Exhibit
4.10 


 


Spherix
incorporated


 


FORM OF CERTIFICATE OF DESIGNATION OF
PREFERENCES, 


RIGHTS AND LIMITATIONS


OF


SERIES K
CONVERTIBLE PREFERRED STOCK


 


PURSUANT
TO SECTION 151 OF THE 


delaware
GENERAL CORPORATION LAW


 


The undersigned, Anthony
Hayes, does hereby certify that:


 


1. He is the Chief
Executive Officer Spherix Incorporated, a Delaware corporation (the "Corporation").


 


2. The Corporation
is authorized to issue 50,000,000 shares of preferred stock.


 


3. The following resolutions
were duly adopted by the board of directors of the Corporation (the "Board of Directors") as required by Section
151(g) of the Delaware General Corporation Law:


 


WHEREAS, the certificate
of incorporation of the Corporation, as amended and restated, provides for a class of its authorized stock known as preferred stock,
consisting of 50,000,000 shares, $0.0001 par value per share, issuable from time to time in one or more series;


 


WHEREAS, the Board
of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption
and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and
the designation thereof, of any of them; and


 


WHEREAS, it is the
desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions, terms and
other matters relating to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Purchase
Agreement (as defined herein), up to ___________ shares of the preferred stock which the Corporation has the authority to issue,
as follows:


 


NOW, THEREFORE, BE
IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange
of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters
relating to such series of preferred stock as follows:


 


TERMS OF PREFERRED STOCK


 


Section 1. Designation,
Amount and Par Value. The series of preferred stock shall be designated as its Series K Convertible Preferred Stock (the "Preferred
Stock") and the number of shares so designated shall consist of up to _________ shares (which shall not be subject to
increase without the written consent of all of the holders of the Preferred Stock (each, a "Holder" and collectively,
the "Holders")). Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value
equal to $1,000 (the "Stated Value").


 




    	1



     


    

 


Section 2. Definitions.
For the purposes hereof, the following terms shall have the following meanings:


 


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


 


"Alternate
Consideration" shall have the meaning set forth in Section 7(e).


 


"Beneficial
Ownership Limitation" shall have the meaning set forth in Section 6(d).


 


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


 


"Buy-In"
shall have the meaning set forth in Section 6(c)(iv).


 


"Closing"
means the closing of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement.


 


"Closing
Date" means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto and all conditions precedent to (i) each Holder’s obligations to pay the Subscription Amount and (ii) the
Corporation’s obligations to deliver the Securities have been satisfied or waived.


 


"Commission"
means the United States Securities and Exchange Commission.


 


"Common
Stock" means the Corporation’s common stock, par value $0.0001 per share, and stock of any other class of securities
into which such securities may hereafter be reclassified or changed.


 


"Common
Stock Equivalents" means any securities of the Corporation or the Subsidiaries which would entitle the holder thereof
to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock.


 


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


 


"Conversion
Date" shall have the meaning set forth in Section 6(a).


 


"Conversion
Price" shall have the meaning set forth in Section 6(b).


 




    	2



     


    

 


"Conversion
Shares" means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance
with the terms hereof.


 


"Escrow
Agent" means Signature Bank, a New York State chartered bank and having an office at 261 Madison Avenue, New York, New
York 10016.


 


"Escrow
Agreement" means the escrow agreement entered into on or prior to the date of the Purchase Agreement, by and among the
Corporation, the Placement Agent and the Escrow Agent pursuant to which the Holder shall deposit Subscription Amounts with the
Escrow Agent to be applied to the transactions contemplated hereunder.


 


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


 


"Fundamental
Transaction" shall have the meaning set forth in Section 7(e).


 


"GAAP"
means United States generally accepted accounting principles.


 


"Holder"
shall have the meaning given such term in Section 1.


 


"Liquidation"
shall have the meaning set forth in Section 5.


 


"New
York Courts" shall have the meaning set forth in Section 8(d).


 


"Notice
of Conversion" shall have the meaning set forth in Section 6(a).


 


"Original
Issue Date" means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers
of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred
Stock.


