EX-10.3 4 vine1014form8kexh10_3.htm EXHIBIT 10.3

展品10.3

 

此證書所代表的證券的發行和出售，以及這些證券可以行使的證券並未根據1933年修訂法案或適用州證券法進行註冊。這些證券不得在缺乏以下條件時（a）根據1933年修訂法案，證券的有效登記聲明或（b）公司提供的對持有人的律師意見（如果公司要求），形式合理可被公司接受，認為根據該法案不需要登記，就獲得出售、轉讓或轉讓（i）對於第144條或第144A條根據該法案進行出售或有資格進行出售，或（ii）沒有進行出售或有資格進行出售根據該法案的情況下進行出售。儘管前述，這些證券可以在與由證券擔保的正當保證金賬戶或其他貸款或融資安排有關聯的情況下被抵押。根據本認股權證行使之後出售的普通股的數量可能低於根據本認股權證第1(a)章條款中所列金額。

新鮮葡萄酒公司。

購買普通股權證 股票

 

憑證編號：2024-[•]

認股股份：370,000

發行日期：2024年10月8日（“發行日期”）

新鮮葡萄美酒有限公司，一家依照內華達州法律組織的公司（以下簡稱“權益代理”），謹此證明，經過有效的代價，並已承認收到及其充足，[購買者]，本人或其被允許的轉讓人（以下簡稱“持有人”），有權根據下文所述的條款，在行使本認股權證（以下簡稱“權證（即「Warrant」）”）時，以當時有效的行使價格（如下文所定），購買公司的普通股（包括任何認股權證以兌換、轉讓或取代本證所發行的普通股的購買 權，以下簡稱“認股權證股份）。除非本憑證另有定義，否則本憑證中的大寫術語應按如下所述意義解釋 第18條。本憑證根據2024年10月8日簽訂的某特定證券購買協議（“」指公司於任何決定日期，直接或間接擁有大多數流通股份或擁有任何具有選舉董事或其他類似治理機構的普通投票權益的該人或實體，全部均稱為「”），由公司、其中提及的持有方以及其他簽署該協議的購買人（合稱“購買人”），不時修訂（“購買協議”).

