Exhibit
4.2


 





 



 


SURGEPAYS,
INC.


 


and


 


VSTOCK
TRANSFER, LLC, as


Warrant
Agent


 





 



  


Warrant
Agency Agreement


 


Dated
as of November 4, 2021


 




    	 



    	 



    

 


WARRANT
AGENCY AGREEMENT


 


WARRANT
AGENCY AGREEMENT, dated as of November 4, 2021 (“Agreement”), between SurgePays, Inc., a corporation organized under
the laws of the State of Nevada (the “Company”), and VStock Transfer, LLC, a corporation organized under the laws
of California (the “Warrant Agent”).


 


W
I T N E S S E T H


 


WHEREAS,
pursuant to a registered offering by the Company of 4,600,000 Units (the “Offering”), with each Unit consisting of
one (1) share of the Company’s common stock, par value $0.001 per share (the “Common Stock”) and one (1) warrant
(the “Warrants”) to purchase one (1) share of Common Stock (the “Warrant Shares”), the Warrants
shall have an exercise price of $4.73 per share (or 110% of the price of each Unit sold in the Offering); and


 


WHEREAS,
the Company granted an over-allotment option to purchase up to 15% of the aggregate number of Units sold, including warrants to purchase
an additional 690,000 shares of Common Stock (the “Over-Allotment Option”) to the Underwriters; and


 


WHEREAS,
upon the terms and subject to the conditions hereinafter set forth and pursuant to an effective registration statement on Form S-1, as
amended (File No. 333-233726) (the “Registration Statement”), and the terms and conditions of the Warrant Certificate,
the Company wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants (the “Holders,”
which term shall include a Holder’s transferees, successors and assigns and “Holder” shall include, if the Warrants
are held in “street name,” a Participant (as defined below) or a designee appointed by such Participant); and


 


WHEREAS,
the shares of Common Stock and Warrants to be issued in connection with the Offering shall be immediately separable and will be issued
separately, but will be purchased together in the Offering; and


 


WHEREAS,
the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agent’s capacity as
the Company’s transfer agent, the delivery of the Warrant Shares (as defined below).


 


NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:


 


Section
1. Certain Definitions. For purposes of this Agreement, all capitalized terms not herein defined shall have the meanings hereby
indicated:


 


(a)
“Affiliate” has the meaning ascribed to it in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).


 


(b)
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United
States or any day on which the Nasdaq Stock Market is authorized or required by law or other governmental action to close.


 


(c)
“Close of Business” on any given date means 5:00 p.m., New York City time, on such date; provided, however,
that if such date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.


 


(d)
“Person” means an individual, corporation, association, partnership, limited liability company, joint venture, trust,
unincorporated organization, government or political subdivision thereof or governmental agency or other entity.


 




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(e)
“Warrant Certificate” means a certificate in substantially the form attached as Exhibit 1 hereto, representing
such number of Warrant Shares as is indicated therein, provided that any reference to the delivery of a Warrant Certificate in this Agreement
shall include delivery of a Definitive Certificate or a Global Warrant (each as defined below).


 


All
other capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Warrant Certificate.


 


Section
2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with
the terms and conditions hereof, and the Warrant Agent hereby accepts such appointment.


 


Section
3. Global Warrants.


 


(a)
The Warrants shall be registered securities and shall be evidenced by a global warrant (the “Global Warrants”), in
the form of the Warrant Certificate, which shall be deposited with the Warrant Agent and registered in the name of Cede & Co., a
nominee of The Depository Trust Company (the “Depositary”), or as otherwise directed by the Depositary. Ownership
of beneficial interests in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained
by (i) the Depositary or its nominee for each Global Warrant or (ii) institutions that have accounts with the Depositary (such institution,
with respect to a Warrant in its account, a “Participant”).


 


(b)
If the Depositary subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the
Warrant Agent regarding other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no
longer necessary to have the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary
to deliver to the Warrant Agent for cancellation each Global Warrant, and the Company shall instruct the Warrant Agent to deliver to
each Holder a Warrant Certificate.


 


