EXHIBIt
10.1


 


FORM
OF SECURITIES PURCHASE AGREEMENT


 


This Securities Purchase Agreement (this “Agreement”)
is dated as of May __, 2017, between Amyris, Inc., a Delaware corporation (the “Company”), and each purchaser
identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively
the “Purchasers”).


 


WHEREAS, subject to the terms and conditions
set forth in this Agreement and pursuant to (i) an effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), as to the Registered Securities and (ii) an exemption from the registration requirements
of Section 5 of the Securities Act contained in Section 4(a)(2) thereof and/or Regulation D thereunder as to the Unregistered Securities,
the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from
the Company, securities of the Company as more fully described in this Agreement.


 


NOW, THEREFORE, IN CONSIDERATION of the mutual
covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Company and each Purchaser agree as follows:


 


ARTICLE I.

DEFINITIONS


 


1.1           
Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise
defined herein have the meanings given to such terms in the Series A Certificate of Designation (as defined herein), and (b) the
following terms have the meanings set forth in this Section 1.1:


 


“Acquiring Person” shall have
the meaning ascribed to such term in Section 4.5.


 


“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.


 


“Anti-Dilution Warrants”
shall have the meaning ascribed to such term in Section 2.2(a)(vi).


 


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


 


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


 


“Bylaws” shall
have the meaning ascribed to such term in Section 3.1(f).


 






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“Cash Warrants”
shall have the meaning ascribed to such term in Section 2.2(a)(v).


 


“Certificates of Designation”
means the Series A Certificate of Designation, the Series B Certificate of Designation and the Series C Certificate of Designation,
each to be filed prior to the Closing by the Company with the Secretary of State of Delaware.


 


“Certificate of Incorporation”
shall have the meaning ascribed to such term in Section 3.1(f).


 


“Closing” means
the closing of the purchase and sale of the Securities pursuant to Section 2.1.


 


“Closing Date”
means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto,
and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event earlier than the third Trading
Day following the date of this Agreement.


 


“Code” shall have
the meaning ascribed to such term in Section 3.1(ii).


 


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


 


“Common Stock”
means the 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.


 


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


 


“Company Counsel”
means Fenwick & West LLP, with offices located at 801 California Street, Mountain View, CA 94041.


 


“Company Covered Person”
shall have the meaning ascribed to such term in Section 3.1(rr).


 


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


 


“Designated Holder”
means DSM International B.V.


 


“Disqualification Event”
shall have the meaning ascribed to such term in Section 3.1(rr).


 






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“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith.


 


“EGS” means Ellenoff
Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302.


 


“Effective Date”
shall have the meaning ascribed to such term in Section 3.1(j).


 


“Enforceability Exceptions”
shall have the meaning ascribed to such term in Section 3.1(d).


 


“Environmental Laws”
shall have the meaning ascribed to such term in Section 3.1(ff).


 


“EPA” shall have
the meaning ascribed to such term in Section 3.1(p).


 


“ERISA” shall have
the meaning ascribed to such term in Section 3.1(ii).


 


“Escrow Agent”
means Signature Bank, a New York State chartered bank, with offices at 261 Madison Avenue, New York, New York 10016.


 


“Escrow Agreement”
means the escrow agreement entered into prior to the date hereof, by and among the Company, the Escrow Agent and the Placement
Agent pursuant to which the Purchasers shall deposit Subscription Amounts with the Escrow Agent to be applied to the transactions
contemplated hereunder.