1.行使認股權。

(a) 運動力學。受本條款及細則約束（包括但不限於限制） 列出在 第 1 (e) 節) 及除購買協議第 4.10 (a) 條另有規定外，持有人可行使本認證 在發行日期或之後的任何日子 (a」練習日期」)，全部或部分，通過交付（無論是通過傳真） 或以其他方式) 的書面通知書，以本文附件的形式為 展品 A （」運動通知」)，其中 持有人選擇行使本令。 與此相關， 持有人須 向本公司交付金額等於行使當日有效的行使價乘以數字 本認股權證被行使的認股權證股份（」總行使價」) 以現金或電匯 即時可用的資金。持有人不需要交付本認證正本，以影響行使 下文。對於少於所有認股權證股份之執行及交付行使通知，具有相同效力 作為取消本認股權證正本及發行新認股證，證明購買剩餘數量的權利 認股證股份。就所有當時剩餘的認股權證股份之執行及發出行使通知，具有相同的效力： 根據本條款交付認股權證股份後，取消本認股權證正本。在或之前 第一 (1街) 本公司收到的日期後的交易日 行使通知，本公司須透過傳真或電子郵件傳送確認收到行使行使的確認 通知，以本文附件的表格為 附件 B，致持有人和公司的轉讓代理人（」轉移 代理」)，該確認將構成向轉讓代理人按照該等行使通知處理指示的指示 使用本文的條款。在第二次或之前 (2第二) 本公司收到該等之日後的交易日 行使通知（或根據 1934 年法律或其他適用法律、規則或規例所要求的早期日期 該等認股權證股份於適用行使日期開始的交易）（」分享交貨日期」)，本公司 須 (X) 在轉讓代理人參與存儲信託公司的情況下（」惡意識別碼」) 快速自動化 證券轉讓計劃，應持有人的要求，將持有人的普通股總數目信用 根據此行使，可透過其存入 ／ 提款，存入持有人或其指定人在 DTC 的餘額帳戶 在託管系統，或（Y）如果轉讓代理未參與 DTC 快速自動證券轉讓計劃，則在 持有人要求發出並交付（通過信譽良好的隔夜快遞）到行使通知所指明的地址，一份證明書， 以持有人或其指定的人名義註冊，以持有人根據持有人權獲得的普通股數目 進行這樣的練習。在發出行使通知後，持有人在所有公司目的中被視為已成為持有人 有關行使本認股權證的認股權證股份的記錄，不論該認股權證股份的日期為何 存入持有人的 DTC 帳戶或交付證明該認股權證股份的證明日期（視情況而定） 是）。如果本認股權證是根據本行使而提交的 第 1 (a) 節 及認股權證股數 由本認股權證所代表的提出要行使，大於行使後獲得的認股權證股數目 持有人將本認股權證交還給本公司，然後應持有人的要求，該公司應盡快及 在任何行使後兩 (2) 個工作日後，並自行支出並交付給持有人（或其指定的人） 新認股證（根據 第 7 (d) 條) 代表購買可立即購買的認證股份數量的權利 在根據本認股權證行使之前，減去行使本認證的認股權證的數目。沒有分數 在行使本認股權證時，將發行普通股股份，而是將發行的普通股數量 須向上四捨五入至最接近的整數。本公司須支付任何及所有印章、發行及類似稅金、費用及開支 有關發行和交付可能需要支付的（包括但不限於轉讓代理的費用和費用） 行使本認股權證時的認股權證股份。儘管上述規定，本公司未能交付認股權證股份 在收到適用行使通知後的 (i) 兩 (2) 個交易日之前或之前向持有人（或之前）向持有人 根據 1934 年法案或其他適用法律、規則或規例，以結算該等認股權證股份交易所需的日期 於適用行使日) 及 (ii) 公司收到總行使價後兩 (2) 個交易日起 不會被視為違反本令的規定。儘管本令載有相反的內容，但在後立即 在登記聲明生效日期，本公司須讓轉讓代理交付未傳授的普通股份 向持有人（或其指定的人）有關持有人簽訂的任何可登記證券出售有關 銷售合同，並在適用範圍內交付作為特定註冊聲明的一部分的說明書副本， 並且持有人尚未解決。由發行日期至包括到期日期，本公司應保留 參與 DTC 快速自動化證券轉讓計劃的轉讓代理人。如果公司因任何原因失敗 在股份交付日期前向持有人交付有關行使通知的認股權證股份，公司須向持有人支付， 以現金形式作為清算損害，而不作為罰款，每股 1,000 美元受此行使之權證股（以 VWAP 為準） 在適用行使通知發出日期的普通股），該等失敗前五 (5) 天的每天 10 元 (增加) 至該認證前五 (5) 天後的每天適用總金額的 2% (2%) 股份被交付，或持有人撤銷該行使。本文不會限制持有人追求實際損害賠償的權利 本公司未能在本文所指明的期限內交付認股權證股份，而持有人有權追求 根據本條例、法律或公平方式可獲得的所有補救措施，包括特定履行法令和/或禁令救濟。練習 任何此類權利不得禁止持有人根據本協議的任何其他條款或適用條件下尋求執行損害賠償 規定（採購協議中定義）。

(b) 行使價格根據本憑證之條款與條件，對於本憑證而言，“行使價格”應等於 四毛（$0.40），受此調整（該“行使價格”）；並且持有人在任何情況下均無權行使本憑證以致持有普通股的金額，連同之前已行使的所有普通股，相當於公司已發行及流通股份總數的9.99%以上，受此提供之調整，包括但不限於在該測試期間內比例減少或增加普通股的任何股票分割、股票合併、重新分類或類似交易的調整。行使價格將四捨五入至最接近的$0.0001。

(c) 免現金行使e。 無。

(d) 爭端就於此價格或根據本條款應發行的認股證股份數目的算術計算，如有爭議情形，公司將立即發出未有爭議的認股證股份數目給持有人，並按照條款解決此類爭議。 根據「第13條款」的規定，任何解除合同的通知都必須按照書面形式交付。.

(e) 鍛煉的限制.

