Blueprint






Exhibit 4.1





 



WARRANT AGREEMENT

 


This
Warrant Agreement made as of August 20, 2019, is between American
Resources Corporation, a Florida corporation, with offices at 9002
Technology Lane, Fishers, Indiana 46038 (the “Company”), and VStock Transfer,
LLC, with offices at 18 Lafayette Place, Woodmere, New York (the
“Warrant
Agent”).

 


WHEREAS, the Company has determined to issue and
deliver up warrants (the “Warrants”) to investors, each Warrant evidencing the
right of the holder thereof to purchase one share of the
Company’s Class A common stock, par value $0.0001 per share
(the “Common Stock”) on the terms described
therein;

 


WHEREAS, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise
of the Warrants;

 


WHEREAS, the
Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised,
and the respective rights, limitation of rights and immunities of
the Company, the Warrant Agent and the holders of the Warrants;
and

 


WHEREAS, all acts
and things have been done and performed which are necessary to make
the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided
herein, the legally valid and binding obligations of the Company,
and to authorize the execution and delivery of this Warrant
Agreement.

 


NOW,
THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:

 

1. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for
the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with
the terms and conditions set forth in this Agreement.

 

2. Warrants.

 

2.1 Form of Warrant.

 




(a)

The Warrants shall
be registered securities and shall be evidenced by a global Warrant
(the “Global Warrants”) 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.






 






	
	
 

	
 







 

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(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 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 A (such separate certificate, a “Definitive
Certificate”) evidencing the same number of Warrants, which
request shall be in the form attached to Exhibit A (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
deemed surrender upon delivery by the Holder of a number of Global
Warrants for the same number of Warrants evidenced by a Warrant
Certificate, a “Warrant Exchange”), the Warrant Agent
shall promptly effect the Warrant Exchange and shall promptly 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 A and shall be reasonably acceptable in
all respects to such Holder.  In connection with a
Warrant Exchange, the Company agrees to deliver, or to direct the
Warrant Agent to deliver, the Definitive Certificate to the Holder
within ten (10) Business Days of the Warrant Certificate Request
Notice pursuant to the delivery instructions in the Warrant
Certificate Request Notice (“Warrant Certificate Delivery
Date”).  If the Company fails for any reason to
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 2.1(c) and 2.1(d) herein, shall not
apply to the Warrants evidenced by the Definitive
Certificate.   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.














 



(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 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 to Exhibit A (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 Global
Warrants Request Notice pursuant to the delivery instructions in
the Global Warrant Request Notice (“Global Warrants Delivery
Date”).  If the Company fails for any reason to
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.





 




 

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2.2
Reserved

 

2.3
Effect of Countersignature.
Unless and until countersigned by the Warrant Agent pursuant to
this Agreement, a Warrant shall be invalid and of no effect and may
not be exercised by the holder thereof. Warrant certificates shall
be dated the date of countersignature by the Warrant
Agent.

 

2.4
Registration.

 

2.5.1 Warrant
Register. The Warrant Agent shall maintain books
(“Warrant
Register”), for the registration of the original
issuance and transfers of the Warrants. Upon the initial issuance
of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.

 

2.5.2 Registered
Holder. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem
and treat the person in whose name such Warrant shall be registered
upon the Warrant Register (“Registered Holder”), as the
absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing
on the warrant certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.

 

3. Terms and Exercise of
Warrants.

 

3.1 Warrant Price. Each Warrant
shall, when countersigned by the Warrant Agent, entitle the
Registered Holder thereof, subject to the provisions of such
Warrant and of this Warrant Agreement, to purchase from the Company
the number of shares of Common Stock and at the price, subject to
the adjustments provided in Section 4 hereof. The term
“Warrant Price”
as used in this Warrant Agreement refers to the price per share at
which Common Stock may be purchased at the time a Warrant is
exercised.


 

 

3.2 Duration of Warrants. A Warrant
may be exercised only during the period (“Exercise Period”) commencing on
the date of issuance. For purposes of this Warrant Agreement, the
“Expiration
Time” shall have the meaning set forth in the Warrant.
Each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the close of business
on the Expiration Date.

 

3.3 Exercise of
Warrants.

 

3.3.1 Payment.
Subject to the provisions of the Warrant and this Warrant
Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the Registered Holder thereof by surrendering it,
at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent, with the subscription form, as set
forth in the Warrant, duly executed, and by paying in full, in
lawful money of the United States, in cash, good certified check or
good bank draft payable to the order of the Company (or as
otherwise agreed to by the Company), the Warrant Price for each
full share of Common Stock as to which the Warrant is exercised and
any and all applicable taxes due in connection with the exercise of
the Warrant, the exchange of the Warrant for the Common Stock, and
the issuance of the Common Stock. In no event shall the Registered
Holder of any Warrant be entitled to “net cash settle”
the Warrant.


