Freight (FRGT) 6-KCurrent report (foreign)

Exhibit 3.1

Company No. 1891111

TERRITORY OF THE BRITISH VIRGIN ISLANDS

BVI BUSINESS COMPANIES ACT (AS REVISED)

FREIGHT TECHNOLOGIES, INC.

A Company Limited By Shares

MEMORANDUM AND ARTICLES OF ASSOCIATION

Incorporated on the 28th day of September 2015

Amended and Restated on the 20th day of March 2017

Amended and Restated on the 26th day of October 2020

Amended and Restated on the 20th day of December 2021

Amended and Restated on 14^th day of February 2022

Amended and Restated on 26^th day of May 2022

Amended and Restated on 13th day of July 2022

Amended and Restated on [●] day of March 2023

TERRITORY OF THE BRITISH VIRGIN ISLANDS

BVI BUSINESS COMPANIES ACT (AS REVISED)

AMENDED AND RESTATED

MEMORANDUM OF ASSOCIATION

OF

FREIGHT TECHNOLOGIES, INC.

A Company Limited By Shares

The name of the Company is Freight Technologies, Inc.

The Company is a company limited by shares.

The Company shall issue registered Shares only. The Company is not authorised to issue bearer Shares, convert registered Shares to bearer Shares or exchange registered Shares for bearer Shares.

Additional Consideration has the meaning given to it in Section 3.4.5 of the Schedule.

Act means the BVI Business Companies Act (As Revised), as amended from time to time, and includes the BVI Business Companies Regulations (As Revised) and any other regulations made under the Act.

Affiliate means, with respect to a specified Person, a Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the specified Person.

Articles means the attached Articles of Association of the Company.

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 original issuance date of such Preferred Shares, directly or indirectly managed or advised by the investment manager of a shareholder of Series A Preferred Shares or Series B Preferred Shares (as appropriate) or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of such shareholder of Series A Preferred Shares or Series B Preferred Shares (as appropriate) or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group (as defined by the Exchange Act) together with such shareholder of Series A Preferred Shares or Series B Preferred Shares (as appropriate) or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Ordinary Shares would or could be aggregated with such shareholder’s and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively such shareholder of Series A Preferred Shares or Series B Preferred Shares (as appropriate) and all other Attribution Parties to the Maximum Percentage.

Blank Check Preferred Shares has the meaning given to it in Clause 5.1(e) of the Memorandum.

business day means a weekday on which banks are generally open for business in New York City, New York.

Commission means the United States Securities and Exchange Commission.

Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting securities, by contract, or otherwise.

Conversion Amount means the sum of the Stated Value at issue.

Conversion Shares means, collectively, the Ordinary Shares issuable upon conversion of the Series B Preferred Shares in accordance with the terms of the Schedule.

Deemed Liquidation Event has the meaning given to it in Section 3.4.2 of the Schedule.

electronic means actuated by electric, magnetic, electro-magnetic or electro-mechanical energy and ‘by electronic means’ means by any manner capable of being so actuated and shall include email and/or other data transmission service.

Exchange Act means the Securities Exchange Act of 1934 Act of the United States.

executed includes any mode of execution.

Initial Consideration has the meaning given to it in Section 3.4.5 of the Schedule.

Liquidity Date means the earliest of the date that (a) a Registration Statement(s) registering for resale all of the Conversion Shares (unless partially waived by a Series B Preferred Shareholder) has been declared effective by the Commission and (b) all of the Underlying Ordinary Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale restrictions

Maximum Percentage has the meaning given to it in Section 3.5.9 of the Schedule.

Memorandum means this Memorandum of Association of the Company (including, for the avoidance of doubt, the Schedule) as originally registered or as from time to time amended or restated.

Merger Agreement has the meaning given to it in Section 3.4.3 of the Schedule.

Option has the meaning given to it in Section 3.5.4 of the Schedule.

Ordinary Share Equivalents means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred shares, 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, Ordinary Shares.

Outstanding Share Number has the meaning given to it in Section 3.5.9 of the Schedule.

Payment Distribution has the meaning given to it in Section 4.5.6(c) of the Schedule.

Person or person includes, without limitation, an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, unincorporated association, trusts, the estates of deceased individuals or any other entity or organization.

present in person means, in the case of an individual, that individual or his lawfully appointed attorney being present and, in the case of corporation, being present by duly authorised representative or lawfully appointed attorney and, in relation to meetings, ‘in person’ shall be construed accordingly.

Proscribed Powers means the powers to: (a) amend this Memorandum or the Articles; (b) designate committees of directors; (c) delegate powers to a committee of directors; (d) appoint or remove directors; (e) appoint or remove an agent; (f) approve a plan of merger, consolidation or arrangement; (g) make a declaration of solvency or to approve a liquidation plan; or (h) make a determination that immediately after a proposed distribution the value of the Company’s assets will exceed its liabilities and the Company will be able to pay its debts as they fall due.

Reference Price has the meaning given to it in Section 3.5.1 of the Schedule.

Registrar means the Registrar of Corporate Affairs appointed under section 229 of the Act.

Registration Statement means a registration statement filed with the Commission covering the resale of the Conversion Shares by the Series B Preferred Shareholders.

Requisite Holder has the meaning given to it in Section 3.1.1 of the Schedule.