(i) 實惠所有權。本公司不適用於行使本認證的任何部分，持有人須 根據本令的條款及細則及任何行使，不有權行使本認證的任何部分 持有人一同行使之後，將無效，並視為從未作出的情況下被視為無效，並且被視為從未作出的情況。 其他歸屬方集體將有利的擁有超過 9.99%（」最大百分比」) 或 執行該等行使後，即時發行的普通股份。就上述句而言，總結 持有人及其他歸屬方有利擁有的普通股份數目應包括股數 持有人及所有其他歸屬方持有的普通股，加上行使時可發行的普通股份數目 本認股權證正在裁定該判決，但不包括以下的普通股股份 在 (A) 行使本認股權證的剩餘部份未經行使持有人或其中任何人士擁有的情況下可發行 其他歸屬方及 (B) 行使或轉換本公司任何其他證券的未行使或未轉換部分 持有人有利擁有的（包括但不限於任何可換股票據或可換股優先股票或認股權證）或 任何其他歸屬方受轉換或行使限制類似於本文所包含的限制 部分 1 (克) (一)。為此目的 第 1 (g) (i) 條，實惠所有權應按照第 13 (d) 條計算 1934 年法案。為確定持有人在行使時可獲得的普通股數目 本認股權證不超過最高百分比，持有人可 (如適用) 依據已發行股份數量 普通股的 (x) 表格 10-k 表格最近年報表，表格 10-Q 季度報告，現行 有關表格 8-k 或其他向 SEC 公開提交的報告或公司提供的信息（視情況而定），（y）更近期公開 本公司的公告或 (z) 本公司或轉讓代理人發出的任何其他書面通知（如有），並列明其編號 尚未發行的普通股份 (the」已報告的未償還股份數」)。如果公司收到行使通知 持有人發出的普通股實際數量少於已報告的未償還股份 數字，公司應 (i) 以書面通知持有人當時發行的普通股數目，以及在範圍內 該行使通知否則會導致持有人的實益所有權，如根據本文決定 第 1 (g) (i) 條， 若要超過最高百分比，持有人必須通知本公司要根據下列規定收購的認股權證股數減少。 該等行使通知（減少該等購買的股份數量，」減價股份」）及 (ii) 盡快 在合理可行的情況下，本公司應向持有人退還持有人為減價股所支付的任何行使價。用於 任何理由，根據持有人的書面或口頭要求，本公司應在一（1）個工作日內口頭確認和 以書面或電子郵件向持有人發出之普通股份數目。無論如何，未償還的人數 普通股股份須在對本公司的證券轉換或行使執行後確定，包括此 由持有人和任何其他歸屬方自報告已報告未償還股份編號之日起發出的認股證。 如行使本認股權證後向持有人發行普通股股，則導致持有人和其他人 被認為具有利地擁有超過未償還人數的最高百分比的歸因人 普通股股份（根據 1934 年法例第 13 (d) 條確定），持有人所發行的股份數目 而其他歸屬方的總實益所有權超過最高百分比（」超額股份」) 將被視為無效，並須自行取消，持有人不具有投票或轉讓超額的權力 股票。在發行超額股份被認為無效後，在合理可行的情況下，本公司將退回 持有人為超額股份支付的行使價向持有人。在向本公司發出書面通知後，持有人 可能不時減少或隨後增加（該增加直至第六十一日才生效（61）街) 日 在發出該通知後）對任何其他百分比不超過 9.99% 的最高百分比，如有關通知所述，須符合條件 (i) 任何上限百分比的上限增加，在第六十一日（61）之前才生效街) 該通知後的一天 已交付給本公司，且 (ii) 任何上述增加或減少只適用於持有人及其他歸屬方。用於 為了清楚起見，可根據本認股權證條款發行的普通股份超過最高百分比，須 不被視為持有人有利地擁有權，包括根據第 13 (d) 條或第 16a-1 (a) (1) 條的目的而言 1934 年法案。事先無法根據本條行使本令，不會對條文的適用性產生任何影響 本段對於任何後續確定可行使性。本段的條文應解釋 並以非嚴格遵守本條款的方式執行 第 1 (g) (i) 條 在必要的範圍內 更正本段或本段的任何部分可能有缺陷或與預期的實益所有權不相符 此內含的限制 第 1 (g) (i) 條 或作出必要或需要的更改或補充，以適當地發揮作用 這種限制。本段所載的限制不得豁免，並適用於本認證的繼任持有人。儘管如此 任何相反的內容，為避免任何疑問，如果行使任何認證會違反實益所有權 限制（「觸發日期」），持有人可根據其選擇以及其在本文所擁有的任何其他權利之外，可以： (i) 要求公司向持有人發行額外的權利以獲得認股證（」新認股證」) 可運用到 於適用觸發日期行使所有未償還證券時，可發行的 9.99% 普通股股份 (」新 認股證股份」)。新認股權證的期限與未償還認股權證相同，依相應的變動，以及一個練習 價格等於每股最低價格，其中一股普通股可根據任何時間直接或間接發行的最低價格 對任何此類未償還的認證。新認股權證在行使時可行使至可發行的普通股份之 9.99% 股份 截至觸發日期的所有未償還認股權證及; (ii) 與本公司誠實談判，以考慮其他方法， 例如，將超過實體所有權限制的股份行使在信託中存取的信託中 持有人如持有的認股權證股份可根據本第 2 (e) 條的規定行使