 




 

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3.3.2 Issuance
of Certificates. As soon as practicable after the exercise
of any Warrant and the clearance of the funds in payment of the
Warrant Price, the Company shall issue to the Registered Holder of
such Warrant a certificate or certificates representing the number
of full shares of Common Stock to which he, she or it is entitled,
registered in such name or names as may be directed by him, her or
it, and, if such Warrant shall not have been exercised or
surrendered in full, a new countersigned Warrant for the number of
shares as to which such Warrant shall not have been exercised or
surrendered. Warrants may not be exercised by, or securities issued
to, any Registered Holder in any state in which such exercise or
issuance would be unlawful. In the event a registration statement
under the Act with respect to the Common Stock underlying the
Warrants is not effective or a prospectus is not available, or
because such exercise would be unlawful with respect to a
Registered Holder in any state, the Registered Holder shall not be
entitled to exercise such Warrants and such Warrants may have no
value and expire worthless.  

 




3.3.3 Valid
Issuance. All shares of Common Stock issued upon the proper
exercise or surrender of a Warrant in conformity with this
Agreement shall be validly issued, fully paid and
nonassessable.

 

3.3.4 Date
of Issuance. Each person or entity in whose name any such
certificate for shares of Common Stock is issued shall, for all
purposes, be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment
of the Warrant Price was made, irrespective of the date of delivery
of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the stock transfer books are open.

 

4. Adjustments.

 

4.1 Notices of Changes in Warrant.
Upon every adjustment of the Warrant Price or the number of shares
issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the
Warrant Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price
upon the exercise of a Warrant, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation
is based. Upon the occurrence of any such adjustment the Company
shall give written notice to each Warrant holder, at the last
address set forth for such holder in the Warrant Register, of the
record date or the effective date of the event. Failure to give
such notice, or any defect therein, shall not affect the legality
or validity of such event.

 

4.2 No Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement
to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant
to this Section 4, the holder of any Warrant would be entitled, upon the exercise of
such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round up to the nearest whole
number the number of the shares of Common Stock to be issued to the
Warrant holder.


 




 

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4.3 Form of Warrant. The form of
Warrant need not be changed because of any adjustment pursuant to
this Section 4, and Warrants issued after such adjustment may state
the same Warrant Price and the same number of shares as is stated
in the Warrants initially issued pursuant to this Agreement.
However, the Company may, at any time, in its sole discretion, make
any change in the form of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any
Warrant thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant or otherwise, may be in the
form as so changed.

 

5. Transfer and Exchange of
Warrants.

 

5.1 Registration of Transfer. The
Warrant Agent shall register the transfer, from time to time, of
any outstanding Warrant into the Warrant Register, upon surrender
of such Warrant for transfer, properly endorsed with signatures
properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an
equal aggregate number of Warrants shall be issued and the old
Warrant shall be cancelled by the Warrant Agent. The Warrants so
cancelled shall be delivered by the Warrant Agent to the Company
from time to time upon the Company’s request.

 

5.2 Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and,
thereupon, the Warrant Agent shall issue in exchange therefor one
or more new Warrants as requested by the Registered Holder of the
Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that, in the event a Warrant
surrendered for transfer bears a restrictive legend, the Warrant
Agent shall not cancel such Warrant and shall issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion
of counsel for the Company stating that such transfer may be made
and indicating whether the new Warrants must also bear a
restrictive legend.

 

5.3 Fractional Warrants. The
Warrant Agent shall not be required to effect any registration of
transfer or exchange which will result in the issuance of a warrant
certificate for a fraction of a warrant.

 

5.4 Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this
Agreement, the Warrants required to be issued pursuant to the
provisions of this Section 5, and the Company, whenever required by
the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.

 

6. Other Provisions Relating to Rights of
Holders of Warrants.

 

6.1 No Rights as Stockholder. A
Warrant does not entitle the Registered Holder thereof to any of
the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions,
exercise any preemptive rights to vote or to consent or to receive
notice as stockholders in respect of the meetings of stockholders
or the election of directors of the Company or any other
matter.


 




 

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6.2 Lost, Stolen Mutilated or Destroyed
Warrants. If any Warrant is lost, stolen, mutilated or
destroyed, the Company and the Warrant Agent may, on such terms as
to indemnity or otherwise as they may in their discretion impose
(which terms shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination, tenor
and date as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute a substitute contractual
obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.

 

6.3 Reservation of Common Stock.
The Company shall at all times reserve and keep available a number
of its authorized but unissued shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding
Warrants issued pursuant to this Warrant Agreement.

 

7. Concerning the Warrant Agent and Other
Matters.

 

7.1 Payment of Taxes. The Company
will, from time to time, promptly pay all taxes and charges that
may be imposed upon the Company or the Warrant Agent in respect of
the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the Company shall not be obligated to pay
any transfer taxes in respect of the Warrants or such
shares.