 


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


 


“Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any
stock or option plan or employee stock purchase plan duly adopted for such purpose, by a majority of the non-employee members of
the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services
rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding, or committed
for issuance, or as to which a dilution adjustment may be triggered, or the payment of interest or principal in shares of Common
Stock on securities which so provide, outstanding on the date of this Agreement, provided that such securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or
conversion price of such securities (other than in connection with stock splits or combinations or adjustments pursuant to anti-dilution
provisions existing on the date hereof) or to extend the term of such securities (other than amendments to or extensions of the
1.5% Senior Convertible Note (RS-10) issued by the Company to Total Energies Nouvelles Activités USA (f.k.a. Total Gas &
Power USA, SAS) on March 21, 2016 in the principal amount of $3,700,000 with a current maturity date of May 15, 2017), (c) securities
issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company,
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company as determined
in good faith by the Board and shall provide to the Company additional benefits in addition to the investment of funds, but shall
not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities, and (d) any securities issued to the Designated Holder in accordance with its
rights under the Stockholder Agreement.


 






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“FDA” shall have
the meaning ascribed to such term in Section 3.1(p).


 


“FDCA” shall have
the meaning ascribed to such term in Section 3.1(p).


 


“Financial Statements”
shall have the meaning ascribed to such term in Section 3.1(s).


 


“GAAP” shall have
the meaning ascribed to such term in Section 3.1(s).


 


“Government Official”
shall have the meaning ascribed to such term in Section 3.1(dd).


 


“Insolvent” shall
have the meaning ascribed to such term in Section 3.1(w).


 


“Intellectual Property”
shall have the meaning ascribed to such term in Section 3.1(r).


 


“IP License” means
(i) that certain License Agreement to be entered into by and between the Company and DSM International B.V., in the form of Exhibit
F-1 hereto, (ii) that certain Intellectual Property Escrow Agreement to be entered into by and between the Company and DSM
International B.V., in the form of Exhibit F-2 hereto, and (iii) that certain License Agreement to be entered into by and
between the Company and DSM International B.V., in the form of Exhibit F-3 hereto.


 


“Legend Removal Date”
shall have the meaning ascribed to such term in Section 4.1(c).


 


“Liens” means a
lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“Life Science Product”
shall have the meaning ascribed to such term in Section 3.1(p).


 


“Material Adverse Effect”
shall have the meaning assigned to such term in Section 3.1(a).


 






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“Material Contract”
shall have the meaning ascribed to such term in Section 3.1(l).


 


“Money Laundering Laws”
shall have the meaning ascribed to such term in Section 3.1(ee).


 


“OFAC” shall have
the meaning ascribed to such term in Section 3.1(ff).


 


“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.


 


“Placement Agent”
means Rodman & Renshaw, a unit of H.C. Wainwright & Co., LLC.


 


“Preemptive Rights Waivers”
means the written irrevocable waiver of any preemptive rights, right of first offer, right of first refusal, right of first investment,
co-investment rights or any similar rights (including related notice requirements) applicable to the transactions contemplated
by the Transaction Documents from each securityholder of the Company entitled thereto.


 


“Preferred Stock”
means, collectively, the 17.38% Series A Convertible Preferred Stock, the 17.38% Series B Convertible Preferred Stock and the Series
C Convertible Preferred Stock.


 


“Previously Disclosed”
shall have the meaning ascribed to such term in Section 3.1(k).


 


“Proceeding” means
an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.


 


“Prospectus” means
the final prospectus filed for the Registration Statement.


 


“Prospectus Supplement”
means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered
by the Company to each Purchaser at the Closing.


 


“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.8.


 


“Registration Statement”
means the effective registration statement with Commission file No. 333-203216 which registers the sale of the Series A Convertible
Preferred Stock to the Purchasers and Conversion Shares issuable upon conversion of the Series A Convertible Preferred Stock.


 


“Required Minimum”
means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future
pursuant to the Transaction Documents, including, without limitation, any Underlying Shares issuable upon exercise in full of all
Warrants or conversion in full of all shares of Preferred Stock, ignoring any conversion or exercise limits set forth therein,
and that any previously unconverted shares of Preferred Stock are held until the fifth anniversary of the Closing Date.


 






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“Registered Securities”
shall mean the Series A Convertible Preferred Stock and the Conversion Shares issuable upon conversion of the Series A Convertible
Preferred Stock.


 


“Rule 144” means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as
such Rule.