(ii) 無贖回此認股權不可贖回，公司無權贖回全部或任何部分 此認股權或認股權股份。

(iii)   交易所上市限制。如果向持票人發行普通股以轉換本票據或以其他方式根據本票據條款發行這些普通股股份，將超過9,689,950股普通股股份（根據“拆股並股”、“送轉”、“股票組合”、“資本重組”和類似事件調整後的數量），代表公司可以在不違反主要市場的規則或規定（包括NASDAQ上市規則5635(d)關於發行總數的規則）下，根據本票據條款進行轉換或以其他方式發行出去的普通股的總數；在不違反主要市場的規則和規定的情況下，不會對即將發行的股份數量進行限制，包括涉及《1934年法令第13(d)條》和規則《16a-1(a)(1)》的規則。公司在行使這個認股權時，若發行的普通股超出了《購買協議》中所定義的「交易所上限」，則不得發行任何普通股。

(f) 預留股份.

(g) 所需預留數量根據購買協議第4.10(a)條款，只要本認股權仍有效，公司應隨時將足夠用於發行的普通股保留一定數量的股份，數量至少等於現有本認股權下發行普通股所需的最大數量的200%（不考慮任何行使限制）（即所謂的根據本第4(d)(ii)條所保留的普通股數量不應偏離與任何換股（其他（但非根據其條款轉換本票之換股））、撤銷或逆向股票分割有關的所有普通股成比例減少。」；但絕不得在任何時候將根據本 第1(h)(i)條減少，除非在與下 第2(a)條款一節所述的行使認股權或其他事件相關時按比例進行調整。所需保留數量（包括但不限於已保留股份數量的每次增加）應基於根據購買協議發行的所有證券（包括本認股權）以及買方在交割日持有的普通股，行使或轉換後可發行的普通股數或保留股份的增加數量，視情況而定。如果持有人出售或轉讓其全部或任何部分認股權，則該所要求的保留數量要求應繼續適用於每位受讓人行使之普通股數量，而該認股權可以行使。

(h) 授權股份不足即使在此情況下，公司仍持有有限股份 第1(h)(i)條，並不限於此，在授權和未保留足夠股份共同 股票擔保品仍有效期間內，如公司沒有足夠數量的授權和未保留的普通 股來滿足其保留所需的保留金額（其中的“公司立約所有應發行和交付的認股權股票，一經按照本協議條款支付適用的行使價格，即應合法並有效授權，發行並全額支付”），則公司應立即採取一切必要措施，以增加公司的授權普通股數量，使其足夠 以讓公司為此未解決的授權預留所需的金額。在不限制上述 句子的一般性的情況下，在出現授權股份不足的情況後，但絕不晚於 自該授權股份不足事件發生之日起六十（60）日內，公司應召開股東會，以批准增加授權普通股數量。有關該會議，公司應向每位股東 提供授權書陳述書，符合適用的聯邦和州證券法規定，並盡最大努力取得股東的批准 該增加授權的普通股數量，並促使其董事會建議股東 批准該提案。根據購買協議的第4.10(a)條，倘若 公司因未持有足夠的授權但尚未發行的普通股而無法在本授權後發行 普通股（這些未提供的普通股數量，即“授權錯誤股份”），公司應支付現金，以換取 以此授權不足股份取消的部分此授權以取得的股份，價格等於 （i）此授權不足股份的數量和(x)普通股的最高收盤價的乘積 在投資日期間的任何交易日，自持有人向公司交付相應的行使通知書之日開始，直到 發給及支付本 當GP Parties的整體最低持股門檻（如下定義）不再有利地擁有時，本協定應終止。任何替換董事的候選人應受到董事會的合理批准，該批准不得遲延、條件或無理地拒絕。根據本「Section 1(h)」款，任何根據本款被任命為董事會成員的替換董事，在終止其在董事會的任職之前，應被任命為董事會中任何相關委員會的成員。該董事會或NCG委員會誠實地決定不批准GP Parties提議的任何替換董事，則GP Parties有權根據本「Section 1(h)」款提出其他替換董事，直到替換董事被任命為董事會成員為止。對於本協議而言，將「GP董事」視為替換相應GP董事或根據本「Section 1(h)」款一致替換其他替換董事的人。；和（ii）在持有人購買（在公開市場交易或其他方式）普通股股票以交付以滿足持有人因授權失敗股份出售所產生的券商佣金和其他實際支出時，持有人在此期間所​​發生的任何費用。 本文件中不含有任何內容 第1(h)部分 不得限制公司根據採購協議的任何條款下的任何義務。 本文件中不含有任何內容 第1(h)部分 不得限制公司根據採購協議的任何條款下的任何義務。 本文件中不含有任何內容