 

7.2 Resignation, Consolidation, or Merger
of Warrant Agent.

 

7.2.1 Appointment
of Successor Warrant Agent. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after
giving sixty (60) days’ notice in writing to the Company. If
the office of the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint, in
writing, a successor Warrant Agent in place of the Warrant Agent.
If the Company shall fail to make such appointment within a period
of 30 days after it has been notified in writing of such
resignation or incapacity by the Warrant Agent or by the holder of
the Warrant (who shall, with such notice, submit his, her or its
Warrant for inspection by the Company), then the holder of any
Warrant may apply to the Supreme Court of the State of New York for
the County of New York for the appointment of a successor Warrant
Agent. Any successor Warrant Agent, whether appointed by the
Company or by such court, shall be a corporation organized and
existing under the laws of the State of New York, in good standing
and have its principal office in the Borough of Manhattan, City and
State of New York, and be authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by
federal or state authorities. After appointment, any successor
Warrant Agent shall be vested with all the authority, powers,
rights, immunities, duties and obligations of its predecessor
Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but, if for any
reason it becomes necessary or appropriate, the predecessor Warrant
Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent
hereunder; and, upon request of any successor Warrant Agent, the
Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in
and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties and obligations.


 




 

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7.2.2 Notice
of Successor Warrant Agent. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to
the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such
appointment.

 

7.2.3 Merger
or Consolidation of Warrant Agent. Any corporation into
which the 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 shall be a party shall be
the successor Warrant Agent under this Warrant Agreement without
any further act on the part of the Company or the Warrant
Agent.

 

7.3 Fees and Expenses of Warrant
Agent.

 

7.3.1 Remuneration.
The Company agrees to pay the Warrant Agent reasonable remuneration
for its services as Warrant Agent hereunder as set
forth on Exhibit B
hereto and will reimburse the Warrant Agent upon demand for all
expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.

 

7.3.2 Further
Assurances. The Company agrees to 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
Warrant Agent for the carrying out or performing of the provisions
of this Warrant Agreement.

 

7.4 Liability of Warrant
Agent.

 

7.4.1 Reliance
on Company Statement. Whenever, in the performance of its
duties under this Warrant 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 statement signed by the
Chief Executive Officer, Chief Financial Officer or Chairman of the
Board of the Company and delivered to the Warrant Agent. The
Warrant Agent may rely upon such statement for any action taken or
suffered in good faith by it pursuant to the provisions of this
Warrant Agreement.

 

7.4.2 Indemnity.
The Warrant Agent shall be liable hereunder only for its own
negligence, willful misconduct or bad faith. The Company agrees to
indemnify the Warrant Agent and save it harmless against any and
all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent in the
execution of this Warrant Agreement, except as a result of the
Warrant Agent’s negligence, willful misconduct or bad
faith.

 




7.4.3 Exclusions.
The Warrant Agent shall have no responsibility with respect to the
validity of this Warrant Agreement or with respect to the validity
or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Warrant Agreement or in any
Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible
for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment; 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 Warrant Agreement or any Warrant or as to whether any shares
of Common Stock will when issued be valid and fully paid and
nonassessable.


 




 

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7.5 Acceptance of Agency. The
Warrant Agent hereby accepts the agency established by this Warrant
Agreement and agrees to perform the same upon the terms and
conditions herein set forth and, among other things, shall account
promptly to the Company with respect to Warrants exercised and
concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of the
Company’s Common Stock through the exercise of
Warrants.

 

8. Miscellaneous
Provisions.

 

8.1 Successors. All the covenants
and provisions of this Warrant 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.

 

8.2 Notices. Any notice, statement
or demand authorized by this Warrant Agreement to be given or made
by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be delivered by hand or sent by registered or
certified mail or overnight courier service, addressed (until
another address is filed in writing by the Company with the Warrant
Agent) as follows:


 


American Resources
Corporation


PO Box
606


Fishers, Indiana
46038


Attn:
Gregory Q. Jensen, General
Counsel

 


Any
notice, statement or demand authorized by this Warrant Agreement to
be given or made by the holder of any Warrant or by the Company to
or on the Warrant Agent shall be delivered by hand or sent by
registered or certified mail or overnight courier service,
addressed (until another address is filed in writing by the Warrant
Agent with the Company), as follows:


 


VStock
Transfer, LLC


18
Spruce Place


Woodmere, NY
11598


Attn:
Warrant Department

 


Any
notice, sent pursuant to this Warrant Agreement shall be effective,
if delivered by hand, upon receipt thereof by the party to whom it
is addressed, if sent by overnight courier, on the next business
day of the delivery to the courier, and if sent by registered or
certified mail on the third day after registration or certification
thereof

 

8.3 Applicable Law. The validity,
interpretation, and performance of this Warrant Agreement and of
the Warrants shall be governed in all respects by the laws of the
State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against
it arising out of or relating in any way to this Warrant Agreement
shall be brought and enforced in the courts of the State of New
York or the United States District Court for the Southern District
of New York, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any such process or summons to be
served upon the Company may be served by transmitting a copy
thereof by registered or certified mail, return receipt requested,
postage prepaid, addressed to it at the address set forth in
Section 9.2 hereof. Such mailing shall be deemed personal service
and shall be legal and binding upon the Company in any action,
proceeding or claim.