 


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


 


"Preferred
Stock" shall have the meaning set forth in Section 1.


 


"Purchase
Agreement" means the Securities Purchase Agreement dated as of November __, 2015 among the Corporation and the other parties
thereto including the original Holders, as amended, modified or supplemented from time to time in accordance with its terms.


 


"Securities"
means the Shares, the Warrants and, if any, the Preferred Stock, issued and sold by the Corporation on the Closing Date.


 


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


 




    	3



     


    

 


"Series
A Warrants" means, collectively, the Series A Common Stock purchase warrants delivered to the Holder at the Closing in
accordance with Section 2.2(a) of the Purchase Agreement, which Warrants shall be exercisable immediately and have a term of exercise
equal to six (6) months, in the form of Exhibit B-1 attached to the Purchase Agreement.


 


"Series
B Warrants" means, collectively, the Series B Common Stock purchase warrants delivered to the Holder at the Closing in
accordance with Section 2.2(a) of the Purchase Agreement, which Warrants shall be exercisable immediately and have a term of exercise
equal to five (5) years, in the form of Exhibit B-2 attached to the Purchase Agreement


 


"Shares"
means the shares of Common Stock issued or issuable to each purchaser party to the Purchase Agreement on the Closing Date.


 


"Share
Delivery Date" shall have the meaning set forth in Section 6(c).


 


"Stated
Value" shall have the meaning set forth in Section 1.


 


"Subscription
Amount" shall mean, as to each Holder, the aggregate amount to be paid for the Preferred Stock purchased pursuant to the
Purchase Agreement as specified below such Holder’s name on the signature page of the Purchase Agreement and next to the
heading "Subscription Amount" in United States dollars and in immediately available funds.


 


"Subsidiary"
means any subsidiary of the Corporation as set forth on Schedule 3.1(a) of the Purchase Agreement and shall, where applicable,
also include any direct or indirect subsidiary of the Corporation formed or acquired after the date of the Purchase Agreement.


 


"Successor
Entity" shall have the meaning set forth in Section 7(e).


 


"Trading
Day" means a day on which the principal Trading Market is open for business.


 


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


 


"Transaction
Documents" means this Certificate of Designation, the Purchase Agreement, the Warrants, the Escrow Agreement, all exhibits
and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated
pursuant to the Purchase Agreement.


 


"Transfer
Agent” means Equity Stock Transfer, the current transfer agent of the Company, with a mailing address of 110 Greene Street,
New York, NY 10012 and a facsimile number of 347-584-3644, and any successor transfer agent of the Company.


 




    	4



     


    

 


"Underlying
Shares" means the shares of Common Stock issued and issuable upon conversion of the Preferred Stock and upon exercise
of the Warrants.


 


"Warrants"
means, collectively, the Series A Warrants and the Series B Warrants.


 


"Warrant
Shares" means the shares of Common Stock issuable upon exercise of the Warrants.


 


Section
3. Dividends. Except for stock dividends or distributions
for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to receive, and the Corporation shall pay,
dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis) to and in the same form as dividends
actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends
shall be paid on shares of Preferred Stock.


 


Section 4. Voting
Rights. Except as otherwise provided herein or as otherwise required by law, the Preferred Stock shall have no voting rights.
However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the
Holders of a majority of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences
or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) amend its certificate of incorporation
or other charter documents in any manner that adversely affects any rights of the Holders, or (c) increase the number of authorized
shares of Series K Preferred Stock.


 


Section 5. Liquidation.
Subject to the liquidation rights, terms and preferences of the currently outstanding shares of Series H Preferred Stock of the
Corporation, upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a "Liquidation"),
the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that
a holder of Common Stock would receive if the Preferred Stock were fully converted (disregarding for such purposes any conversion
limitations hereunder) to Common Stock which amounts shall be paid pari passu with all holders of Common Stock. The
Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein,
to each Holder.


 




    	5



     


    

 


Section 6. Conversion.