Resolution of Directors means either:

Resolution of Shareholders means either:

Schedule means the schedule to the Memorandum which forms a part of the same as provided for therein.

Seal means any seal which has been duly adopted as the common seal of the Company.

Securities means shares and debt obligation of every kind of the Company, and including without limitation options, warrants and rights to acquire shares of debt obligations.

Series A Conversion Price means has the Series A1-A Conversion Price, Series A2 Conversion Price and Series A4 Conversion Price (as appropriate).

Series A1-A Conversion Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A2 Conversion Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A4 Conversion Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A Original Issue Date means the date of the first issuance of any Series A Preferred Shares regardless of the number of transfers of any particular Series A Preferred Shares thereafter, and regardless of the number of certificates which may be issued to evidence such Series A Preferred Shares.

Series A Reference Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A1-A Reference Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A2 Reference Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A4 Reference Price has the meaning given to it in Section 3.5.1(a) of the Schedule.

Series A Preferred Shares has the meaning given to it in Clause 5.1(b) of the Memorandum.

Series B Conversion Price means US$1.40, subject to adjustment in accordance with the terms of the Schedule.

Series B Original Issue Date means the date of the first issuance of any Series B Preferred Shares regardless of the number of transfers of any particular Series B Preferred Shares thereafter, and regardless of the number of certificates which may be issued to evidence such Series B Preferred Shares.

Series B Preferred Shares has the meaning given to it in Clause 5.1(c) of the Memorandum.

Share means a share issued or to be issued by the Company, including without limitation, Ordinary Shares, Series A Preferred Shares, Series B Preferred Shares and Blank Check Preferred Shares.

Shareholder means a person whose name is entered in the register of members of the Company as the holder of one or more Shares or fractional Shares.

Stated Value means each Series B Preferred Share shall have a par value of US$0.0001 per share and a stated value equal to US$6.60, subject to adjustment such that any adjustment to the Series B Conversion Price shall result in a corresponding equivalent adjustment to the Stated Value.

Stock Exchange means the stock exchange(s) on which Shares are listed from time to time.

Subsidiary means any subsidiary of the Company including any direct or indirect subsidiary of the Company.

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 Ordinary Share 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).

Transfer Agent means Transhare Securities Transfer & Registrar, the current transfer agent of the Corporation with a mailing address of 15500 Roosevelt Blvd., Suite 302, Clearwater, FL 33760, and any successor transfer agent of the Company.

VWAP means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares is then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares 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 the Ordinary Shares is then quoted on OTCQB or OTCQX and neither are a Trading Market at such time, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Shares is not then quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported in the “Pink Sheets” published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith by the shareholders of a majority in interest of the Preferred Shares then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

written or any term of like import includes information generated, sent, received or stored by electronic, electrical, digital, magnetic, optical, electromagnetic, biometric or photonic means, including electronic data interchange, electronic mail, telegram, telex or telecopy, and in writing shall be construed accordingly.

Signed for Start Incorp Services Limited of Start Chambers, Wickham’s Cay II, P.O. Box 2221, Road Town, Tortola, British Virgin Islands for the purpose of incorporating a BVI Business Company under the laws of the British Virgin Islands on the 28th day of September 2015.

Incorporator

Schedule

This Schedule forms a part of the Memorandum such that all rights, privileges, restrictions and conditions attaching to the Ordinary Shares, Series A Preferred Shares and Series B Preferred Shares and contained herein are deemed to be set out in full in the Memorandum.

In the event of any conflict between the provisions of the Memorandum and the Articles, the provisions of the Memorandum and, in particular, this Schedule shall prevail.

(ii) reclassify, alter or amend any existing security of the Company that is junior to any such class of Series A Preferred Shares in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with any such class of Series A Preferred Shares in respect of any such right, preference or privilege;

Any amendment to Regulation 22 of the Articles shall require the written consent or affirmative vote of the Requisite Holders given in writing or by vote at a meeting.

Any rights, powers, preferences and other terms of the Series A Preferred Shares in this Schedule, the Memorandum or the Articles, may be waived on behalf of all holders of Series A Preferred Shares by the written consent or affirmative vote of the Requisite Holders.

The Series A Preferred Shares shall not be entitled to vote on any Resolution of Shareholders, except as expressly provided to the contrary in the provisions of the Act or the Schedule or in relation to a variation of the rights of the Series A Preferred Shares (or any class of Series A Preferred Shares) pursuant to the Memorandum.

The Company shall not declare, pay or set aside any dividends on shares of any other class or series of shares of the Company (other than dividends on Ordinary Shares payable in Ordinary Shares by way of a bonus share issuance or otherwise) unless (in addition to the obtaining of any consents required elsewhere in this Memorandum and Articles) the holders of the Series A Preferred Shares then outstanding shall simultaneously receive with the shareholders of Ordinary Shares, a dividend on each outstanding Series A Preferred Shares in an amount at least equal to (i) in the case of a dividend on Ordinary Shares or any class or series that is convertible into Ordinary Shares, that dividend per shares of Series A Preferred Share as would equal the product of (A) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Ordinary Shares and (B) the number of Ordinary Shares issuable upon conversion of a Series A Preferred Share, in each case calculated on the record date for determination of shareholders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into Ordinary Shares, at a rate per share of Series A Preferred Share determined by (A) dividing the amount of the dividend payable on each share of such class or series of shares by the original issuance price of such class or series of shares (subject to appropriate adjustment in the event of any share dividend, share split, division, combination or other similar share reorganization with respect to such class or series) and (B) multiplying such fraction by an amount equal to the applicable Original Issue Price (as defined below); provided; that, if the Company declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of shares of the Company, the dividend payable to the shareholders of Series A Preferred Shares pursuant to this Section 3.3 shall be calculated based upon the dividend on the class or series of shares that would result in the highest Series A2 Preferred Shares dividend.