 


“Rule 424” means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as
such Rule.


 


“SEC Documents”
shall have the meaning ascribed to such term in Section 3.1(k).


 


“SEC Rules” shall
have the meaning ascribed to such term in Section 3.1(k).


 


“Security Holder Agreement”
means the security holder agreement, dated May __, 2017, between the Company and those certain stockholders of the Company relating
to the exchange of certain of such stockholders’ respective shares of Common Stock for shares of Series C Convertible Preferred
Stock (such transaction, the “Exchange”).


 


“Securities” means
the Preferred Stock, the Conversion Shares, the Warrants and the Warrant Shares.


 


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


 


“Series A Certificate of
Designation” means the Certificate of Designation of Preferences, Rights and Limitations of Series A 17.38% Convertible
Preferred Stock in the form of Exhibit A-1 hereto.


 


“Series A Convertible Preferred
Stock” means up to 22,140 registered shares of the Company’s 17.38% Series A Convertible Preferred Stock issued
hereunder having the rights, preferences and privileges set forth in the Series A Certificate of Designation.


 


“Series B Certificate of
Designation” means the Certificate of Designation of Preferences, Rights and Limitations of Series B 17.38% Convertible
Preferred Stock in the form of Exhibit A-2 hereto.


 






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“Series B Convertible Preferred
Stock” means up to 105,204 unregistered shares of the Company’s 17.38% Series B Convertible Preferred Stock issued
hereunder having the rights, preferences and privileges set forth in the Series B Certificate of Designation.


 


“Series C Certificate of
Designation” means the Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred
Stock in the form of Exhibit A-3 hereto.


 


“Series C Convertible Preferred
Stock” means up to 20,921 unregistered shares of the Company’s Series C Convertible Preferred Stock issued hereunder
having the rights, preferences and privileges set forth in the Series C Certificate of Designation.


 


“Stockholder Approval”
means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity)
from the stockholders of the Company with respect to (i) the capital reverse stock split of the Company’s outstanding Common
Stock and (ii) the transactions contemplated by the Transaction Documents, including the authorization and issuance of all of the
Underlying Shares in excess of 56,891,673 shares of Common Stock (subject to adjustment for forward and reverse stock splits, recapitalizations
and the like).


 


“Short Sales” means
all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
locating and/or borrowing shares of Common Stock). 


 


“Stated Value”
means $1,000 per share of Preferred Stock.


 


“Stockholder Agreement”
means the stockholder agreement to be entered into by and between the Company and DSM International B.V., related to certain additional
rights and obligations in connection with the issuance of the Securities, in the form of Exhibit E hereto.


 


“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Preferred Stock and Warrants purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.


 


“subsidiary” means
any subsidiary of the Company listed on Exhibit 21.01 to the Company’s Annual Report on Form 10-K for the year ended December 31,
2016, and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after December
31, 2016.


 


“Tax” and “Taxes”
shall have the meaning ascribed to such term in Section 3.1(aa).


 


“Tax Returns” shall
have the meaning ascribed to such term in Section 3.1(aa).


 






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“Trading Day” means
a day on which the principal Trading Market is open for trading.


 


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


 


“Transaction Documents”
means this Agreement, the Certificates of Designation, the Warrants, the Voting Agreement, the Security Holder Agreement, the Stockholder
Agreement, the IP License, all exhibits and schedules thereto and hereto, and any other documents or agreements executed in connection
with the transactions contemplated hereunder.


 


“Transfer Agent”
means Wells Fargo Shareholder Services, the current transfer agent of the Company, with a mailing address of 1110 Centre Point
Curve, Suite 101, Mendota Heights, MN 55120 and a telephone number of (855) 217-6361, and any successor transfer agent of the Company.


 


“TSCA” shall have
the meaning ascribed to such term in Section 3.1(p).