 




 

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8.4 Examination of the Warrant
Agreement. A copy of this Warrant Agreement shall be
available at all reasonable times at the office of the Warrant
Agent for inspection by the Registered Holder of any Warrant. The
Warrant Agent may require any such holder to submit his, her or its
Warrant for inspection.

 

8.5 Counterparts- Facsimile
Signatures. This Warrant 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 one and the same instrument.
Facsimile signatures shall constitute original signatures for all
purposes of this Warrant Agreement.

 

8.6 Effect of Headings. The section
headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation
thereof

 

8.7 Amendments.

 

8.7.1 This
Agreement and any Warrant certificate may be amended by the parties
hereto by executing a supplemental warrant agreement (a
“Supplemental
Agreement”), without the consent of any of the Warrant
holders, for the purpose of (i) curing any ambiguity, or curing,
correcting or supplementing any defective provision contained
herein, or making any other provisions with respect to matters or
questions arising under this agreement that is not inconsistent
with the provisions of this agreement or the Warrant certificates,
(ii) evidencing the succession of another corporation to the
Company and the assumption by any such successor of the covenants
of the Company contained in this agreement and the Warrants, (iii)
evidencing and providing for the acceptance of appointment by a
successor Warrant Agent with respect to the Warrants, (iv) adding
to the covenants of the Company for the benefit of the Holders or
surrendering any right or power conferred upon the Company under
this Agreement, or (viii) amending this agreement and the Warrants
in any manner that the Company may deem to be necessary or
desirable and that will not adversely affect the interests of the
Warrant holders in any material respect.

 

8.7.2 The
Company and the Warrant Agent may amend this Warrant Agreement and
the Warrants by executing a Supplemental Agreement with the consent
of the Holders of not fewer than a majority of the unexercised
Warrants affected by such amendment, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the
rights of the Holders under this Warrant Agreement; provided,
however, that, without the consent of each of the Warrant holders
affected thereby, no such amendment may be made that (i) changes
the Warrants so as to reduce the number of shares purchasable upon
exercise of the Warrants or so as to increase the Warrant Price
(other than as provided by Section 4), (ii)
shortens the period of time during which the Warrants may be
exercised, (iii) otherwise adversely affects the exercise rights of
the Holders in any material respect, or (iv) reduces the number of
unexercised Warrants the holders of which must consent for
amendment of this agreement or the Warrants.

 

8.8 Severability. This Warrant
Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Warrant Agreement or of any
other term or provision hereof. Furthermore, in lieu of any such
invalid or unenforceable term or provision, the parties hereto
intend that there shall be added as a part of this Warrant
Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.


 




 

9








 





 


IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by
the parties hereto as of the day and year first above
written.

 


AMERICAN
RESOURCES CORPORATION

 


By:
/s/ Thomas
Sauve


Thomas
Sauve, President

 


VSTOCK
TRANSFER, LLC

 


By:
/s/ Yoel
Goldfelder


Name:
Yoel Goldfelder


Title:
CEO


 


 


 




 

10








 





 



EXHIBIT A


Form of
Warrant

 


[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]

 


CUSIP
NO. 02927U 117



 



COMMON STOCK PURCHASE WARRANT



 



AMERICAN RESOURCES CORPORATION


 


	

Warrant
Shares: _______

	

Initial
Exercise Date: August 27, 2019


	
 

	

Original
Issue Date: August ___, 2019







 


THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that,
for value received, _[CEDE&CO.]____________ 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 August
27, 2019 (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on August 27,
2024 (the “Termination Date”) but
not thereafter, to subscribe for and purchase from American
Resources Corporation, a Florida corporation (the
“Company”), up to ______
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 Agent 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.


 




 

11








 






 


"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.


 


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


 


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


 


"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-3
(File No. 333-230786).


 


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


 


“Subsidiary” means any
subsidiary of the Company and shall, where applicable, also include
any direct or indirect subsidiary of the Company formed or acquired
after the date hereof.


 


"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 or the New
York Stock Exchange (or any successors to any of the
foregoing).


  


"Transfer Agent"
means VStock Transfer, LLC, with offices located at 18 Lafayette
Place Woodmere, NY 11598 and any successor transfer agent of the
Company.


 


"VWAP"
means, for any date, the price determined by the first of the
following clauses that applies: (a) if the 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.


 


“Warrant Agent Agreement”
means that certain Warrant 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.


 






 

12








 






 


Section 2. Exercise.