 


(a)          Conversions
at Option of Holder. Each share of Preferred Stock shall be convertible, at any time and from time to time from and after the
Original Issue Date at the option of the Holder thereof, into that number of shares of Common Stock (subject to the limitations
set forth in Section 6(d)) determined by dividing the Stated Value of such share of Preferred Stock by the Conversion Price. Holders
shall effect conversions by providing the Corporation with the written form of conversion notice, which Notice of Conversion must
include the Holder’s complete and accurate DWAC and prime broker delivery information, attached hereto as Annex A
(a "Notice of Conversion"). Each Notice of Conversion shall specify the number of shares of Preferred Stock to
be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred
Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be
prior to the date the applicable Holder delivers by facsimile such Notice of Conversion to the Corporation (such date, the "Conversion
Date"). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such
Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required.
The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical
error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing
the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted,
in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion
Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled
and shall not be reissued.


 


(b)          Conversion
Price. The conversion price for the Preferred Stock shall equal $_____,
subject to adjustment herein (the "Conversion Price").


 


(c)          Mechanics
of Conversion.


 


i.            Delivery
of Conversion Shares Upon Conversion. Not later than three (3) Trading Days after each Conversion Date (the "Share
Delivery Date"), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of Conversion
Shares being acquired upon the conversion of the Preferred Stock, which Conversion Shares shall be free of restrictive legends
and trading restrictions and (B) a bank check in the amount of accrued and unpaid dividends, if any, in accordance with Section
3. The Corporation shall deliver the Conversion Shares electronically through the Depository Trust Company or another established
clearing corporation performing similar functions.


 


ii.           Failure
to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as
directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation
at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Corporation shall
promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation and the Holder shall promptly
return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Conversion Notice. Failure by a
Holder to deliver to the Corporation a complete and accurate Notice of Conversion shall result in the adjustment of the Share Delivery
Date by adding one additional Trading Day for the benefit of the Corporation to comply with this Section 6(c) for each day that
such Holder fails to provide all of the information necessary for the Corporation to cause the Conversion Shares to be delivered
to such Holder.


 




    	6



     


    

 


iii.         Obligation
Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion
of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by
a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against
any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach
or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation
of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation
of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that
such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder.
If the Corporation fails to deliver to a Holder such Conversion Shares pursuant to Section 6(c)(i) on the second Trading Day after
the Share Delivery Date (subject to Section 6(c)(ii)) applicable to such conversion, the Corporation shall pay to such Holder,
in cash, as liquidated damages and not as a penalty, for each $5,000 of Stated Value of Preferred Stock being converted, $50 per
Trading Day (increasing to $100 per Trading Day on the third Trading Day and increasing to $200 per Trading Day on the sixth Trading
Day after such damages begin to accrue) for each Trading Day after such second Trading Day after the Share Delivery Date (subject
to Section 6(c)(ii)) until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit
a Holder's right to pursue actual damages for the Corporation's failure to deliver Conversion Shares within the period specified
herein and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder
from seeking to enforce damages pursuant to any other Section hereof or under applicable law.


 


iv.         Compensation
for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the
Holder, if the Corporation fails for any reason to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date
pursuant to Sections 6(c)(i) and 6(c)(ii), and if after such Share Delivery Date such Holder is required by its brokerage firm
to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon
the conversion relating to such Share Delivery Date (a "Buy-In"), then the Corporation shall (A) pay in cash to
such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s
total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the
aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by
(2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage
commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number
of shares of Preferred Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to
such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery
requirements under Sections 6(c)(i) and 6(c)(ii). For example, if a Holder purchases shares of Common Stock having a total purchase
price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the
actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a
total of $10,000 under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000.
The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In
and, upon request of the Corporation, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Corporation’s failure to timely deliver the Conversion Shares upon conversion
of the shares of Preferred Stock as required pursuant to the terms hereof.


 




    	7



     


    

 


v.           Reservation
of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its
authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein
provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the
other holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall (subject to the
terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of
Section 7) upon the conversion of the then outstanding shares of Preferred Stock. The Corporation covenants that all shares of
Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.


 


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


 


vii.         Transfer
Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to
any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion
Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved
in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares
of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person
or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established
to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all Transfer Agent fees required
for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.