 


“Underlying Shares”
means the shares of Common Stock issued and issuable upon conversion of the Preferred Stock and upon exercise of the Warrants and
issued and issuable in lieu of the cash payment of dividends on the Preferred Stock or the Make-Whole Payment, in each case, in
accordance with the terms of the applicable Certificates of Designation.


 


“Unregistered Securities”
shall mean, collectively, the Series B Convertible Preferred Stock, the Series C Convertible Preferred Stock, the Conversion Shares
issuable upon conversion of the Series B Convertible Preferred Stock and the Series C Convertible Preferred Stock, the Warrants
and the Warrant Shares.


 


“Voting Agreement”
means the irrevocable agreement from stockholders of the Company that beneficially own more than 50% of the shares of Common Stock
outstanding as of immediately prior to the Closing, dated May __, 2017, to vote all of their respective shares of Common Stock
and Series C Convertible Preferred Stock in favor of the approval of the Stockholder Resolutions at the Stockholder Meeting.


 


“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 in the “Pink Sheets” published by OTC Markets Group, Inc. (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 Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.


 






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“Warrants” means,
collectively, the Cash Warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)(v) hereof and the
Anti-Dilution Warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)(vi) hereof, which Warrants
shall be exercisable upon receipt of Stockholder Approval and shall have a term of exercise equal to five years from Stockholder
Approval Date, in the form of Exhibit C-1 and Exhibit C-2 attached hereto, respectively.


 


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


 


1.2             
General Interpretive Principles.


 


(a)            
The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall
not be construed to affect the meaning, construction or effect hereof.


 


(b)           
Unless otherwise specified, the terms “hereof,” “herein” and similar terms refer to this Agreement
as a whole, and references herein to Articles or Sections refer to Articles or Sections of this Agreement.


 


(c)            
For purposes of this Agreement, the words, “include,” “includes” and “including,” when
used herein, shall be deemed in each case to be followed by the words “without limitation.”


 


(d)           
The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question
of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or
burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement.


 


ARTICLE II.

PURCHASE AND SALE


 


2.1           
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent
with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and each of the Purchasers,
severally and not jointly, agrees to purchase, that number of shares of Series A Convertible Preferred Stock and/or Series B Convertible
Preferred Stock and Warrants as set forth on such Purchaser’s signature page hereto. Each Purchaser shall indicate on its
signature page hereto its purchase of (or combination thereof):


 






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(a)            
Up to, in the aggregate among all Purchasers, $22,140,000 Stated Value of Series A Convertible Preferred Stock; and/or


 


(b)           
Up to, in the aggregate among all Purchasers, $65,203,875.64 Stated Value of Series B Convertible Preferred Stock.


 


The Company shall deliver to each Purchaser
its respective Preferred Stock and a Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall
deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions
set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of EGS or such other location as the parties shall mutually
agree. The Company covenants that, if the Purchaser delivers a Notice of Conversion (as defined in the applicable Series A Certificate
of Designation) to convert any shares of Series A Convertible Preferred Stock between the date hereof and noon (Eastern time) on
the Closing Date, the Company shall deliver Conversion Shares to the Purchaser in connection with such Notice of Conversion on
the earlier of (i) one Trading Day after the Closing Date and (ii) the expiration of the Standard Settlement Period (as defined
below) with respect to such Notice of Conversion.


 


2.2           
Deliveries.


 


(a)            
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:


 


(i)             
this Agreement, duly executed by the Company;


 


(ii)           
a legal opinion of Company Counsel, substantially in the form of Exhibit B attached hereto;


 


(iii)         
[reserved];


 


(iv)         
a certificate in the form attached hereto as Exhibit D evidencing a number of shares of applicable Preferred Stock
equal to such Purchaser’s Subscription Amount divided by the Stated Value, registered in the name of such Purchaser and evidence
of the filing and acceptance of the Certificates of Designation from the Secretary of State of Delaware; provided that the Stated
Value of all Series A Convertible Preferred Stock issuable hereunder shall not exceed, in the aggregate, $23,877,000;


 