(c)
A Holder has the right to elect at any time or from time to time a Warrant Exchange (as defined below) pursuant to a Warrant Certificate
Request Notice (as defined below). Upon written notice by a Holder to the Company and the Warrant Agent for the exchange of some or all
of such Holder’s Global Warrants for a separate certificate in the form attached hereto as Exhibit 1 (such separate certificate,
a “Definitive Certificate”) evidencing the same number of Warrants, which request shall be in the form attached hereto
as Exhibit 2 (a “Warrant Certificate Request Notice” and the date of delivery of such Warrant Certificate Request
Notice by the Holder, the “Warrant Certificate Request Notice Date” and the surrender by the Holder to the Warrant
Agent of a number of Global Warrants for the same number of Warrants evidenced by a Warrant Certificate, a “Warrant Exchange”),
the Company shall promptly effect the Warrant Exchange and shall promptly direct the Warrant Agent to issue and deliver to the Holder
a Definitive Certificate for such number of Warrants in the name set forth in the Warrant Certificate Request Notice. Such Definitive
Certificate shall be dated the original issue date of the Warrants, shall be manually executed by an authorized signatory of the Company,
shall be in the form attached hereto as Exhibit 1 and shall be reasonably acceptable in all respects to such Holder. In connection
with a Warrant Exchange, the Company agrees to have the Warrant Agent deliver the Definitive Certificate to the Holder within ten (10)
Business Days of the later of the delivery of the Warrant Certificate Request Notice and the surrender by the Holder to the Warrant Agent
of a number of Global Warrants for the same number of Warrants evidenced by a Warrant Certificate pursuant to the delivery instructions
in the Warrant Certificate Request Notice (“Warrant Certificate Delivery Date”). If the Company fails for any reason
to have the Warrant Agent deliver to the Holder the Definitive Certificate subject to the Warrant Certificate Request Notice by the Warrant
Certificate Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000
of Warrant Shares evidenced by such Definitive Certificate (based on the VWAP (as defined in the Warrants) of the Common Stock on the
Warrant Certificate Request Notice Date), $10 per Business Day for each Business Day after such Warrant Certificate Delivery Date until
such Definitive Certificate is delivered or, prior to delivery of such Warrant Certificate, the Holder rescinds such Warrant Exchange.
The Company covenants and agrees that, upon the date of delivery of the Warrant Certificate Request Notice, the Holder shall be deemed
to be the holder of the Definitive Certificate and, notwithstanding anything to the contrary set forth herein, the Definitive Certificate
shall be deemed for all purposes to contain all of the terms and conditions of the Warrants evidenced by such Warrant Certificate and
the terms of this Agreement, other than Sections 3(c), 3(d) and 9 herein, shall not apply to the Warrants evidenced by the Definitive
Certificate. The Warrant Agent shall act as warrant agent with respect to any Definitive Certificate requested and issued pursuant to
this section. Notwithstanding anything to the contrary contained in this Agreement, in the event of inconsistency between any provision
in this Agreement and any provision in a Definitive Certificate, as it may from time to time be amended, the terms of such Definitive
Certificate shall control.


 




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(d)
A Holder of a Definitive Certificate (pursuant to a Warrant Exchange or otherwise) has the right to elect at any time or from time to
time a Global Warrants Exchange (as defined below) pursuant to a Global Warrants Request Notice (as defined below). Upon written notice
by a Holder to the Company and the Warrant Agent for the exchange of some or all of such Holder’s Warrants evidenced by a Definitive
Certificate for a beneficial interest in Global Warrants held in book-entry form through the Depositary evidencing the same number of
Warrants, which request shall be in the form attached hereto as Exhibit 3 (a “Global Warrants Request Notice”
and the date of delivery of such Global Warrants Request Notice by the Holder, the “Global Warrants Request Notice Date”
and the surrender upon delivery by the Holder of the Warrants evidenced by Definitive Certificates for the same number of Warrants evidenced
by a beneficial interest in Global Warrants held in book-entry form through the Depositary, a “Global Warrants Exchange”),
the Company shall promptly effect the Global Warrants Exchange and shall promptly direct the Warrant Agent to issue and deliver to the
Holder Global Warrants for such number of Warrants in the Global Warrants Request Notice, which beneficial interest in such Global Warrants
shall be delivered by the Depositary’s Deposit or Withdrawal at Custodian system to the Holder pursuant to the instructions in
the Global Warrants Request Notice. In connection with a Global Warrants Exchange, the Company shall direct the Warrant Agent to deliver
the beneficial interest in such Global Warrants to the Holder within ten (10) Business Days of the later of the delivery of the Global
Warrants Request Notice and the Definitive Certificate for a beneficial interest in Global Warrants held in book-entry form through the
Depositary evidencing the same number of Warrants pursuant to the delivery instructions in the Global Warrant Request Notice (“Global
Warrants Delivery Date”). If the Company fails for any reason to have the Warrant Agent deliver to the Holder Global Warrants
subject to the Global Warrants Request Notice by the Global Warrants Delivery Date, the Company shall pay to the Holder, in cash, as
liquidated damages and not as a penalty, for each $1,000 of Warrant Shares evidenced by such Global Warrants (based on the VWAP (as defined
in the Warrants) of the Common Stock on the Global Warrants Request Notice Date), $10 per Business Day for each Business Day after such
Global Warrants Delivery Date until such Global Warrants are delivered or, prior to delivery of such Global Warrants, the Holder rescinds
such Global Warrants Exchange. The Company covenants and agrees that, upon the date of delivery of the Global Warrants Request Notice,
the Holder shall be deemed to be the beneficial holder of such Global Warrants.


 


Section
4. Form of Warrant Certificates. The Warrant Certificate, together with the form of election to purchase Common Stock (“Notice
of Exercise”) and the form of assignment to be printed on the reverse thereof, shall be in the form of Exhibit 1 hereto.


 


Section
5. Registration of Definitive Certificates. The Warrant Agent will keep or cause to be kept at one of its offices, books for the
registration and transfer of any Definitive Certificates issued. Such Warrant Agent books shall show the names and addresses of the respective
Holders of the Definitive Certificates, the number of warrants evidenced on the face of each such Definitive Certificate and the date
of each such Definitive Certificate.