The “Series A1-A Original Issue Price” shall mean US$0.47 per share, subject to appropriate adjustment in the event of any share dividend, share split, division, combination or other similar share reorganization with respect to the Series A1-A Preferred Shares. The “Series A2 Original Issue Price” shall mean US$0.47 per share, subject to appropriate adjustment in the event of any share dividend, share split, division, combination or other similar recapitalization with respect to the Series A2 Preferred Shares. The “Series A4 Original Issue Price” shall mean US$1.77 per share, subject to appropriate adjustment in the event of any share dividend, share split, division, combination or other similar share reorganization with respect to the Series A4 Preferred Shares. The “Series Seed Original Issue Price shall mean US$16.3974 per share, subject to appropriate adjustment in the event of any share dividend, share split, division, combination or other similar share reorganization with respect to the Series Seed Preferred Shares (the Series A1-A Original Issue Price, the Series A2 Original Issue Price, the Series A4 Original Issue Price and the Series Seed Original Issue Price shall be collectively referred to herein as the “Original Issue Price”)

In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the assets of the Company available for distribution to its shareholders or, in the case of a Deemed Liquidation Event, the consideration or the Available Proceeds, as the case may be, shall be distributed to the shareholders of Series A4 Preferred Shares, the shareholders of Series A2 Preferred Shares, the shareholders of Series A1 Preferred Shares, the shareholders of the Series Seed Preferred Shares and the shareholders of Ordinary Shares, pro rata based on the number of shares held by each shareholder, treating for this purpose all such securities as if they had been converted to Ordinary Shares pursuant to the terms of this Memorandum and Articles of Association immediately prior to such liquidation, dissolution or winding up of the Company or Deemed Liquidation Event.

Each of the following events shall be considered a “Deemed Liquidation Event” for the purposes of this Section 3 of the Schedule:

except any such merger or consolidation involving the Company or a subsidiary in which the shares of the Company outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the shares of (1) the surviving or resulting company; or (2) if the surviving or resulting company is a wholly owned subsidiary of another company immediately following such merger or consolidation, the parent company of such surviving or resulting company; or

The Company shall not have the power to effect a Deemed Liquidation Event unless the agreement or plan of merger or consolidation for such transaction (the “Merger Agreement”) provides that the consideration payable to the shareholders of the Company in such Deemed Liquidation Event shall be paid to the shareholders of the Company in accordance with this Section 3.4 of the Schedule.

The amount deemed paid or distributed to the shareholders of the Company upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities to be paid or distributed to such holders pursuant to such Deemed Liquidation Event. The value of such property, rights or securities shall be determined in good faith by the directors of the Company.

In the event of a Deemed Liquidation Event pursuant to this Section 3.4, if any portion of the consideration payable to the shareholders of the Company is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Merger Agreement shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the shareholders of the Company as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the shareholders of the Company upon satisfaction of such contingencies shall be allocated among the shareholders of the Company in accordance with the subsection on Distribution of Remaining Assets, in each case, after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this subsection, consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.

The holders of the Series A Preferred Shares shall have conversion rights as follows (the “Conversion Rights”):

Subject to the provisions set out in the Section 3.5.9, each Series A Preferred Share shall be convertible, at the option of the shareholder thereof, at any time and from time to time, and without the payment of additional consideration by the shareholder thereof, into such number of fully paid and non-assessable Ordinary Shares as is determined by dividing the applicable Reference Price (as defined below) by the applicable Conversion Price (as defined below) in effect at the time of conversion. The “Series A4 Conversion Price” shall initially be equal to US$2.596. The “Series A2 Conversion Price” shall initially be equal to US$1.40. The “Series A1-A Conversion Price” shall initially be equal to US$1.40. The “Series Seed Conversion Price” shall initially be equal to US$36.01 (the Series A4 Conversion Price, Series A2 Conversion Price and Series A1-A Conversion Price shall collectively be referred to herein as the “Series A Conversion Price” and together with the Series Seed Conversion Price, the “Conversion Price”). The “Series A4 Reference Price” shall be equal to US$3.894. The “Series A2 Reference Price” shall be equal to US$3.122. The “Series A1-A Reference Price” shall be equal to US$2.086. The “Series Seed Reference Price” shall be equal to US$36.01 the Series A4 Reference Price, Series A2 Reference Price and Series A1-A Reference Price shall collectively be referred to herein as the “Series A Reference Price” and together with the Series Seed Reference Price, the “Reference Price”).

In the event of a liquidation, dissolution or winding up of the Company or a Deemed Liquidation Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the shareholders of Series A Preferred Shares.

