned have executed this Amended and Restated Certificate of Designation of Preferences, Rights and Limitations
this 20th day of December, 2024.
| |
/s/
Campbell Becher |
|
|
/s/
Kevin Richardson II |
| Name:
|
Campbell
Becher |
|
Name: |
Kevin
Richardson II |
| Title:
|
President |
|
Title: |
Secretary |
ANNEX
A
NOTICE
OF CONVERSION
(To
be Executed by the Registered Holder in order to Convert Shares of Series A-2 Preferred Stock)
The
undersigned hereby elects to convert the number of shares of Series A-2 Preferred Stock indicated below into shares of common stock,
par value $0.001 per share (the “Common Stock”), of Qualigen Therapeutics, Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such
certificates and opinions as may be reasonably required by the Corporation. No fee will be charged to the Holders for any conversion,
except for any such transfer taxes.
Conversion
calculations:
Date
to Effect Conversion: _____________________________________________
Number
of shares of Series A-2 Preferred Stock owned prior to Conversion: _______________
Number
of shares of Series A-2 Preferred Stock to be Converted: ________________________
Stated
Value of shares of Series A-2 Preferred Stock to be Converted: ____________________
Number
of shares of Common Stock to be Issued: ___________________________
Applicable
Conversion Price:____________________________________________
Number
of shares of Series A-2 Preferred Stock subsequent to Conversion: ________________
Address
for Delivery: ______________________
or
DWAC
Instructions:
Broker
no: _________
Account
no: ___________
| |
[HOLDER] |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
v3.24.4
Cover
|
Dec. 23, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Dec. 23, 2024
|
| Entity File Number |
001-37428
|
| Entity Registrant Name |
Qualigen
Therapeutics, Inc.
|
| Entity Central Index Key |
0001460702
|
| Entity Tax Identification Number |
26-3474527
|
| Entity Incorporation, State or Country Code |
DE
|
| Entity Address, Address Line One |
5857
Owens Avenue
|
| Entity Address, Address Line Two |
Suite 300
|
| Entity Address, City or Town |
Carlsbad
|
| Entity Address, State or Province |
CA
|
| Entity Address, Postal Zip Code |
92008
|
| City Area Code |
(760)
|
| Local Phone Number |
452-8111
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
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false
|
| Title of 12(b) Security |
Common Stock, par value
$.001 per share
|
| Trading Symbol |
QLGN
|
| Security Exchange Name |
NASDAQ
|
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