 




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Section
6. Transfer, Split Up, Combination and Exchange of Warrant Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
With respect to the Definitive Certificates, subject to the provisions of the Warrant Certificate and the last sentence of this first
paragraph of Section 6 and subject to applicable law, rules or regulations, or any “stop transfer” instructions the Company
may give to the Warrant Agent, at any time after the closing date of the Offering, and at or prior to the Close of Business on the Termination
Date (as such term is defined in the Warrant Certificate), any Definitive Certificate may be transferred, split up, combined or exchanged
for another Definitive Certificate, entitling the Holder to purchase a like number of shares of Common Stock as the Definitive Certificate
surrendered then entitled such Holder to purchase. Any Holder desiring to transfer, split up, combine or exchange any Definitive Certificate
shall make such request in writing delivered to the Warrant Agent, and shall surrender the Definitive Certificate to be transferred,
split up, combined or exchanged at the principal office of the Warrant Agent. Any requested transfer of Warrants, whether in book-entry
form or certificate form, shall be accompanied by reasonable evidence of authority of the party making such request that may be required
by the Warrant Agent, including, but not limited to, a medallion guarantee. Thereupon the Warrant Agent shall, subject to the last sentence
of this first paragraph of Section 6, countersign and deliver to the Person entitled thereto a Definitive Certificate, as so requested.
The Company may require payment from the Holder of a sum sufficient to cover any tax or governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of a Definitive Certificate. The Company shall compensate the Warrant Agent per
the fee schedule mutually agreed upon by the parties hereto and provided separately on the date hereof.


 


Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of a Warrant Certificate,
which evidence shall include an affidavit of loss, or in the case of mutilated certificates, the certificate or portion thereof remaining,
and, in case of loss, theft or destruction, of indemnity in customary form and amount including the posting of a bond by the Holder if
requested by the Warrant Agent, and satisfaction of any other reasonable requirements established by Section 8-405 of the Uniform Commercial
Code as in effect in the State of Delaware, and reimbursement to the Company and the Warrant Agent of all reasonable expenses incidental
thereto, and upon surrender to the Warrant Agent and cancellation of the Warrant Certificate if mutilated, the Company will make and
deliver a new Warrant Certificate of like tenor to the Warrant Agent for delivery to the Holder in lieu of the Warrant Certificate so
lost, stolen, destroyed or mutilated.


 


Section
7. Exercise of Warrants; Exercise Price; Termination Date.


 


(a)
The Warrants shall be exercisable commencing on the Initial Exercise Date. The Warrants shall cease to be exercisable and shall terminate
and become void as set forth in the Warrant Certificate. Subject to the foregoing and to Section 7(b) below, the Holder of a Warrant
may exercise the Warrant in whole or in part upon surrender of the Warrant Certificate, if required, with the executed Notice of Exercise
and payment of the Exercise Price, which may be made, at the option of the Holder, by wire transfer or by certified or official bank
check in United States dollars, to the Warrant Agent at the principal office of the Warrant Agent or to the office of one of its agents
as may be designated by the Warrant Agent from time to time. In the case of the Holder of a Global Warrant, the Holder shall deliver
the executed Notice of Exercise and the payment of the Exercise Price as described herein. Notwithstanding any other provision in this
Agreement, a holder whose interest in a Global Warrant is a beneficial interest in a Global Warrant held in book-entry form through the
Depositary (or another established clearing corporation performing similar functions), shall effect exercises by delivering to the Depositary
(or such other clearing corporation, as applicable) the appropriate instruction form for exercise, complying with the procedures to effect
exercise that are required by the Depositary (or such other clearing corporation, as applicable). The Company acknowledges that the bank
accounts maintained by the Warrant Agent in connection with the services provided under this Agreement will be in its name and that the
Warrant Agent may receive investment earnings in connection with the investment at Warrant Agent risk and for its benefit of funds held
in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price. No
ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of
any Notice of Exercise be required. The Company hereby acknowledges and agrees that, with respect to a holder whose interest in a Global
Warrant is a beneficial interest in a Global Warrant held in book-entry form through the Depositary (or another established clearing
corporation performing similar functions), upon delivery of irrevocable instructions to such holder’s Participant to exercise such
warrants, that solely for purposes of Regulation SHO that such holder shall be deemed to have exercised such warrants.


 




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(b)
Upon receipt of a Notice of Exercise for a Cashless Exercise the Company will promptly calculate and transmit to the Warrant Agent the
number of Warrant Shares issuable in connection with such Cashless Exercise and deliver a copy of the Notice of Exercise to the Warrant
Agent, which shall issue such number of Warrant Shares in connection with such Cashless Exercise.


 


(c)
Upon the exercise of the Warrant Certificate pursuant to the terms of Section 2 of the Warrant Certificate, the Warrant Agent shall cause
the Warrant Shares underlying such Warrant Certificate or Global Warrant to be delivered to or upon the order of the Holder of such Warrant
Certificate or Global Warrant, registered in such name or names as may be designated by such Holder, no later than the Warrant Share
Delivery Date (as such term is defined in the Warrant Certificate). If the Company is then a participant in the DWAC system of the Depositary
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) the Warrant is being exercised via Cashless Exercise, then the certificates for Warrant Shares shall be transmitted
by the Warrant Agent to the Holder by crediting the account of the Holder’s broker with the Depositary through its DWAC system.
For the avoidance of doubt, if the Company becomes obligated to pay any amounts to any Holders pursuant to Section 2(d)(i) or 2(d)(iv)
of the Warrant Certificate, such obligation shall be solely that of the Company and not that of the Warrant Agent. Notwithstanding anything
else to the contrary in this Agreement, except in the case of a Cashless Exercise, if any Holder fails to duly deliver payment to the
Warrant Agent of an amount equal to the aggregate Exercise Price of the Warrant Shares to be purchased upon exercise of such Holder’s
Warrant as set forth in Section 7(a) hereof by the Warrant Share Delivery Date, the Warrant Agent will not obligated to deliver such
Warrant Shares (via DWAC or otherwise) until following receipt of such payment, and the applicable Warrant Share Delivery Date shall
be deemed extended by one day for each day (or part thereof) until such payment is delivered to the Warrant Agent.