2. Adjustment of Exercise Price and Number of Warrant Shares. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 2.

(a) Stock Dividends and Splits. Without limiting any provision of Section 2(b), Section 3 or Section 4, if the Company, at any time on or after the Subscription Date, (i) pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes a distribution on any class of its Capital Stock (as defined in the Purchase Agreement) that is payable in shares of Common Stock, (ii) subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii) combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock 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 clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination. If any event requiring an adjustment under this paragraph occurs during the period that an Exercise Price is calculated hereunder, then the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.

(b) Adjustment Upon Issuance of Shares of Common Stock. So long as any of the Notes are outstanding, if and whenever on or after the Subscription Date, the Company issues or sells any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities issued or sold or deemed to have been issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Exercise Price in effect immediately prior to such issuance or sale (such Exercise Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Exercise Price and the New Issuance Price under this Section 2(b)), the following shall be applicable:

(i) Issuance of Options. If the Company in any manner grants or sells any Options with an exercise price per share less than the Applicable Price, then at the time of the actual issuance of shares of Common Stock upon exercise of such Options the Exercise Price shall be adjusted in accordance with Section 2(b).

(ii) Issuance of Convertible Securities. From the Closing Date forward, the Company shall not issue any Convertible Securities without the express permission and approval of the undersigned Holder (which permission and approval shall not be unreasonably withheld) so long as the Note and Warrant remain outstanding. If the Holder agrees to waive such provision prohibiting the issuance of Convertible Securities subsequent to the Closing Date, and the Company in any manner issues or sells any Convertible Securities with a conversion price per share less than the Applicable Price, then at the time of the actual issuance of shares of Common Stock upon conversion or exchange of such Convertible Securities the Exercise Price shall be adjusted in accordance with Section 2(b)..

(iii) [Reserved].

(iv) [Reserved].

(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).

(vi) [Reserved]

(c) [Reserved].

(d) Holder’s Right of Alternative Exercise Price Following Issuance of Certain Options or Convertible Securities. In addition to and not in limitation of the other provisions of this Section 2, if, at any time while any of the Notes remain outstanding, the Company in any manner issues or sells or enters into any agreement to issue or sell, any shares of Common Stock, Options or Convertible Securities (any such securities, “Variable Price Securities”) after the Subscription Date that are issuable pursuant to such agreement or convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may vary with the market price of the shares of Common Stock, including by way of one or more reset(s) to a fixed price, but exclusive of such formulations reflecting customary anti-dilution provisions (such as share splits, share combinations, share dividends and similar transactions) (each of the formulations for such variable price being herein referred to as, the “Variable Price”), the Company shall provide written notice thereof via facsimile and overnight courier to the Holder on the date of such agreement and the issuance of such Convertible Securities or Options. From and after the date the Company issues any such Variable Price Securities, the Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the Exercise Price upon exercise of this Warrant by designating in the Exercise Notice delivered upon any exercise of this Warrant that solely for purposes of such exercise the Holder is relying on the Variable Price rather than the Exercise Price then in effect. The Holder’s election to rely on a Variable Price for a particular exercise of this Warrant shall not obligate the Holder to rely on a Variable Price for any future exercises of this Warrant.

(e) [Reserved].

(f) Other Events. In the event that the Company (or any Subsidiary (as defined in the Purchase Agreement)) shall take any action to which the provisions hereof are not strictly applicable, or, if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s board of directors shall in good faith determine and implement an appropriate adjustment in the Exercise Price and the number of Warrant Shares (if applicable) so as to protect the rights of the Holder, provided that no such adjustment pursuant to this Section 2(f) will increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2, provided further that if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the Company’s board of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination shall be final and binding absent manifest error and whose fees and expenses shall be borne by the Company.

(g) Calculations. All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issuance or sale of shares of Common Stock.

(h) Voluntary Adjustment by Company. The Company may at any time during the term of this Warrant, with the prior written consent of the Purchaser, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.

(i) Prohibition on Reverse Splits. Notwithstanding any other provision in this Warrant, for so long as the Notes are outstanding, the Company may not affect a reverse split of its Capital Stock without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld).