No fractional Ordinary Shares shall be issued upon conversion of the Series A Preferred Shares. In lieu of any fractional shares to which the shareholder would otherwise be entitled, the Company shall (subject to compliance with the Act) pay cash equal to such fraction multiplied by the fair market value of an Ordinary Share as determined in good faith by the directors of the Company. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of Series A Preferred Shares the shareholder is at the time converting into Ordinary Shares and the aggregate number of Ordinary Shares issuable upon such conversion.

In order for a shareholder of Series A Preferred Shares to voluntarily convert Series A Preferred Shares into Ordinary Shares, such shareholder shall (a) provide written notice to the Company’s transfer agent at the office of the transfer agent for the Preferred Shares (or at the principal office of the Company if the Company serves as its own transfer agent) that such shareholder elects to convert all or any number of such shareholder’s of Series A Preferred Shares and, if applicable, any event on which such conversion is contingent and (b), if such shareholder’s shares are certificated, surrender the certificate or certificates for such Series A Preferred Shares (or, if such registered shareholder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Shares (or at the principal office of the Company if the Company serves as its own transfer agent). Such notice shall state such shareholder’s name or the names of the nominees in which such shareholder wishes the Ordinary Shares to be issued. If required by the Company, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company, duly executed by the registered shareholder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent (or by the Company if the Company serves as its own transfer agent) of such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion Time”), and the Ordinary Shares issuable upon conversion of the specified shares shall be deemed to be outstanding of record as of such date. The Company shall, as soon as practicable after the Conversion Time (i) issue and deliver to such shareholder of Preferred Shares, or to his, her or its nominees, a certificate or certificates for the number of full Ordinary Shares issuable upon such conversion in accordance with the provisions hereof and a certificate for the number (if any) of the Series A Preferred Shares represented by the surrendered certificate that were not converted into Ordinary Shares, and (ii) pay in cash such amount as provided in Section 3.5.2 above (Fractional Shares) in lieu of any fraction of a Ordinary Share otherwise issuable upon such conversion.

The Company shall at all times when the Series A Preferred Shares shall be outstanding, reserve and keep available out of its authorized but unissued shares, for the purpose of effecting the conversion of the Series A Preferred Shares, such number of its duly authorized Ordinary Shares as shall from time to time be sufficient to effect the conversion of all outstanding Series A Preferred Shares; and if at any time the number of authorized but unissued Ordinary Shares shall not be sufficient to effect the conversion of all then outstanding Series A Preferred Shares, the Company shall take such corporate action as may be necessary to increase its authorized but unissued Ordinary Shares to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite shareholder approval of any necessary amendment to this Memorandum and the Articles of Association. Before taking any action which would cause an adjustment reducing the applicable Conversion Price below the then par value of the Ordinary Shares issuable upon conversion of the Series A Preferred Shares, the Company will take any corporate action which may, in the opinion of its directors, be necessary in order that the Company may validly and legally issue fully paid and non-assessable Ordinary Shares at such adjusted Conversion Price.

All Series A Preferred Shares which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except only the right of the shareholders thereof to receive Ordinary Shares in exchange therefor and to receive payment in lieu of any fraction of a share otherwise issuable upon such conversion as provided in Section 3.5.2 above (Fractional Shares). Any Series A Preferred Shares so converted shall be retired and cancelled and may not be reissued as shares of such series, and the Company may thereafter take such appropriate action (without the need for shareholder action) as may be necessary to reduce the authorized number of Series A Preferred Shares accordingly.

Upon any such conversion, no adjustment to the applicable Conversion Price shall be made for any declared but unpaid dividends on the Series A Preferred Shares surrendered for conversion or on the Ordinary Shares delivered upon conversion

The Company shall not effect the conversion of any of the Series A Preferred Shares held by a shareholder of the Company, and such shareholder shall not have the right to convert any of the Series A Preferred Shares held by such holder pursuant to the terms and conditions of this Memorandum and Articles of Association, to the extent that after giving effect to such conversion, such shareholder together with the other Attribution Parties collectively would beneficially own in excess of 4.99% (or upon the election by a shareholder of Series A Preferred Shares prior to the issuance of any Preferred Shares, 9.99%) (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such shareholder of Series A Preferred Shares and the other Attribution Parties shall include the number of Ordinary Shares held by such shareholder of Series A Preferred Shares and all other Attribution Parties plus the number of Ordinary Shares issuable upon conversion of the Series A Preferred Shares with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares which would be issuable upon (A) conversion of the remaining, nonconverted Series A Preferred Shares beneficially owned by such shareholder of Series A Preferred Shares or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company beneficially owned by such shareholder of Series A Preferred Shares or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3.5.9. For purposes of this Section 3.5.9, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding Ordinary Shares a shareholder of Series A Preferred Shares may acquire upon the conversion of such Series A Preferred Shares without exceeding the Maximum Percentage, such shareholder may rely upon the number of outstanding Ordinary Shares as provided by the Company upon request of the shareholder of Series A Preferred Shares (the “Outstanding Share Number”). If the Company receives a notice of conversion from a shareholder of Series A Preferred Shares at a time when the actual number of outstanding Ordinary Shares is less than the Outstanding Share Number, the Company shall notify such shareholder of Preferred Shares in writing of the number of Ordinary Shares then outstanding and, to the extent that such Conversion Notice would otherwise cause the beneficial ownership of such shareholder of Series A Preferred Shares, as determined pursuant to this Section 3.5.9, to exceed the Maximum Percentage, such shareholder must notify the Company of a reduced number of Ordinary Shares to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of any shareholder of Series A Preferred Shares, the Company shall within one (1) business day confirm orally and in writing or by electronic mail to such shareholder of Preferred Shares the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including such Series A Preferred Shares, by such shareholder of Series A Preferred Shares and any other Attribution Party since the date as of which the Outstanding Share Number was reported. In the event that the issuance of Ordinary Shares to a shareholder of Series A Preferred Shares upon conversion of such Series A Preferred Shares results in such shareholder of Series A Preferred Shares and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding Ordinary Shares (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which such shareholder of Series A Preferred Shares and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such shareholder of Series A Preferred Shares shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, any shareholder of Series A Preferred Shares may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such shareholder of Series A Preferred Shares to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to such shareholder of Series A Preferred Shares and the other Attribution Parties and not to any other shareholder of Series A Preferred Shares. For purposes of clarity, the Ordinary Shares issuable to a shareholder of Series A Preferred Shares pursuant to the terms of this Memorandum and Articles of Association in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such shareholder of Series A Preferred Shares for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert such Series A Preferred Shares pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.5.9 to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 3.5.9 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor shareholder of such Series A Preferred Shares.