 


(d)
The Warrant Agent shall deposit all funds received by it in payment of the Exercise Price for all Warrants in the account of the Company
maintained with the Warrant Agent for such purpose (or to such other account as directed by the Company in writing) and shall advise
the Company via email at the end of each day on which notices of exercise are received or funds for the exercise of any Warrant are received
of the amount so deposited to its account.


 


Section
8. Cancellation and Destruction of Warrant Certificates. All Warrant Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or to any of its agents, will be delivered by the Company or its
agent to the Warrant Agent for cancellation, or, if surrendered to the Warrant Agent, shall be canceled by it, and no Warrant Certificate
shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to
the Warrant Agent for cancellation and retirement, and the Warrant Agent shall so cancel and retire, any other Warrant Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Warrant Agent shall deliver all canceled Warrant Certificates
to the Company, or shall, at the written request of the Company, destroy such canceled Warrant Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company, subject to any applicable law, rule or regulation requiring the Warrant Agent to
retain such canceled certificates. notwithstanding anything to the contrary set forth herein, all cancelled Warrant Certificates shall
be handled in accordance with the Warrant Agent’s regular policies and procedures.


 


Section
9. Certain Representations; Reservation and Availability of Shares of Common Stock or Cash.


 


(a)
This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery
hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance
with its terms, and the Warrants have been duly authorized, executed and issued by the Company and, assuming due authentication thereof
by the Warrant Agent pursuant hereto and payment therefor by the Holders as provided in the Registration Statement, constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits
hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).


 




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(b)
As of the date hereof, the authorized capital stock of the Company consists of (i) five hundred million (500,000,000) shares of common
stock, par value $0.001 per share, of which approximately 3,276,790 shares of Common Stock are issued and outstanding as of November
1, 2021, and 4,600,000 shares of Common Stock are reserved for issuance upon exercise of the Warrants, and (ii) one hundred million (100,000,000)
shares of preferred stock, par value $0.001 per share, of which there are thirteen million (13,000,000) shares of preferred stock issued
and outstanding. Except as disclosed in the Registration Statement, there are no other outstanding obligations, warrants, options or
other rights to subscribe for or purchase from the Company any class of capital stock of the Company.


 


(c)
The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common
Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of
Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants.


 


(d)
Reserved.


 


(e)
The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock
upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable
in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for
Common Stock in a name other than that of the Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue
or deliver any certificate for shares of Common Stock upon the exercise of any Warrants until any such tax or governmental charge shall
have been paid (any such tax or governmental charge being payable by the Holder of such Warrant Certificate at the time of surrender)
or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due.


 


Section
10. Common Stock Record Date. Each Person in whose name any certificate for shares of Common Stock is issued (or to whose broker’s
account is credited shares of Common Stock through the DWAC system) upon the exercise of Warrants shall for all purposes be deemed to
have become the holder of record for the Common Stock represented thereby on, and such certificate shall be dated, the date on which
submission of the Notice of Exercise was made, provided that the Warrant Certificate evidencing such Warrant is duly surrendered (but
only if required herein) and payment of the Exercise Price (and any applicable transfer taxes) is received on or prior to the Warrant
Share Delivery Date; provided, however, that if the date of submission of the Notice of Exercise is a date upon which the
Common Stock transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on,
and such certificate shall be dated, the next succeeding day on which the Common Stock transfer books of the Company are open.


 


Section
11. Adjustment of Exercise Price, Number of Shares of Common Stock or Number of the Company Warrants. The Exercise Price, the
number of shares covered by each Warrant and the number of Warrants outstanding are subject to adjustment from time to time as provided
in Section 3 of the Warrant Certificate. In the event that at any time, as a result of an adjustment made pursuant to Section 3 of the
Warrant Certificate, the Holder of any Warrant thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to the shares contained in Section 3 of the Warrant Certificate and the provisions of Sections 7, 11 and 12 of this Agreement with respect
to the shares of Common Stock shall apply on like terms to any such other shares. All Warrants originally issued by the Company subsequent
to any adjustment made to the Exercise Price pursuant to the Warrant Certificate shall evidence the right to purchase, at the adjusted
Exercise Price, the number of shares of Common Stock purchasable from time to time hereunder upon exercise of the Warrants, all subject
to further adjustment as provided herein.


 




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Section
12. Certification of Adjusted Exercise Price or Number of Shares of Common Stock. Whenever the Exercise Price or the number of
shares of Common Stock issuable upon the exercise of each Warrant is adjusted as provided in Section 11 or 13, the Company shall (a)
promptly prepare a certificate setting forth the Exercise Price of each Warrant as so adjusted, and a brief statement of the facts accounting
for such adjustment, (b) promptly file with the Warrant Agent and with each transfer agent for the Common Stock a copy of such certificate
and (c) instruct the Warrant Agent to send a brief summary thereof to each Holder of a Warrant Certificate.


 


Section
13. Fractional Shares of Common Stock.


 


(a)
The Company shall not issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. Whenever any
fractional Warrant would otherwise be required to be issued or distributed, the actual issuance or distribution shall reflect a rounding
of such fraction to the nearest whole Warrant (rounded down).


 


(b)
The Company shall not issue fractions of shares of Common Stock upon exercise of Warrants or distribute stock certificates which evidence
fractional shares of Common Stock. Whenever any fraction of a share of Common Stock would otherwise be required to be issued or distributed,
the actual issuance or distribution in respect thereof shall be made in accordance with Section 2(d)(v) of the Warrant Certificate.