 


a)       Exercise
of Warrant. Subject to the provisions of Section 2(e)
herein, 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 PDF
copy submitted by e-mail (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.


  


For the
avoidance of doubt, there is no circumstance that would require the
Company to net cash settle the Warrants.


 


For the
avoidance of doubt, and without limiting the rights of a Holder to
utilize a cashless exercise pursuant to Section 2(c) and receive
unrestricted shares, at any time during which there is no effective
registration statement for the issuance or resale of the Warrant
Shares, the Company may settle a cash exercise of the Warrant with
unregistered common stock.


 


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 Warrant in
certificated form pursuant to the terms of the Warrant Agent
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 $1.20, subject to adjustment hereunder (the
“Exercise
Price”).


 


c)       Cashless
Exercise. If at any time after the Initial Exercise Date,
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:


  






 

13








 






 


(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)(64) 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).


 


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 the 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 or
the Warrant Agent 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 or the Warrant
Agent 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, and for purposes of Regulation SHO,
a holder whose interest in this Warrant is a beneficial interest in
certificate(s) representing this Warrant held in book-entry form
through DTC shall be deemed to have exercised its interest in this
Warrant upon instructing its broker that is a DTC participant to
exercise its interest in this Warrant, provided that in such case
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 or cause
the delivery 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.


 






 

14








 






 


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 or cause the Warrant
Agent to 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.


 


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.


  






 

15








 






 


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.


 


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
Convertible Securities or Options) 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 (1) 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.


 






 

16








 






 


Section 3. Certain
Adjustments.


 


a) So
long as the Warrant remains outstanding, the Exercise Price and
number of Warrant Shares issuable upon exercise of this Warrant are
subject to adjustment from time to time as set forth in this
Section 3(a).


 


i)       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.

 


ii) Adjustment
Upon Issuance of Shares of Common Stock. If and whenever on
or after the date hereof, the Company issues or sells (or announces
any agreement to issue or sell), or in accordance with
this Section
3(a)(ii) is deemed to have issued or sold, any shares
of Common Stock (including the issuance or sale of shares of Common
Stock owned or held by or for the account of the Company, but
excluding any Excluded Securities issued or sold or deemed to have
been issued or sold) for a consideration per share (the
“New Issuance
Price”) less than a price equal to the Exercise Price
in effect immediately prior to such issuance or sale or deemed
issuance or sale (such Exercise Price then in effect is referred to
herein as the “Applicable Price”) (the
foregoing a “Dilutive Issuance”), then
immediately after such Dilutive Issuance, the Exercise Price then
in effect shall be reduced to an amount equal to the New Issuance
Price. For all purposes of the foregoing (including, without
limitation, determining the adjusted Exercise Price and the New
Issuance Price under this Section 3(a)(ii)), the
following shall be applicable:

 

 


(A) Issuance
of Options. If the Company in any manner grants or sells any
Options and the lowest price per share for which one share of
Common Stock is at any time issuable upon the exercise of any such
Option or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option or otherwise
pursuant to the terms thereof is less than the Applicable Price,
then such share of Common Stock shall be deemed to be outstanding
and to have been issued and sold by the Company at the time of the
granting or sale of such Option for such price per share. For
purposes of this Section 3(a)(ii)(A), the
“lowest price per share for which one share of Common Stock
is at any time issuable upon the exercise of any such Options or
upon conversion, exercise or exchange of any Convertible Securities
issuable upon exercise of any such Option or otherwise pursuant to
the terms thereof” shall be equal to (1) the lower of (x) the
sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to any one share of Common
Stock upon the granting or sale of such Option, upon exercise of
such Option and upon conversion, exercise or exchange of any
Convertible Security issuable upon exercise of such Option or
otherwise pursuant to the terms thereof and (y) the lowest exercise
price set forth in such Option for which one share of Common Stock
is issuable (or may become issuable assuming all possible market
conditions) upon the exercise of any such Options or upon
conversion, exercise or exchange of any Convertible Securities
issuable upon exercise of any such Option or otherwise pursuant to
the terms thereof minus (2) the sum of all amounts paid or payable
to the holder of such Option (or any other Person) upon the
granting or sale of such Option, upon exercise of such Option and
upon conversion, exercise or exchange of any Convertible Security
issuable upon exercise of such Option or otherwise pursuant to the
terms thereof plus the value of any other consideration received or
receivable by, or benefit conferred on, the holder of such Option
(or any other Person). Except as contemplated below, no further
adjustment of the Exercise Price shall be made upon the actual
issuance of such shares of Common Stock or of such Convertible
Securities upon the exercise of such Options or otherwise pursuant
to the terms of or upon the actual issuance of such shares of
Common Stock upon conversion, exercise or ex-change of such
Convertible Securities.