3. Rights Upon Distribution of Assets. In addition to any adjustments pursuant to Section 2 above, if the Company shall declare or make 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, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to the extent of any such excess) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the 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).

4. Purchase Rights; Fundamental Transactions.

(a) Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time while the Notes are outstanding the Company grants, issues or sells any Options, Convertible Securities 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 exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) 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, issuance 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 and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to the 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 the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been no such limitation).

(b) Fundamental Transactions. The Company shall not enter into or be party to a Fundamental Transaction other than for all cash unless (i) the Successor Entity assumes in writing all of the obligations of the Company under this Warrant and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 4(b) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction, including agreements to deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant, including, without limitation, which is exercisable for a corresponding number of Capital Stock equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the Exercise Price hereunder to such shares of Capital Stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of Capital Stock, such adjustments to the number of Capital Stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction) and (ii) the Successor Entity (including its Parent Entity) is a publicly traded corporation whose common stock is quoted on or listed for trading on a Trading Market. Upon the consummation of a Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of the applicable Fundamental Transaction, the provisions of this Warrant (and if applicable, the other Transaction Documents) referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents, as applicable, with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of a Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant 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 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of this Warrant prior to such Fundamental Transaction, such shares of publicly traded common stock (or its equivalent) of the Successor Entity (including its Parent Entity) which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had this Warrant been exercised immediately prior to such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted in accordance with the provisions of this Warrant. Notwithstanding the foregoing, and without limiting Section 1(g) hereof, the Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section 4(b) to permit a Fundamental Transaction without the assumption of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to the consummation of a Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make appropriate provision to insure that the Holder will thereafter have the right to receive upon an exercise of this Warrant at any time after the consummation of a Fundamental Transaction but prior to the Expiration Date, in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of the Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had this Warrant been exercised immediately prior to such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder. For the avoidance of doubt, in the event of the occurrence of a Fundamental Transaction, the Successor Entity, in addition to any of its other obligations set for in this Section 5, shall agree in writing that the Holder is entitled to the anti-dilution rights set forth in this Section 5 for the balance of the time periods set forth in this Warrant.

(c) [Reserved]

(d) Application. The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events and shall be applied as if this Warrant (and any such subsequent warrants) were fully exercisable and without regard to any limitations on the exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied however with respect to shares of the Company’s Capital Stock registered under the 1934 Act and thereafter receivable upon exercise of this Warrant (or any such other warrant)).

5. Noncircumvention. The Company hereby covenants and agrees that the Company will not, by amendment of its articles of incorporation or bylaws, each as amended to date, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issuance or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (a) shall not increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, (b) will not take any action which will cause the exercise price to fall below par value, and (c) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon the exercise of this Warrant. Notwithstanding anything herein to the contrary, if after the sixty (60) calendar day anniversary of the Issuance Date, the Holder is not permitted to exercise this Warrant in full for any reason (other than pursuant to restrictions set forth in Section 1(g) hereof), the Company shall use its best efforts to promptly remedy such failure, including, without limitation, obtaining such consents or approvals as necessary to permit such exercise into shares of Common Stock.

6.   Warrant Holder Not Deemed a Stockholder. Except as otherwise specifically provided herein, the Holder, solely in its capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which it is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall provide the Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the giving thereof to the stockholders.

7. Reissuance of Warrants.

(a) Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred.

(b) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.

(c) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional shares of Common Stock shall be given.

(d) Issuance of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant and (v) such new Warrant shall not be redeemable.

8. Notices. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section 5.4 of the Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Warrant (other than the issuance of shares of Common Stock upon exercise in accordance with the terms hereof), including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon each adjustment of the Exercise Price as provided herein and the number of Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s), (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 grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property to holders of 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 in conjunction with such notice being provided to the Holder, (iii) at least fifteen (15) Trading Days prior to the consummation of any Fundamental Transaction and (iv) within two (2) Business Days of the occurrence of an Event of Default (as defined in the Note), setting forth in reasonable detail any material events with respect to such Event of Default and any efforts by the Company to cure such Event of Default. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of its Subsidiaries, the Company, if applicable, shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K or take such other action as reasonably determined by the Holder to disseminate such material, non-public information to the marketplace. If the Company or any of its Subsidiaries provides material non-public information to the Holder that is not simultaneously filed in a Current Report on Form 8-K and the Holder has not agreed to receive such material non-public information, the Company hereby covenants and agrees that the 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. It is expressly understood and agreed that the time of execution specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.

9. Amendment and Waiver. Except as otherwise provided herein, the provisions of this Warrant may be amended and the Company may take any action herein prohibited or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.