If the Company shall at any time or from time to time after the Series A Original Issue Date effect a division of the outstanding Ordinary Shares, the applicable Series A Conversion Price and Series Seed Conversion Price in effect immediately before that division shall be proportionately decreased so that the number of Ordinary Shares issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of Ordinary Shares outstanding. If the Company shall at any time or from time to time after the Series A Original Issue Date combine the outstanding shares of Ordinary Shares, the applicable Series A Conversion Price and Series Seed Conversion Price in effect immediately before the combination shall be proportionately increased so that the number of shares of Ordinary Shares issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of Ordinary Shares outstanding. Any adjustment under this Section 3.5.10 shall become effective at the close of business on the date the division or combination becomes effective.

In the event the Company at any time or from time to time after the Series A Original Issue Date shall make or issue, or fix a record date for the determination of shareholders of Ordinary Shares entitled to receive, a dividend or other distribution payable on the Ordinary Shares in additional Ordinary Shares, then and in each such event the applicable Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the applicable Conversion Price then in effect by a fraction:

Notwithstanding the foregoing (i) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the applicable Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the applicable Conversion Price shall be adjusted pursuant to this Section 3.5.11 as of the time of actual payment of such dividends or distributions; and (ii) that no such adjustment shall be made if the shareholders of Series A Preferred Shares simultaneously receive a dividend or other distribution of Ordinary Shares in a number equal to the number of Ordinary Shares as they would have received if all outstanding Series A Preferred Shares had been converted into Ordinary Shares on the date of such event.

In the event the Company at any time or from time to time after the Series A Original Issue Date shall make or issue, or fix a record date for the determination of shareholders of Ordinary Shares entitled to receive, a dividend or other distribution payable in shares of the Company (other than a distribution of Ordinary Shares in respect of outstanding Ordinary Shares) or in other property and the provisions of Section 3.5.11 do not apply to such dividend or distribution, then and in each such event the shareholders of Series A Preferred Shares shall receive, simultaneously with the distribution to the shareholders of Ordinary Shares, a dividend or other distribution of such shares or other property in an amount equal to the amount of such shares or other property as they would have received if all outstanding Series A Preferred Shares had been converted into Ordinary Shares on the date of such event.

Subject to the provisions of Section 3.4.2, if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Company in which the Ordinary Shares (but not the Series A Preferred Shares) is converted into or exchanged for securities, cash or other property, then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each Series A Preferred Share shall thereafter be convertible in lieu of the Ordinary Shares into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a shareholder of the number of Ordinary Shares of the Company issuable upon conversion of one Series A Preferred Shares immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the directors of the Company) shall be made in the application of the provisions in this Section 3.5 with respect to the rights and interests thereafter of the shareholders of the Series A Preferred Shares, to the end that the provisions set forth in this Section 3.5 shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Series A Preferred Shares.

Upon the occurrence of each adjustment or readjustment of the applicable Conversion Price pursuant to this Section 3.5, the Company at its expense shall, as promptly as reasonably practicable but in any event not later than ten (10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each shareholder of Series A Preferred Shares a share certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the Series A Preferred Shares is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, as promptly as reasonably practicable after the written request at any time of any shareholder of Series A Preferred Shares (but in any event not later than ten (10) days thereafter), furnish or cause to be furnished to such shareholder a share certificate setting forth (i) the applicable Conversion Price then in effect, and (ii) the number of Ordinary Shares and the amount, if any, of other securities, cash or property which then would be received upon the conversion of Series A Preferred Shares.

As long as any Series B Preferred Shares are outstanding, the Company shall not, without the written consent or affirmative vote of the holders of a majority of the then outstanding Series B Preferred Shares:

Any rights, powers, preferences and other terms of the Series B Preferred Shares in this Schedule, the Memorandum or the Articles, may be waived on behalf of all holders of Series B Preferred Shares by the written consent or affirmative vote of the holders of a majority of the then outstanding Series B Preferred Shares.