 




    	8



     


    

 


(d)          Beneficial
Ownership Limitation. The Corporation shall not effect any conversion of the Preferred Stock, and a Holder shall not
have the right to convert any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth
on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a
group together with such Holder or any of such Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below).  For purposes of the foregoing sentence, the number of shares of Common Stock beneficially
owned by such Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the Preferred
Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are
issuable upon (i) conversion of the remaining, unconverted Stated Value of Preferred Stock beneficially owned by such Holder or
any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the
Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without
limitation, the Preferred Stock or the Warrants) beneficially owned by such Holder or any of its Affiliates.  Except as set
forth in the preceding sentence, for purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that
the Corporation 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 6(d) applies, the determination of whether the Preferred Stock is convertible (in relation to other securities
owned by such Holder together with any Affiliates) and of how many shares of Preferred Stock are convertible shall be in the sole
discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination
of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Holder together with any
Affiliates) and how many shares of the Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation.
To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a
Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation
shall have no obligation to verify or confirm the accuracy of such determination. In
addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder.
For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number
of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic
or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii)
a more recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding. 
Upon the written request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm orally and
in writing to such Holder the number of shares of Common Stock then outstanding.  In any case, the number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including
the Preferred Stock, by such Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock
was reported. The "Beneficial Ownership Limitation" shall be 4.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of Preferred Stock
held by the applicable Holder. A Holder, upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 6(d) applicable to its Preferred Stock 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 conversion of this Preferred Stock held by the Holder and the provisions of this Section 6(d) shall continue
to apply. Any such increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Corporation and shall only apply to such Holder and no other Holder. The provisions of this paragraph
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of Preferred Stock.


 




    	9



     


    

 


Section 7. Certain
Adjustments.


 


(a)          Stock
Dividends and Stock Splits. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend
or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common
Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion
of, or payment of a dividend on, this Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number
of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the
Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of
Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section
7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.


 




    	10



     


    

 


(b)          [Reserved].


 


(c)          Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, if at any time the Corporation grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the "Purchase Rights"), then the Holder of will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired
if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred
Stock (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 the earlier of (a) such time,
if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation and (b) solely with
respect to rights to purchase stock, warrants, securities or other property, the expiration of the applicable rights offering for
such Purchase Rights (in which case such Purchase Rights shall be cancelled and terminated)).


 


(d)          Pro
Rata Distributions. During such time as this Preferred Stock is outstanding, if the Corporation 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 Preferred Stock, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any
limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date
of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent
that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any
shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).


 




    	11



     


    

 


(e)          Fundamental
Transaction. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one
or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation,
directly or indirectly, effects any sale of all or substantially all of its assets in one or a series of related transactions,
(iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is
completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly
or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property, (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock
or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common
Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or
affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each
a "Fundamental Transaction"), then, upon any subsequent conversion of this Preferred Stock, the Holder shall have
the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence
of such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock), the
number of shares of Common Stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation,
and any additional consideration (the "Alternate Consideration") receivable by holders of Common Stock as a result
of such Fundamental Transaction for each share of Common Stock for which this Preferred Stock is convertible immediately prior
to such Fundamental Transaction (provided, however, that to the extent that a Holder’s or any of its Affiliate’s, singly
or in the aggregate, right to receive such shares would result in exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to receive such shares to such extent (or to beneficially own any shares of common stock of the Corporation
or its equivalent); however, such shares or securities shall be held in abeyance for the benefit of such Holder until such time,
if ever, as its right thereto would not result in such Holder exceeding the Beneficial Ownership Limitation, at which time the
Holder shall be delivered such shares or securities up to, but not exceeding, such Beneficial Ownership Limitation). For purposes
of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction,
and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to
the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as
to the Alternate Consideration it receives upon any conversion of this Preferred Stock following such Fundamental Transaction.
To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental
Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred
stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate
Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the
survivor (the "Successor Entity") to assume in writing all of the obligations of the Corporation under this Certificate
of Designation and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of
this Section 7(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the
Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Preferred
Stock, deliver to the Holder in exchange for this Preferred Stock a security of the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Preferred Stock which is convertible for a corresponding number of shares of
capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon conversion of this Preferred Stock (without regard to any limitations on the conversion of this Preferred Stock) prior to
such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares of capital
stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the
value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of
protecting the economic value of this Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and
which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction,
the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction,
the provisions of this Certificate of Designation and the other Transaction Documents referring to the "Corporation"
shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of
the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents with the same effect
as if such Successor Entity had been named as the Corporation herein.