10. Severability. If any provision of this Warrant 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 Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions of the Company and the Holder 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 such parties or the practical realization of the benefits that would otherwise be conferred upon such parties. The Company and the Holder will each endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

11. Governing Law. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of Nevada, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Nevada or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Nevada. The Company hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to the Company at the address set forth in the Purchase Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Clark County, Nevada, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the 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 the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.

12. Construction; Headings. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any Person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction Documents shall have the meanings ascribed to such terms on the Closing Date in such other Transaction Documents unless otherwise consented to in writing by the Holder.

13. Dispute Resolution.

(a)Submission to Dispute Resolution.

(i) In the case of a dispute relating to the Exercise Price, the Closing Sale Price, Black Scholes Consideration Value, Event of Default, Black Scholes Value or fair market value or the arithmetic calculation of the number of Warrant Shares (as the case may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute to the other party via facsimile or electronic mail (A) if by the Company, within two (2) Business Days after the occurrence of the circumstances giving rise to such dispute or (B) if by the Holder, at any time after the Holder learned of the circumstances giving rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute relating to such Exercise Price, such Closing Sale Price, such Black Scholes Consideration Value, such Event of Default, such Black Scholes Value or such fair market value or such arithmetic calculation of the number of Warrant Shares (as the case may be), at any time after the second (2nd) Business Day following such initial notice by the Company or the Holder (as the case may be) of such dispute to the Company or the Holder (as the case may be), then the Holder may, at its sole option, select an independent, reputable investment bank, reasonably acceptable to the Company, to resolve such dispute.

(ii) The 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 13 and (B) written documentation supporting its position with respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”) (it being understood and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit any written documentation or other support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).

(iii) The Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the 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.

14. Remedies, Characterization, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant and 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 the right of the Holder to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Warrant. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, exercises and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except 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 irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Warrant (including, without limitation, compliance with Section 2 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the exercise of this Warrant shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than the Holder or its agent on its behalf.

15. Payment of Collection, Enforcement and Other Costs. If (a) this Warrant is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the holder otherwise takes action to collect amounts due under this Warrant or to enforce the provisions of this Warrant or (b) there occurs any bankruptcy, reorganization, receivership of the company or other proceedings affecting company creditors’ rights and involving a claim under this Warrant, then the Company shall pay the costs incurred by the 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.

16. Transfer. This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company subject to compliance with applicable state and federal securities laws.

17. Registration Rights. The Holder of this Warrant has certain piggy-back registration rights set forth in the Purchase Agreement dated at or about the date hereof, to register the resale of the Warrant Shares under the 1933 Act at the time and in the manner specified in the Securities Purchase Agreement.

18. Certain Definitions. In addition to the terms defined elsewhere in this Warrant or in the Purchase Agreement, for purposes of this Warrant, the following terms shall have the following meanings:

(a) “1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

(b) “1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

(c) “Adjustment Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale in accordance with Section 2) of shares of Common Stock (other than rights of the type described in Section 3 and 4 hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).

(d) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

(e) “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase shares of Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such; provided, that such issuance shall not exceed in the aggregate fifteen percent 15% of the outstanding shares of Common Stock without the prior approval of the Holder. Provided, however, once the Company becomes a reporting company under the Exchange Act, any such Stock Plan to be deemed an ‘Approved Stock Plan’ must be approved by a majority of the disinterested, nonemployee members of the board of directors.

(f) “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 Issuance Date, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s shares of Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage

(g) [Reserved]

(h) [Reserved]

(i) “Bloomberg” means Bloomberg, L.P.

(j) “Business Day” means any day except any Saturday, any Sunday, any day which a federal legal holiday in the United States or any day is on which the Federal Reserve Bank of New York is not open for business.

(k) “Closing Sale Price” means, for any security as of any date, the last closing trade price 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 trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange that is a Trading Market for such security, the last trade price of such security on the principal securities exchange that is a Trading Market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc.. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder 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 13. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.

(l) “Common Stock” means (i) the Company’s shares of common stock, $0.001 par value per share, and (ii) any Capital Stock into which such shares of common stock shall have been changed or any share capital resulting from a reclassification of such shares of common stock.

(m) “Convertible Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.

(n) [Reserved].

(o) [Reserved].

(p) [Reserved].