 







 

17








 





 





(B) Issuance
of Convertible Securities. If the Company in any manner
issues or sells any Convertible Securities and the lowest price per
share for which one share of Common Stock is at any time issuable
upon the conversion, exercise or exchange thereof or otherwise
pursuant to the terms thereof is less than the Applicable Price,
then such share of Common Stock shall be deemed to be outstanding
and to have been issued and sold by the Company at the time of the
issuance or sale of such Convertible Securities for such price per
share. For the purposes of this Section 3(a)(ii)(B), the
“lowest price per share for which one share of Common Stock
is at any time issuable upon the conversion, exercise or exchange
thereof or otherwise pursuant to the terms thereof” shall be
equal to (1) the lower of (x) the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with
respect to one share of Common Stock upon the issuance or sale of
the Convertible Security and upon conversion, exercise or exchange
of such Convertible Security or otherwise pursuant to the terms
thereof and (y) the lowest conversion price set forth in such
Convertible Security for which one share of Common Stock is
issuable (or may become issuable assuming all possible market
conditions) upon conversion, exercise or exchange thereof or
otherwise pursuant to the terms thereof minus (2) the sum of all
amounts paid or payable to the holder of such Convertible Security
(or any other Person) upon the issuance or sale of such Convertible
Security plus the value of any other consideration received or
receivable by, or benefit conferred on, the holder of such
Convertible Security (or any other Person). Except as contemplated
below, no further adjustment of the Exercise Price shall be made
upon the actual issuance of such shares of Common Stock upon
conversion, exercise or exchange of such Convertible Securities or
otherwise pursuant to the terms thereof, and if any such issuance
or sale of such Convertible Securities is made upon exercise of any
Options for which adjustment of this Warrant has been or is to be
made pursuant to other provisions of this Section 3(a)(ii), except as
contemplated below, no further adjustment of the Exercise Price
shall be made by reason of such issuance or sale.

 

 


(C) Change
in Option Price or Rate of Conversion. If the purchase or
exercise price provided for in any Options, the additional
consideration, if any, payable upon the issue, conversion, exercise
or exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exercisable or
exchangeable for shares of Common Stock increases or decreases at
any time (other than proportional changes in conversion or exercise
prices, as applicable, in connection with an event referred to
in Section
3(a)(i)), the Exercise Price in effect at the time of such
increase or decrease shall be adjusted to the Exercise Price which
would have been in effect at such time had such Options or
Convertible Securities provided for such increased or decreased
purchase price, additional consideration or increased or decreased
conversion rate, as the case may be, at the time initially granted,
issued or sold. For purposes of this Section 3(a)(ii)(C), if the
terms of any Option or Convertible Security that was outstanding as
of the Initial Exercise Date are increased or decreased in the
manner described in the immediately preceding sentence, then such
Option or Convertible Security and the shares of Common Stock
deemed issuable upon exercise, conversion or exchange thereof shall
be deemed to have been issued as of the date of such increase or
decrease. No adjustment pursuant to this Section 3(a)(ii) shall be
made if such adjustment would result in an increase of the Exercise
Price then in effect.


 







 

18








 





 





(D) Calculation
of Consideration Received. If any Option and/or Convertible
Security and/or Adjustment Right is issued in connection with the
issuance or sale or deemed issuance or sale of any other securities
of the Company (as determined by the Holder, the
“Primary
Security”, and such Option and/or Convertible Security
and/or Adjustment Right, the “Secondary Securities” and
together with the Primary Security, each a “Unit”), together
comprising one integrated transaction, the aggregate consideration
per share of Common Stock with respect to such Primary Security
shall be deemed to be the lowest of (x) the purchase price of such
Unit, (y) if such Primary Security is an Option and/or Convertible
Security, the lowest price per share for which one share of Common
Stock is at any time issuable upon the exercise or conversion of
the Primary Security in accordance with Section
3(a)(ii)(A) or 3(a)(ii)(B) above and (z)
the lowest VWAP of the Common Stock on any Trading Day during the
four Trading Day period immediately following the public
announcement of such Dilutive Issuance (for the avoidance of doubt,
if such public announcement is released prior to the opening of the
applicable Trading Market on a Trading Day, such Trading Day shall
be the first Trading Day in such four Trading Day period);
provided, further that if this Warrant is exercised, in whole or in
part, during such four Trading Day period, solely with respect to
the shares of Common Stock to be issued in any such exercise, such
period shall be deemed to end as of the time of exercise of this
Warrant (the “Adjusted Period”) and the
exercise price of this Warrant with respect to such shares of
Common Stock shall be adjusted to the lowest VWAP of the Common
Stock on any Trading Day in such Adjusted Period. If any shares of
Common Stock, Options or Convertible Securities are issued or sold
or deemed to have been issued or sold for cash, the consideration
received therefor will be deemed to be the net amount of
consideration received by the Company therefor. If any shares of
Common Stock, Options or Convertible Securities are issued or sold
for a consideration other than cash, the amount of such
consideration received by the Company will be the fair value of
such consideration, except where such consideration consists of
publicly traded securities, in which case the amount of
consideration received by the Company for such securities will be
the arithmetic average of the VWAPs of such security for each of
the five (5) Trading Days immediately preceding the date of
receipt. If any shares of Common Stock, Options or Convertible
Securities are issued to the owners of the non-surviving entity in
connection with any merger in which the Company is the surviving
entity, the amount of consideration therefor will be deemed to be
the fair value of such portion of the net assets and business of
the non-surviving entity as is attributable to such shares of
Common Stock, Options or Convertible Securities (as the case may
be). The fair market value of any consideration other than cash or
publicly traded securities will be determined jointly by the
Company and the Holder. If such parties are unable to reach
agreement within ten (10) days after the occurrence of an event
requiring valuation (the “Valuation Event”), the
fair market value of such consideration will be determined within
five (5) Trading Days after the tenth (10th) day following such
Valuation Event by an independent, reputable appraiser jointly
selected by the Company and the Holder. The determination of such
appraiser shall be final and binding upon all parties absent
manifest error and the fees and expenses of such appraiser shall be
borne by the Company.