The Series B Preferred Shares shall not be entitled to vote on any Resolution of Shareholders, except as expressly provided to the contrary in the provisions of the Act or the Schedule or in relation to a variation of the rights of the Series B Preferred Shares pursuant to the Memorandum.

The holders of Series B Preferred Shares shall be entitled to receive, and the Company shall pay, dividends on Series B Preferred Shares equal (on an as-if-converted-to-Ordinary Shares basis) to and in the same form as dividends actually paid on Ordinary Shares when, as and if such dividends are paid on Ordinary Shares. No other dividends or other distributions shall be paid on Series B Preferred Shares.

Upon any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary (a “Liquidation”), the shareholders shall be entitled to receive out of the assets, whether capital or surplus, of the Company the same amount that a shareholder of Ordinary Shares would receive if the Series B Preferred Shares were fully converted (disregarding for such purposes any conversion limitations hereunder) to Ordinary Shares which amounts shall be paid pari passu with all shareholders of Ordinary Shares. The Company shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each holder of Series B Preferred Shares.

Each Series B Preferred Share shall be convertible, at any time and from time to time from and after the Series B Original Issue Date at the option of the shareholder thereof, into that number of Ordinary Shares (subject to the limitation set forth in Section 4.5.4 below) determined by dividing the Stated Value of such share of Series B Preferred Shares by the Series B Conversion Price. Shareholders shall effect conversions by providing the Company with a conversion notice in the form satisfactory to the Company (a “Notice of Conversion”). Each Notice of Conversion shall specify the number of Series B Preferred Shares to be converted, the number of Series B Preferred Shares owned prior to the conversion at issue, the number of Series B Preferred Shares 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 shareholder delivers by facsimile such Notice of Conversion to the Company (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 Company 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 Series B Preferred Shares, a shareholder shall not be required to surrender the certificate(s) representing the Series B Preferred Shares to the Company unless all of the Series B Preferred Shares represented thereby are so converted, in which case such shareholder shall deliver the certificate representing such Series B Preferred Shares promptly following the Conversion Date at issue. Series B Preferred Shares converted into Ordinary Shares or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.

The conversion price for the Series B Preferred Shares shall be the Series B Conversion Price.

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 Company shall deliver, or cause to be delivered, to the converting Shareholder (A) the number of Conversion Shares being acquired upon the conversion of the Series B Preferred Shares, and (B) a bank check in the amount of accrued and unpaid dividends, if any. The Company shall use its best efforts to deliver the Conversion Shares in book entry form. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice of Conversion.

If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the applicable holder of the Conversion Shares by the Share Delivery Date, the Shareholder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such Conversion Shares, to rescind such conversion, in which event the Company shall promptly return to the Shareholder any original Series B Preferred Share certificate delivered to the Company and the shareholder shall promptly return to the Company the Conversion Shares issued to such Shareholder pursuant to the rescinded Notice of Conversion.

The Company’s obligation to issue and deliver the Conversion Shares upon conversion of Series B Preferred Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Shareholder 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 shareholder or any other Person of any obligation to the Company or any violation or alleged violation of law by such shareholder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to such Shareholder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action that the Company may have against such shareholder. In the event a shareholder shall elect to convert any or all of the Stated Value of its Series B Preferred Shares, the Company may not refuse conversion based on any claim that such Shareholder or any one associated or affiliated with such shareholder has been engaged in any violation of law, or agreement or for any other reason, unless an injunction from a court, on notice to shareholder, restraining and/or enjoining conversion of all or part of the Series B Preferred Shares of such shareholder shall have been sought and obtained, and the Company posts a surety bond for the benefit of such shareholder in the amount of 150% of the Stated Value of Series B Preferred Shares 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 shareholder to the extent it obtains judgment. In the absence of such injunction, the Company shall issue Conversion Shares upon a properly noticed conversion. If the Company fails to deliver to a shareholder such Conversion Shares pursuant to Section 4.5.3(a) by the Share Delivery Date applicable to such conversion, the Company shall pay to such shareholder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Stated Value of Series B Preferred Shares 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 shareholder rescinds such conversion. Nothing herein shall limit a shareholder’s right to pursue actual damages for the Company’s failure to deliver Conversion Shares within the period specified herein and such Shareholder 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 Shareholder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

In addition to any other rights available to the shareholder, if the Company fails for any reason to deliver to a Shareholder the applicable Conversion Shares by the Share Delivery Date pursuant to Section 4.5.3(a), and if after such Share Delivery Date such shareholder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Shareholder’s brokerage firm otherwise purchases, Ordinary Shares to deliver in satisfaction of a sale by such shareholder of the Conversion Shares which such shareholder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall (A) pay in cash to such shareholder (in addition to any other remedies available to or elected by such shareholder) the amount, if any, by which (x) such shareholder’s total purchase price (including any brokerage commissions) for the Ordinary Shares so purchased exceeds (y) the product of (1) the aggregate number of Ordinary Shares that such shareholder 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 shareholder, either reissue (if surrendered) the Series B Preferred Shares equal to the number of Series B Preferred Shares submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such shareholder the number of Ordinary Shares that would have been issued if the Company had timely complied with its delivery requirements under Section 4.5.3(a). For example, if a shareholder purchases Ordinary Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of Series B Preferred Shares 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 Company shall be required to pay such shareholder $1,000. The shareholder shall provide the Company written notice indicating the amounts payable to such shareholder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a shareholder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of Series B Preferred Shares as required pursuant to the terms hereof.