 




    	12



     


    

 


(f)          Calculations.
All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.
For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall
be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.


 


(g)          Notice
to the Holders.


 


   i.            Adjustment
to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation
shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.


 




    	13



     


    

 


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


 




    	14



     


    

 


Section 8. Miscellaneous.



 


(a)          Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation,
any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight
courier service, addressed to the Corporation, at the address set forth above Attention: Chief Financial Officer, e-mail address
freiner@spherix.com or such other email address, or address as the Corporation may specify for such purposes by notice to
the Holders delivered in accordance with this Section 8. Any and all notices or other communications or deliveries to be provided
by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight
courier service addressed to each Holder at the facsimile number or address of such Holder appearing on the books of the Corporation,
or if no such facsimile number or address appears on the books of the Corporation, at the principal place of business of such Holder,
as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number
set forth in this Section 8 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 set forth in this Section 8 on a day that is
not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given.


 


(b)          Absolute
Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the
obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable,
on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.


 


(c)          Lost
or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen
or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated
certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of
Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of
such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.


 




    	15



     


    

 


(d)          Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation
shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to
the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement
and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its
respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts
sitting in the City of New York, Borough of Manhattan (the "New York Courts"). Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for
such proceeding. 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 Certificate of Designation and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating
to this Certificate of Designation or the transactions contemplated hereby. If any party shall commence an action or proceeding
to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution
of such action or proceeding.


 


(e)          Waiver.
Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as
or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate
of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to
any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or
any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of
Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.


 


(f)          Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable
to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates
the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum
rate of interest permitted under applicable law.


 


(g)          Next
Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.


 




    	16



     


    

 


(h)          Headings.
The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not
be deemed to limit or affect any of the provisions hereof.


 


(i)          Status
of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to the Purchase Agreement.
If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status
of authorized but unissued shares of preferred stock and shall no longer be designated as Series K Convertible Preferred Stock.


 




    	17



     


    

 


Signature page to Certificate of Designation


 


IN WITNESS WHEREOF,
the undersigned have executed this Certificate this ___ day of October, 2015.


 


	 	 	 
	 	 	 
	Chief Executive Officer	 	Secretary


 




    	18



     


    

 


ANNEX A


 


NOTICE OF CONVERSION


 


(To
be Executed by the Registered Holder in order to Convert Shares of Preferred Stock)


 


The undersigned hereby elects to convert
the number of shares of Series K Convertible Preferred Stock indicated below into shares of common stock, par value $0.0001 per
share (the "Common Stock"), of Spherix Incorporated, a Delaware corporation (the "Corporation"),
according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith
such certificates and opinions as may be required by the Corporation in accordance with the Purchase Agreement. No fee will be
charged to the Holders for any conversion, except for any such transfer taxes.


 


Conversion calculations:


 


	 	Date to Effect Conversion: _____________________________________________
	 	 
	 	Number of shares of Preferred Stock owned prior to Conversion: _______________
	 	 
	 	Number of shares of Preferred Stock to be Converted: ________________________
	 	 
	 	Stated Value of shares of Preferred Stock to be Converted: ____________________
	 	 
	 	Number of shares of Common Stock to be Issued: ___________________________
	 	 
	 	Applicable Conversion Price:____________________________________________
	 	 
	 	Number of shares of Preferred Stock subsequent to Conversion: ________________
	 	 
	 	Address for Delivery: ______________________
	 	or
	 	DWAC Instructions:
	 	Broker no: _________
	 	Account no: ___________


 


	 	[HOLDER
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 




    	19