 


Section
14. Conditions of the Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms
and conditions hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the Holders
from time to time of the Warrant Certificates shall be subject:


 


	 	(a)	Compensation
    and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation detailed on Exhibit 4 hereto
    for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
    reasonable counsel fees) incurred without gross negligence or willful misconduct finally adjudicated to have been directly caused
    by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
    the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, or willful
    misconduct on the part of the Warrant Agent, finally adjudicated to have been directly caused by Warrant Agent hereunder, including
    the reasonable costs and expenses of defending against any claim of such liability. The Warrant Agent shall be under no obligation
    to institute or defend any action, suit, or legal proceeding in connection herewith or to take any other action likely to involve
    the Warrant Agent in expense, unless first indemnified to the Warrant Agent’s satisfaction. The indemnities provided by this
    paragraph shall survive the resignation or discharge of the Warrant Agent or the termination of this Agreement. Anything in this
    Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable under or in connection with the Agreement
    for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited
    to lost profits, whether or not foreseeable, even if the Warrant Agent has been advised of the possibility thereof and regardless
    of the form of action in which such damages are sought, and the Warrant Agent’s aggregate liability to the Company, or any
    of the Company’s representatives or agents, under this Section 14(a) or under any other term or provision of this Agreement,
    whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one (1) year’s
    fees received by the Warrant Agent as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed
    to the Warrant Agent by the Company hereunder.
	 	 	 
	 	(b)	Agent
    for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is
    acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the
    Holders of Warrant Certificates or beneficial owners of Warrants.


 




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	 	(c)	Counsel.
    The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice
    of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it
    hereunder in good faith and in accordance with the advice of such counsel.
	 	 	 
	 	(d)	Documents.
    The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
    upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
    believed by it to be genuine and to have been presented or signed by the proper parties.
	 	 	 
	 	(e)	Certain
    Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
    in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
    by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on,
    or as depositary, trustee or agent for, any committee or body of Holders of Warrant Securities or other obligations of the Company
    as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
    Agent from acting as trustee under any indenture to which the Company is a party.
	 	 	 
	 	(f)	No
    Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any
    monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
	 	 	 
	 	(g)	No
    Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or the Warrant
    Certificates (except as to the Warrant Agent’s countersignature thereon).
	 	 	 
	 	(h)	No
    Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
    or in the Warrant Certificate (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by
    the Company.
	 	 	 
	 	(i)	No
    Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
    specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against
    the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it
    in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The
    Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates
    authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company
    of the proceeds of the Warrant Certificate. The Warrant Agent shall have no duty or responsibility in case of any default by the
    Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt
    of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality
    of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law.


 


Section
15. Purchase or Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent or any successor
Warrant Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which
the Warrant Agent or any successor Warrant Agent shall be party, or any corporation succeeding to the corporate trust business of the
Warrant Agent or any successor Warrant Agent, shall be the successor to the Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible
for appointment as a successor Warrant Agent under the provisions of Section 17. In case at the time such successor Warrant Agent shall
succeed to the agency created by this Agreement any of the Warrant Certificates shall have been countersigned but not delivered, any
such successor Warrant Agent may adopt the countersignature of the predecessor Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor Warrant Agent
may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.


 




    	9



    	 



    

 


In
case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its prior name and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.


 


Section
16. Duties of Warrant Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company, by its acceptance hereof, shall be bound:


 


(a)
The Warrant Agent may consult with legal counsel reasonably acceptable to the Company (who may be legal counsel for the Company), and
the opinion of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.


 


(b)
Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed
by the Chief Executive Officer, Chief Financial Officer or Vice President of the Company; and such certificate shall be full authentication
to the Warrant Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such
certificate.


 


(c)
Subject to the limitation set forth in Section 14, the Warrant Agent shall be liable hereunder only for its own gross negligence or willful
misconduct, or for a breach by it of this Agreement.


 


(d)
The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in
the Warrant Certificate (except its countersignature thereof) by the Company or be required to verify the same, but all such statements
and recitals are and shall be deemed to have been made by the Company only.


 


(e)
The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate; nor shall it be responsible for the adjustment of the Exercise Price or the making of any change
in the number of shares of Common Stock required under the provisions of Section 11 or 13 or responsible for the manner, method or amount
of any such change or the ascertaining of the existence of facts that would require any such adjustment or change (except with respect
to the exercise of Warrants evidenced by the Warrant Certificates after actual notice of any adjustment of the Exercise Price); nor shall
it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common
Stock to be issued pursuant to this Agreement or any Warrant Certificate or as to whether any shares of Common Stock will, when issued,
be duly authorized, validly issued, fully paid and nonassessable.


 


(f)
Each party hereto agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may reasonably be required by the other party hereto for the
carrying out or performing by any party of the provisions of this Agreement.


 




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(g)
The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief
Executive Officer, Chief Financial Officer or Vice President of the Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable and shall be indemnified and held harmless for any action taken or suffered
to be taken by it in good faith in accordance with instructions of any such officer, provided Warrant Agent carries out such instructions
without gross negligence or willful misconduct.


 


(h)
The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.


 


(i)
The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorney or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment thereof.