The Company covenants that it will at all times reserve and keep available out of its authorized and unissued Ordinary Shares for the sole purpose of issuance upon conversion of the Series B Preferred Shares as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the shareholder (and the other shareholders of the Series B Preferred Shares), not less than such aggregate number of the Ordinary Shares as shall be issuable (taking into account the adjustments and restrictions of Section 4.5.6) upon the conversion of the then outstanding Series B Preferred Shares. The Company covenants that all Ordinary Shares that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Series B Preferred Shares. As to any fraction of a share which the shareholder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Series B Conversion Price or round up to the next whole share

The issuance of Conversion Shares on conversion of the Series B Preferred Shares shall be made without charge to any shareholder for any taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Company 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 shareholders of such Series B Preferred Shares and the Company 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 Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company 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.

The Company shall not effect any conversion of the Series B Preferred Shares, and a shareholder shall not have the right to convert any portion of the Series B Preferred Shares, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such shareholder (together with such shareholder’s Affiliates, and any Persons acting as a group together with such shareholder or any of such shareholder’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 Ordinary Shares beneficially owned by such shareholder and its Affiliates and Attribution Parties shall include the number of Ordinary Shares issuable upon conversion of the Series B Preferred Shares with respect to which such determination is being made, but shall exclude the number of Ordinary Shares which are issuable upon (i) conversion of the remaining, unconverted Stated Value of Series B Preferred Shares beneficially owned by such Shareholder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, the Series B Preferred Shares) beneficially owned by such shareholder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 4.5.6, 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 4.5.6 applies, the determination of whether the Series B Preferred Shares is convertible (in relation to other securities owned by such shareholder together with any Affiliates and Attribution Parties) and of how many Series B Preferred Shares are convertible shall be in the sole discretion of such shareholder, and the submission of a Notice of Conversion shall be deemed to be such shareholder’s determination of whether the Series B Preferred Shares may be converted (in relation to other securities owned by such shareholder together with any Affiliates and Attribution Parties) and how many of the Series B Preferred Shares are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each shareholder will be deemed to represent to the Company 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 Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4.5.6, in determining the number of outstanding Ordinary Shares, a shareholder may rely on the number of outstanding Ordinary Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the United States Securities and Exchange Commission, as the case may be, (ii) a more recent public announcement by the Company or (iii) a more recent written notice by the Company or the Transfer Agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request (which may be via email) of a shareholder, the Company shall within one Trading Day confirm orally and in writing to such shareholder the number of Ordinary Shares then outstanding. In any case, the number of outstanding of Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Series B Preferred Shares, by such shareholder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Shareholder prior to the issuance of any Series B Preferred Shares, 9.99%) of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares issuable upon conversion of Series B Preferred Shares held by the applicable Shareholder. A shareholder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4.5.6 applicable to its Series B Preferred Shares provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of the Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon conversion of the Series B Preferred Shares held by the shareholder and the provisions of this Section 4.5.6 shall continue to apply. Any such increase in the Beneficial Ownership Limitation will not be effective until the 61^st day after such notice is delivered to the Company and shall only apply to such shareholder and no other Shareholder. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4.5.6 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 shareholder of Series B Preferred Shares.

If the Company, at any time while the Series B Preferred Shares are outstanding: (i) pays a share dividend or issues bonus shares or otherwise makes a distribution or distributions payable in Ordinary Shares on Ordinary Shares or any other Ordinary Share Equivalents (which, for avoidance of doubt, shall not include any Ordinary Shares issued by the Company upon conversion of, or payment of a dividend on, the Series B Preferred Shares), (ii) subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of a reverse share split or combination) outstanding Ordinary Shares into a smaller number of shares, or (iv) issues, in the event of a reclassification of the Ordinary Shares, any shares of the Company, then the Series B Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number of Ordinary Shares outstanding immediately after such event. Any adjustment made pursuant to this Section 4.5.6 shall become effective immediately after the record date for the determination of shareholders 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.

In addition to any adjustments pursuant to paragraph 4.5.6(a), if at any time the Company grants, issues or sells any Ordinary Share Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record holders of any class of Ordinary Shares (the “Purchase Rights”), then each shareholder of Series B Preferred Shares will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Shareholder could have acquired if the shareholder had held the number of Ordinary Shares acquirable upon complete conversion of such shareholder’s Series B Preferred Shares (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record shareholders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Shareholder’s right to participate in any such Purchase Right would result in the Shareholder exceeding the Beneficial Ownership Limitation, then the shareholder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Shareholder until such time, if ever, as its right thereto would not result in the Shareholder exceeding the Beneficial Ownership Limitation)

During such time as any Series B Preferred Share is outstanding, if the Company declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to shareholders of Ordinary Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, shares or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Payment Distribution”), at any time after the issuance of the Series B Preferred Shares, then, in each such case, each holder of Series B Preferred Shares shall be entitled to participate in such Payment Distribution to the same extent that the shareholder would have participated therein if the shareholder had held the number of Ordinary Shares acquirable upon complete conversion of the Series B Preferred Shares (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 Payment Distribution, or, if no such record is taken, the date as of which the record shareholders of Ordinary Shares are to be determined for the participation in such Payment Distribution (provided, however, to the extent that the shareholder’s right to participate in any such Payment Distribution would result in the shareholder exceeding the Beneficial Ownership Limitation, then the shareholder shall not be entitled to participate in such Payment Distribution to such extent (or in the beneficial ownership of any Ordinary Shares as a result of such Payment Distribution to such extent) and the portion of such Payment Distribution shall be held in abeyance for the benefit of the shareholder until such time, if ever, as its right thereto would not result in the shareholder exceeding the Beneficial Ownership Limitation).