(q) “Excluded Securities” means (i) shares of Common Stock or standard options to purchase shares of Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan (as defined above), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 15% of the shares of Common Stock issued and outstanding immediately prior to the Subscription Date and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Purchaser; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the Subscription Date, approved by the Holder and set forth on the Disclosure Schedules, provided that the conversion price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects the Purchaser; (iii) the shares of Common Stock issuable upon conversion of the Note or otherwise pursuant to the terms of the Note; provided, that the terms of the Note are not amended, modified or changed on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Subscription Date), and (iv) the shares of Common Stock issuable upon exercise of the Warrant; provided, that the terms of the Warrant are not amended, modified or changed on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Subscription Date).

(r) “Expiration Date” means the date that is the fifth (5th) anniversary of the Issuance Date or, if such date falls on a day other than a Trading Day or on which trading does not take place on the Principal Market (a “Holiday”), the next date that is not a Holiday.

(s) “Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its 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 outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock or share 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, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its shares of Common Stock, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through , purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock not held by all such Subject Entities as of the date of this Warrant calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other 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 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.

(t) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.

(u) “Note” has the meaning ascribed to such term in the Purchase Agreement and shall include all notes issued in exchange therefor or replacement thereof.

(v) “Options” means any rights, warrants or options to subscribe for or purchase of shares of Common Stock or Convertible Securities.

(w) “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 a Trading 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.

(x) “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.

(y) “Principal Market” means the NYSE MKT.

(z) [Reserved]

(aa) “SEC” means the United States Securities and Exchange Commission or the successor thereto.

(bb) “Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.

(cc) “Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been entered into.

(dd) “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 is 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 that is a Trading Market on which the shares of Common Stock is then traded, provided that “Trading Day” shall not include any day on which the shares of Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the shares of Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations other than price or trading volume 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.

(ee) “VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal Trading Market for such security, then on the principal securities exchange or securities market that is a Trading Market on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink 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 VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder 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 13. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.

[signature page follows]

 
 

IN WITNESS WHEREOF, the Company has caused this Warrant to purchase shares of Common Stock to be duly executed as of the Issuance Date set out above.

 

FRESH VINE WINE, INC.

 

 

 

By : __________________________

Name: Michael Pruitt

Title: Chief Executive Officer

 
 

EXHIBIT A

 

EXERCISE NOTICE

 

TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT TO PURCHASE SHARES OF COMMON STOCK

 

FRESH VINE WINE, INC.

 

The undersigned holder hereby elects to exercise the Warrant to purchase shares of Common Stock (the “Warrant”) of Fresh Vine Wine, Inc., a company organized under the laws of the State of Nevada (the “Company”), as specified below. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.

 

1. Form of Exercise Price. The Holder intends that payment of the Aggregate Exercise Price shall be made as:

 

o a “Cash Exercise” with respect to _______________ Warrant Shares.

 

2. Payment of Exercise Price. The Holder shall pay the Aggregate Exercise Price in the sum of $______________to the Company in accordance with the terms of the Warrant.

 

3. Delivery of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, ________________ shares of Common Stock in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:

 

o Check here if requesting delivery as a certificate to the following name and to the following address:

 

Issue to:

______________________________________________________

______________________________________________________

o Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:

 

DTC Participant: ______________________________________________________

DTC Number: ________________________________________________________

Account Number: ______________________________________________________

4. Maximum Percentage Representation. Notwithstanding anything to the contrary contained herein, this Exercise Notice shall constitute a representation by the Holder of the Warrant submitting this Exercise Notice that after giving effect to the exercise provided for in this Exercise Notice, such Holder (together with its Affiliates) will not have beneficial ownership (together with the beneficial ownership of such Person’s Affiliates) of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding shares of Common Stock of the Company as determined pursuant to the provisions of Section 1(g)(i) of the Warrant.

 

Date: _____________

 

 

  _____________________________

Name of Registered Holder

 

By: _______________________________

Name:

 

Title: ______________________________

 

Tax ID: ____________________________

 

Facsimile: __________________________

 

E-mail Address: ______________________

 
 

EXHIBIT B

 

ACKNOWLEDGMENT

 

The Company (a) hereby acknowledges this Exercise Notice (b) certifies that the above indicated number of shares of Common Stock [are][are not] eligible to be resold by the Holder either (i) pursuant to Rule 144 under the 1933 Act (subject to the Holder’s execution and delivery to the Company of a customary Rule 144 representation letter) or (ii) an effective and available registration statement and (c) hereby directs Securities Transfer Corporation to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated October 4, 2024 from the Company and acknowledged and agreed to by Computershare .

 

Fresh Vine Wine, Inc.

 

By: _________________________________

Name: Michael Pruitt

Title: Chief Executive Officer