 


Section
17. Change of Warrant Agent. The Warrant Agent may resign and be discharged from its duties under this Agreement upon 30 days’
notice in writing sent to the Company and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates.
The Company may remove the Warrant Agent or any successor Warrant Agent upon 30 days’ notice in writing, sent to the Warrant Agent
or successor Warrant Agent, as the case may be, and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates.
If the Warrant Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor
to the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after such removal or after it has
been notified in writing of such resignation or incapacity by the resigning or incapacitated Warrant Agent or by the Holder of a Warrant
Certificate (who shall, with such notice, submit his Warrant Certificate for inspection by the Company), then the Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment of a new Warrant Agent, provided that, for purposes
of this Agreement, the Company shall be deemed to be the Warrant Agent until a new warrant agent is appointed. Any successor Warrant
Agent, whether appointed by the Company or by such a court, shall be a corporation organized and doing business under the laws of the
United States or of a state thereof, in good standing, which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and which has at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $50,000,000. After appointment, the successor Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the predecessor Warrant
Agent shall deliver and transfer to the successor Warrant Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor Warrant Agent and each transfer agent of the Common Stock, and
mail a notice thereof in writing to the Holders of the Warrant Certificates. However, failure to give any notice provided for in this
Section 17, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.


 


Section
18. Issuance of New Warrant Certificates. Notwithstanding any of the provisions of this Agreement or of the Warrants to the contrary,
the Company may, at its option, issue new Warrant Certificates evidencing Warrants in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Exercise Price per share and the number or kind or class of shares of stock or other securities
or property purchasable under the several Warrant Certificates made in accordance with the provisions of this Agreement.


 




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Section
19. Notices. Notices or demands authorized by this Agreement to be given or made (i) by the Warrant Agent or by the Holder of
any Warrant Certificate to or on the Company, (ii) subject to the provisions of Section 17, by the Company or by the Holder of any Warrant
Certificate to or on the Warrant Agent or (iii) by the Company or the Warrant Agent to the Holder of any Warrant Certificate shall be
deemed given (a) on the date delivered, if delivered personally, (b) on the first Business Day following the deposit thereof with Federal
Express or another recognized overnight courier, if sent by Federal Express or another recognized overnight courier, (c) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed by registered or certified mail (return receipt requested),
and (d) the date of transmission, if such notice or communication is delivered via facsimile or email attachment at or prior to 5:30
p.m. (New York City time) on a Business Day and (e) the next Business Day after the date of transmission, if such notice or communication
is delivered via facsimile or email attachment on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any
Business Day, in each case to the parties at the following addresses (or at such other address for a party as shall be specified by like
notice):


 


	 	(a)	If
    to the Company, to:
	 	 	 
	 	 	SurgePays,
    Inc.
	 	 	3124
    Brother Blvd., Suite 410
	 	 	Bartlett,
    TN 38133
	 	 	Attention:
    Chief Executive Officer
	 	 	 
	 	(b)	If
    to the Warrant Agent, to:
	 	 	 
	 	 	VStock
    Transfer, LLC
	 	 	18
    Lafayette Place
	 	 	Woodmere,
    NY 11598
	 	 	Attention:
    Yoel Goldfeder


 


For
any notice delivered by email to be deemed given or made, such notice must be followed by notice sent by overnight courier service to
be delivered on the next business day following such email, unless the recipient of such email has acknowledged via return email receipt
of such email.


 


(c)
If to the Holder of any Warrant Certificate to the address of such Holder as shown on the registry books of the Company. Any notice required
to be delivered by the Company to the Holder of any Warrant may be given by the Warrant Agent on behalf of the Company. Notwithstanding
any other provision of this Agreement, where this Agreement provides for notice of any event to a Holder of any Warrant, such notice
shall be sufficiently given if given to the Depositary (or its designee) pursuant to the procedures of the Depositary or its designee.


 


Section
20. Supplements and Amendments.


 


(a)
The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any Holders of Global
Warrants in order to add to the covenants and agreements of the Company for the benefit of the Holders of the Global Warrants or to surrender
any rights or power reserved to or conferred upon the Company in this Agreement, provided that such addition or surrender shall not adversely
affect the interests of the Holders of the Global Warrants or Warrant Certificates in any material respect.


 


(b)
In addition to the foregoing, with the consent of Holders of Warrants entitled, upon exercise thereof, to receive not less than a majority
of the shares of Common Stock issuable thereunder, the Company and the Warrant Agent may modify this Agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Warrant Agreement or modifying in any manner
the rights of the Holders of the Global Warrants; provided, however, that no modification of the terms (including but not
limited to the adjustments described in Section 11) upon which the Warrants are exercisable or the rights of holders of Warrants to receive
liquidated damages or other payments in cash from the Company or reducing the percentage required for consent to modification of this
Agreement may be made without the consent of the Holder of each outstanding Warrant Certificate affected thereby; provided further,
however, that no amendment hereunder shall affect any terms of any Warrant Certificate issued in a Warrant Exchange. As a condition
precedent to the Warrant Agent’s execution of any amendment, the Company shall deliver to the Warrant Agent a certificate from
a duly authorized officer of the Company that states that the proposed amendment complies with the terms of this Section 20.


 




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Section
21. Successors. All covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns hereunder.


 


Section
22. Benefits of this Agreement. Nothing in this Agreement shall be construed to give any Person other than the Company, the Holders
of Warrant Certificates and the Warrant Agent any legal or equitable right, remedy or claim under this Agreement. This Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the Holders of the Warrant Certificates.


 


Section
23. Governing Law. This Agreement and each Warrant Certificate and Global Warrant issued hereunder shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof.


 


Section
24. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.


 


Section
25. Captions. The captions of the sections of this Agreement have been inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.


 


Section
26. Information. The Company agrees to promptly provide to the Holders of the Warrants any information it provides to the holders
of the Common Stock, except to the extent any such information is publicly available on the EDGAR system (or any successor thereof) of
the Securities and Exchange Commission.