If, at any time while the Series B Preferred Shares is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which shareholders of Ordinary Shares 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 Ordinary Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a share 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 Ordinary Shares (not including any Ordinary Shares 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 the Series B Preferred Shares, the shareholder 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 4.5.4 above, Beneficial Ownership Limited and Issuance Limited, on the conversion of the Series B Preferred Shares), the number of Ordinary Shares of the successor or acquiring company or of the Company, if it is the surviving company, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which the Series B Preferred Shares is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 4.5.4 on the conversion of the Series B Preferred Shares). For purposes of any such conversion, the determination of the Series B Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Series B Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If shareholders of Ordinary Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Shareholder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of the Series B Preferred Shares following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Company or surviving entity in such Fundamental Transaction shall file a new Memorandum and Articles of Association with the same terms and conditions and issue to the shareholders new preferred shares consistent with the foregoing provisions and evidencing the shareholders’ right to convert such preferred share into Alternate Consideration. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Memorandum and Articles of Association and the other associated transaction documents in respect of the Series B Preferred Shares in accordance with the provisions of this Section 4.5.6 pursuant to written agreements in form and substance reasonably satisfactory to the shareholder and approved by the shareholder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the shareholder of the Series B Preferred Shares, deliver to the shareholder in exchange for the Series B Preferred Shares a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Series B Preferred Shares which is convertible for a corresponding number of shares of such Successor Entity (or its parent entity) equivalent to the shares of Ordinary Shares acquirable and receivable upon conversion of the Series B Preferred Shares (without regard to any limitations on the conversion of the Series B Preferred Shares) prior to such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares (but taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares, such number of shares and such conversion price being for the purpose of protecting the economic value of the Series B Preferred Shares immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the shareholder. 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 Memorandum and Articles of Association and the other associated transaction documents in respect of the Series B Preferred Shares 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 Memorandum and Articles of Association and the other associated transaction documents in respect of the Series B Preferred Shares with the same effect as if such Successor Entity had been named as the Company herein.

All calculations under this Section 4.5 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 4.5, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number of Ordinary Shares (excluding any treasury shares of the Company) issued and outstanding.

Whenever the Series B Conversion Price is adjusted pursuant to this Section 4, the Company shall promptly deliver to each holder of Series B Preferred Shares a notice setting forth the Series B Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company shall authorize the granting to all shareholders of the Ordinary Shares of rights or warrants to subscribe for or purchase any shares of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Ordinary Shares, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Ordinary Shares is converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of the Series B Preferred Shares, and shall cause to be delivered to each shareholder of Series A Preferred Shares at its last address as it shall appear upon the share register of the Company, 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 shareholders of the Ordinary Shares 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 Ordinary Shares of record shall be entitled to exchange their Ordinary Shares 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 Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the United States Securities and Exchange Commission pursuant to a Current Report on Form 8-K. The shareholder of Series B Preferred Shares shall remain entitled to convert the Conversion Amount of the Series B Preferred Shares (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.

TERRITORY OF THE BRITISH VIRGIN ISLANDS

BVI BUSINESS COMPANIES ACT (AS REVISED)

AMENDED AND RESTATED

ARTICLES OF ASSOCIATION

OF

FREIGHT TECHNOLOGIES, INC.

A Company Limited By Shares

The following sections of the Act shall not apply to the Company:

and, subject to compliance with the Act shall not, by reason of his office be accountable to the Company for any benefit which he derives from such transaction and no such transaction shall be liable to be avoided on the grounds of any such interest or benefit.

The Company shall have a Seal an impression of which shall be kept at the office of the registered agent of the Company. The Company may have more than one Seal and references herein to the Seal shall be references to every Seal which shall have been duly adopted by Resolution of Directors. The directors shall provide for the safe custody of the Seal and for an imprint thereof to be kept at the registered office. Except as otherwise expressly provided herein the Seal when affixed to any written instrument shall be witnessed and attested to by the signature of any one director or other person so authorised from time to time by Resolution of Directors. Such authorisation may be before or after the Seal is affixed, may be general or specific and may refer to any number of sealings. The directors may provide for a facsimile of the Seal and of the signature of any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been attested to as hereinbefore described.

Subject to the Act and the provisions of the Memorandum, the Company may by Resolution of Shareholders or by Resolution of Directors appoint an eligible individual as voluntary liquidator alone or jointly with one or more other voluntary liquidators.

The Company may by Resolution of Shareholders or by a resolution passed unanimously by all directors of the Company continue as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands in the manner provided under those laws.

Signed for Start Incorp Services Limited of Start Chambers, Wickham’s Cay II, P.O. Box 2221, Road Town, Tortola, British Virgin Islands for the purpose of incorporating a BVI Business Company under the laws of the British Virgin Islands on the 28th day of September 2015.

Incorporator