 



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

 



(F) Definitions.
For the purpose of this Warrant, the following definitions shall
apply:

 



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


 







 

19








 





 





(II)
“Approved Stock
Plan” means any employee benefit plan or similar
agreement which has been approved by the board of directors of the
Company prior to or subsequent to the date hereof pursuant to which
shares of Common Stock and standard options to purchase Common
Stock may be issued to any employee, officer, director or
consultants for services provided to the Company in their capacity
as such.

 



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

 



(IV)
“Excluded
Securities” means (i) shares of Common Stock or
standard options to purchase Common Stock issued to directors,
officers, employees or consultants of the Company for services
rendered to the Company in their capacity as such pursuant to an
Approved Stock Plan (as defined above), provided that the exercise
price of any such options is not lowered, none of such options are
amended to increase the number of shares issuable thereunder and
none of the terms or conditions of any such options are otherwise
materially changed in any manner that adversely affects any of the
holders of the Registered Warrants (as defined below); (ii) shares
of Common Stock issued upon the conversion or exercise of
Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are
covered by clause (i) above) issued prior to the Initial Exercise
Date, provided that the conversion price of any such Convertible
Securities (other than standard options to purchase Common Stock
issued pursuant to an Approved Stock Plan that are covered by
clause (i) above) is not lowered (except pursuant to an existing
reset or other adjustment mechanism contained in the Convertible
Security on the date hereof), none of such Convertible Securities
(other than standard options to purchase Common Stock issued
pursuant to an Approved Stock Plan that are covered by clause (i)
above) are amended to increase the number of shares issuable
thereunder and none of the terms or conditions of any such
Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are
covered by clause (i) above) are otherwise materially changed in
any manner that adversely affects any of the holders of the
Registered Warrants; and (iii) the shares of Common Stock issuable
upon exercise of the warrants issued on the Initial Exercise Date
pursuant to the Underwriting Agreement (the “Registered Warrants”);
provided, that the terms of such warrants are not amended, modified
or changed on or after the Initial Exercise Date (other than
antidilution adjustments pursuant to the terms thereof in effect as
of the Initial Exercise Date).

 



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


 





b)       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 all 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, that, 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). To the extent that this Warrant
has not been partially or completely exercised at the time of such
Distribution, such portion of the Distribution shall be held in
abeyance for the benefit of the Holder until the Holder has
exercised this Warrant.


  






 

20








 






 


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, merger 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 the Holder shall have the right to
exercise the Warrant concurrent with the closing of the Fundamental
Transaction and receive the same amount and kind of securities,
cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been,
immediately prior to the occurrence of such Fundamental
Transaction, the holder of the number of Warrant Shares then
issuable upon exercise in full of this Warrant (the
“Alternate
Consideration”). 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. At the Holder's option and
request, any successor to the Company or surviving entity in such
Fundamental Transaction shall issue to the Holder a new warrant
substantially in the form of this Warrant and consistent with the
foregoing provisions and evidencing the Holder's right to purchase
the Alternate Consideration for the aggregate Exercise Price upon
exercise thereof. The terms of any agreement pursuant to which a
Fundamental Transaction is effected shall include terms requiring
any such successor or surviving entity to comply with the
provisions of this Section 3(d) and insuring that the Warrant (or
any such replacement security) will be similarly adjusted upon any
subsequent transaction analogous to a Fundamental Transaction. For
the avoidance of doubt, except as expressly set forth in this
Section 3(d), in no event does this agreement result in the Company
having an obligation to issue cash or other assets to the
holder.


  


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 (with a copy
to the Warrant Agent) 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.


 


 




 

21








 






 


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.