 








[signature
page follows]


 






    	13



    	 



    

 



IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.


 


	 	SURGEPAYS,
    INC.
	 	 	 
	 	By:
    	             
	 	Name:	 
	 	Title:	 
	 	 	 
	 	VSTOCK
    TRANSFER, LLC
	 	 	 
	 	By:
    	 
	 	Name:	 
	 	Title:	 


 




    	 



    	 



    

  


Exhibit
1


 


Form
of Warrant Certificate


 





COMMON
STOCK PURCHASE WARRANT


 


SURGEPAYS,
INC.


 


	Warrant
    Shares: 5,290,000	 	Initial
    Exercise Date: November 4, 2021


 


THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York
City time) on November 4, 2024 (the “Termination Date”) but not thereafter, to subscribe for and purchase from SurgePays,
Inc., a company incorporated under the laws of the State of Nevada (the “Company”), up to 5,290,000 shares (as subject
to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under
this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained
in the form of a security held in book-entry form and the Depository Trust Company or its nominee (“DTC”) shall initially
be the sole registered holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant
to the terms of the Warrant Agency Agreement, in which case this sentence shall not apply.


 


Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:


 


“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.


 


“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.


 


“Board
of Directors” means the board of directors of the Company.


 


“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.


 




    	1



    	 



    

 


“Commission”
means the United States Securities and Exchange Commission.


 


“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.


 


“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.


 


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


 


“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


“Registration
Statement” means the Company’s registration statement on Form S-1, as amended (File No. 333-233726).


 


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


 


“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).


 


“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, NY 11598 and a facsimile number of 646-536-3179, and any successor transfer agent of the Company.


 


“Underwriting
Agreement” means the underwriting agreement, dated as of November 1, 2021 among the Company and Maxim Group LLC as representative
of the underwriters named therein, as amended, modified or supplemented from time to time in accordance with its terms.


 


“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.


 




    	2



    	 



    

 


“Warrant
Agency Agreement” means that certain warrant agency agreement, dated on or about the Initial Exercise Date, between the Company
and the Warrant Agent.


 


“Warrant
Agent” means the Transfer Agent and any successor warrant agent of the Company.


 


“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.


 


Section
2. Exercise.


 


a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile
copy (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in
Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final
Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number
of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder
in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the
number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number
of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.


 


Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Definitive Warrant pursuant to the terms of the Warrant Agency
Agreement, in which case this sentence shall not apply.


 


b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $4.73, subject to adjustment hereunder
(the “Exercise Price”).


 




    	3



    	 



    

 


c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing ((A-B)(X)) by (A), where:


 


 


	 	(A)
=	as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not
a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular
trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading
Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of
the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading
hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise
if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section
2(a) hereof after the close of “regular trading hours” on such Trading Day;
	 	 	 
	 	(B)
    = 	the
    Exercise Price of this Warrant, as adjusted hereunder; and
	 	 	 
	 	(X)
    = 	the
    number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
    exercise were by means of a cash exercise rather than a cashless exercise.


 


If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).


 


Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).


 




    	4



    	 



    

 


d)
Mechanics of Exercise.


 


i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a
certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares
to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date
that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day
after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after
such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.


 


ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.


 


iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.


 


iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.


 




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v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.


 


vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.


 


vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.


 




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e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.


 




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Section
3. Certain Adjustments.


 


a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.


 


b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of
Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).


 


c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).


 




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d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly
or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of
its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock,
(iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock
or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding
shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated
or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each
a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right
to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental
Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number
of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional
consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of
the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without
regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the
Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance
with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and
approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, 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 which is exercisable for a corresponding number of shares of capital stock of such Successor Entity
(or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the
exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant
to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise
price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction,
the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant 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 with the same effect as if such Successor
Entity had been named as the Company herein.


 




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e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.


 


f)
Notice to Holder.


 


i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.


 


ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company 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 Common Stock is converted into other securities,
cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile
number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common
Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on
which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange;
provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period
commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly
set forth herein.


 




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Section
4. Transfer of Warrant.


 


a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.


 


b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.


 


c)
Warrant Register. The Warrant Agent (or, in the event a Holder elects to receive a Definitive Certificate (as defined in the Warrant
Agency Agreement), the Company) shall register this Warrant, upon records to be maintained by the Warrant Agent (or, in the event a Holder
elects to receive a Definitive Certificate, the Company) for that purpose (the “Warrant Register”), in the name of
the record Holder hereof from time to time. The Company and the Warrant Agent may deem and treat the registered Holder of this Warrant
as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent
actual notice to the contrary.


 


Section
5. Miscellaneous.


 


a)
No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights
as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section
3.


 




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b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (including the posting of a bond by
the Holder if requested by the Warrant Agent), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.


 


c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.


 


d)
Authorized Shares.


 


The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).


 


Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.


 


Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.


 




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e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.


 


f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.


 


g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.


 


h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, or e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 3124 Brother Blvd., Suite 410, Bartlett, TN 38133, Attention: Chief Executive Officer,
email address:, or such other facsimile number, email address or address as the Company may specify for such purposes
by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be
in writing and delivered personally, by facsimile or e-mail, or sent by a nationally recognized overnight courier service addressed to
each Holder at the facsimile number, e-mail address or address of such Holder appearing on the books of the Company. Any notice or other
communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile number or via e-mail at the e-mail address set forth in this Section prior
to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or via e-mail at the e-mail address set forth in this Section on a day that is not
a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required
to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the
Company or any subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form
8-K.