  


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, 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, the signature
guarantee of a guarantor institution that is a participant in a
signature guarantee program approved by the Securities Transfer
Association. . 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 be required to surrender
this Warrant to the Company physically in order to assign or
transfer any portion of this Warrant.. The Holder shall surrender
this Warrant to the Company within two (2) Trading Days of the date
on which the Holder delivers an assignment form to the Company
assigning this Warrant. 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.


 






 

22








 






 


b)       New
Warrants. If this Warrant is not held in global form through
DTC (or any successor depositary), 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, to the extent this Warrant
is not held in global form through DTC, the Company) shall register
this Warrant, upon records to be maintained by the Warrant Agent
(or, to the extent this Warrant is not held in global form through
DTC, 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.


 


b)       Loss,
Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of an affidavit of loss
reasonably satisfactory to it of the Company evidencing 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 and the Warrant Agent (that, in the case of the
Warrant, shall include the posting of a bond), 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).


 






 

23








 






 


Except
and to the extent as waived or consented to by the holders of a
majority of the then outstanding Warrants (based on the number of
Warrant Shares underlying such Warrants), 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, and (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.


 


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. Notwithstanding the foregoing, nothing in this
paragraph shall limit or restrict the federal district court in
which a Holder may bring a claim under the federal securities
laws.


  


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.


 




 

24








 






 


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, by facsimile, e-mail (except with respect to the
Warrant Agent) or sent by a nationally recognized overnight courier
service, addressed to VStock Transfer, LLC, 18 Spruce Place, Woodmere, NY 11598,
Attention, Warrant Department, or to the Company, 9002 Technology
Lane, Fishers, IN 46038, Attention: Mark Jensen; e-mail address:
mcj@questenergyinc.com; 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 (a) the time of transmission, if
such notice or communication is delivered via facsimile at the
facsimile number or e-mail attachment at the email address set
forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading
Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or e-mail
attachment at the e-mail address as set forth on the signature
pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the
second (2nd) Trading Day following the date of mailing, if sent by
U.S. nationally recognized overnight courier service or (d) 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.


 


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


 


********************



 



(Signature Page Follows)


 


 




 

25








 






 


 


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.


 


	
 

	


AMERICAN RESOURCES CORPORATION


	
 

	
 


	
 

	

By:

	

                     


	
 

	
 

	

Name:


Title:







 


	
 

	
 


	
 

	


VSTOCK TRANSFER, LLC, as warrant agent


	
 

	
 


	
 

	
 


	
 

	

By:

	

                     


	
 

	
 

	

Name:


Title:







 


 


 




 

26








 






 




NOTICE OF EXERCISE


 


TO:
AMERICAN RESOURCES
CORPORATION


 


(1)       The
undersigned hereby elects to purchase ________ Warrant Shares of
the Company pursuant to the terms of the attached Warrant (only
required 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:
________________________________________________________________________________________


 


 




 

27








 






 


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:

	
 


	

 


 


Phone
Number:


 


Email
Address:


 

	

(Please
Print)


 


______________________________________


 


______________________________________


 


	

Dated:
_______________ __, ______

	
 


	
 

	
 


	

Holder’s
Signature: _____________________________

	
 


	
 

	
 


	

Holder’s
Address:_____________________________

	
 







 




 

28








 






 



WARRANT CERTIFICATE REQUEST NOTICE


 


To:
Vstock Transfer, LLC, as Warrant Agent for American Resources
Corporation. (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:
_______________________________________________________________


 




 

29








 










 



GLOBAL WARRANT REQUEST NOTICE


 


To:
VStock Transfer, LLC, as Warrant Agent for American Resources
Corporation (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:
______________________________________________________________




 

30








 





 






EXHIBIT B

 



Warrant Agent Fees


 






Monthly Maintenance Fee


 


Our
monthly maintenance fee is calculated based upon the number of
record shareholders per class or series of Warrants:

 




o

Monthly Maintenance
of 1-99 Registered
Holder                                                                                                      $99
per month








o

Monthly Maintenance
of 100-200 Registered
Holder                                                                                               
$150 per month








o

Monthly Maintenance
of 200-300 Registered
Holder                                                                                               
$299 per month








o

Monthly Maintenance
of 300-500 Registered
Holder                                                                                               
$399 per month








o

Monthly Maintenance
of 500+ Registered
Holder                                                                                                      $749
per month







Service Fees


 


The
following are a sample of services provided on a per transaction
fee basis as set forth below:


 




o

Per Warrant
Exercise                                                                                 $45.00








o

Issuance Per
Warrant                                                                                 $35.00








o

Replacement of Lost
or Stolen
Warrant                                                   
$50.00 (paid by Registered
Holder)








o

Lost Registered Holder search (if
needed)                                               
$5.00 per Registered Holder
per search








o

Escheatment (if
needed)                                                                           
$50.00 per Registered
Holder






 



Other Costs and Excluded Services


 


The
company will be billed separately at cost for certain out-of-pocket
expenses such as postage and courier fees.

 


 




 

31