 




    	13



    	 



    

 


i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.


 


j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.


 


k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.


 


l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.


 


m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.


 


n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.


 


o)
Warrant Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued
subject to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant
Agency Agreement, the provisions of this Warrant shall govern and be controlling.


 


[signature
page follows]


  




    	14



    	 



    

 


IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.


 


	 	SURGEPAYS, INC. 
	 	 	 
	 	By:	             
	 	Name:	 
	 	Title:	 


  




    	 



    	 



    

 


NOTICE
OF EXERCISE


 


To:
SURGEPAYS, INC.


 


(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.


 


(2)
Payment shall take the form of (check applicable box):


 


[  ] in lawful money of the United States; or


 


[  ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).


 


(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:


 


_______________________________


 


The
Warrant Shares shall be delivered to the following DWAC Account Number:


 


_______________________________


 


_______________________________


 


_______________________________


 


[SIGNATURE
OF HOLDER]


 


Name
of Investing Entity: _______________________________________________________________________


Signature
of Authorized Signatory of Investing Entity: _________________________________________________


Name
of Authorized Signatory: ___________________________________________________________________


Title
of Authorized Signatory: ____________________________________________________________________


Date:
_______________________________________________________________________________________


 




    	 



    	 



    

 


ASSIGNMENT
FORM


 


(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)


 


FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to


 


	Name:	 
	 	(Please
    Print)
	 	 
	Address:	 
	 	(Please
    Print)
	 	 
	Phone
    Number: 	 
	 	 
	Email
    Address:	 



 


	Dated:
    _______________ __, ______



 


	Holder’s
    Signature:	 	 
	 	 	 
	Holder’s
    Address:	 	 


 


MEDALLION
GUARANTEE TO BE INSERTED BELOW


 




    	 



    	 



    

 


Exhibit
2


Form
of Warrant Certificate Request Notice


 


WARRANT
CERTIFICATE REQUEST NOTICE


 


To:
VSTOCK TRANSFER, LLC, as Warrant Agent for SURGEPAYS, INC. (the “Company”)


 


The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Global Warrants issued by the Company
hereby elects to receive a Warrant Certificate evidencing the Warrants held by the Holder as specified below:


 


	1.	Name
    of Holder of Warrants in form of Global Warrants: _____________________________
	 	 
	2.	Name
    of Holder in Warrant Certificate (if different from name of Holder of Warrants in form of Global Warrants): ________________________________
	 	 
	3.	Number
    of Warrants in name of Holder in form of Global Warrants: ___________________
	 	 
	4.	Number
    of Warrants for which Warrant Certificate shall be issued: __________________
	 	 
	5.	Number
    of Warrants in name of Holder in form of Global Warrants after issuance of Warrant Certificate, if any: ___________
	 	 
	6.	Warrant
    Certificate shall be delivered to the following address:


 


______________________________


 


______________________________


 


______________________________


 


______________________________


 


The
undersigned hereby acknowledges and agrees that, in connection with this Warrant Exchange and the issuance of the Warrant Certificate,
the Holder is deemed to have surrendered the number of Warrants in form of Global Warrants in the name of the Holder equal to the number
of Warrants evidenced by the Warrant Certificate.


 


[SIGNATURE
OF HOLDER]


 


Name
of Investing Entity: ____________________________________________________


 


Signature
of Authorized Signatory of Investing Entity: ______________________________


 


Name
of Authorized Signatory: ________________________________________________


 


Title
of Authorized Signatory: _________________________________________________


 


Date:
_______________________________________________________________


 




    	 



    	 



    

 


Exhibit
3


Form
of Global Warrant Request Notice


 


GLOBAL
WARRANT REQUEST NOTICE


 


To:
VSTOCK TRANSFER, LLC, as Warrant Agent for SURGEPAYS, INC. (the “Company”)


 


The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Warrants Certificates issued by the
Company hereby elects to receive a Global Warrant evidencing the Warrants held by the Holder as specified below:


 


	1.	Name
    of Holder of Warrants in form of Warrant Certificates: _____________________________
	 	 
	2.	Name
    of Holder in Global Warrant (if different from name of Holder of Warrants in form of Warrant Certificates): ________________________________
	 	 
	3.	Number
    of Warrants in name of Holder in form of Warrant Certificates: ___________________
	 	 
	4.	Number
    of Warrants for which Global Warrant shall be issued: __________________
	 	 
	5.	Number
    of Warrants in name of Holder in form of Warrant Certificates after issuance of Global Warrant, if any: ___________
	 	 
	6.	Global
    Warrant shall be delivered to the following address:


 


______________________________


 


______________________________


 


______________________________


 


______________________________


 


The
undersigned hereby acknowledges and agrees that, in connection with this Global Warrant Exchange and the issuance of the Global Warrant,
the Holder is deemed to have surrendered the number of Warrants in form of Warrant Certificates in the name of the Holder equal to the
number of Warrants evidenced by the Global Warrant.


 


[SIGNATURE
OF HOLDER]


 


Name
of Investing Entity: ____________________________________________________


 


Signature
of Authorized Signatory of Investing Entity: ______________________________


 


Name
of Authorized Signatory: ________________________________________________


 


Title
of Authorized Signatory: _________________________________________________


 


Date:
_______________________________________________________________


 




    	 



    	 



    

 


Exhibit
4


 


Warrant
Agent Fee Schedule