(v)           
(x) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50%
of such Purchaser’s Conversion Shares underlying its Preferred Stock, with an exercise price equal to $0.52, subject to adjustment
therein, and (y) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal
to 50% of such Purchaser’s Conversion Shares underlying its Preferred Stock, with an exercise price equal to $0.62, subject
to adjustment therein (the Warrants contemplated by clauses (x) and (y), collectively, the “Cash Warrants”);


 






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(vi)         
a Warrant registered in the name of such Purchaser to purchase shares of Common Stock pursuant to the anti-dilution formula
set forth therein, with an exercise price equal to $0.0001, subject to adjustment therein (collectively, the “Anti-Dilution
Warrants”);


 


(vii)       
duly executed copies of the Voting Agreement, the Preemptive Rights Waivers and the Security Holder Agreement, and, solely
to the Designated Holder, the Stockholder Agreement and the IP License, and each of such agreements shall be in full force and
effect without any amendment or modification thereto or waiver of any of the Company’s rights thereunder;


 


(viii)     
a certificate signed by the Company’s Chief Executive Officer and Chief Financial Officer to the effect that the conditions
specified in Section 2.3(b) (other than clause (iii) thereof) have been satisfied in full;


 


(ix)         
evidence in a form reasonably satisfactory to the Purchasers that the Exchange has been consummated in accordance with the
terms of the Security Holder Agreement;


 


(x)           
a certificate signed by the Company’s secretary or assistant secretary certifying the resolutions of the Company’s
Board of Directors (or any duly authorized committee thereof) that approve the transactions contemplated by this Agreement and
the other Transaction Documents; and


 


(xi)         
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).


 


(b)           
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:


 


(i)             
this Agreement, duly executed by such Purchaser and, in the case of the Designated Holder, the Stockholder Agreement and
the IP License, duly executed by the Designated Holder; and


 


(ii)           
such Purchaser’s Subscription Amount (A) by wire transfer to the account specified in writing by the Escrow Agent,
or (B) of not more than $40,250,000 in the aggregate Subscription Amounts for all Purchasers, by cancellation of existing indebtedness
(including accrued and unpaid interest thereon) of the Company owed to such Purchaser.


 


2.3           
Closing Conditions.


 


(a)       The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:


 






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(i)             
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date);


 


(ii)           
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall
have been performed;


 


(iii)         
the Series A Certificate of Designation, Series B Certificate of Designation and Series C Certificate of Designation shall
have been filed with the Delaware Secretary of State; and


 


(iv)         
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.


 


(b)           
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions
being met:


 


(i)             
(Y) the accuracy in all but deminimis respects when made and on the Closing Date of the representations and warranties
set forth in Section 3.1(a), (c), (d), (g), (h), (i), (m), (q) and (kk) through (tt) (unless as of a specific date therein in which
case they shall be accurate in all but deminimis respects as of such date) and (Z) the accuracy in all material respects
(or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when
made and on the Closing Date of the other representations and warranties of the Company contained herein (unless as of a specific
date therein in which case they shall be accurate as of such date);


 


(ii)           
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall
have been performed;


 


(iii)         
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;


 


(iv)         
the Series A Certificate of Designation, Series B Certificate of Designation and Series C Certificate of Designation shall
have been filed with the Delaware Secretary of State;


 


(v)           
there shall have been no Material Adverse Effect with respect to the Company since the date hereof;


 


(vi)         
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or
the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported
by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose
trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the
United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or
other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market
which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities
at the Closing;


 






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(vii)       
the Company shall have terminated that certain Cooperation Agreement dated as of October 26, 2016 between the Company and
Nenter & Co., Inc.; and


 


(viii)     
the Exchange shall have been consummated in accordance with the terms of the Security Holder Agreement, and there shall
have been no breach of any provisions in the Voting Agreement, the Preemptive Rights Waivers or the Security Holder Agreement.


 


ARTICLE III.

REPRESENTATIONS AND WARRANTIES


 


3.1           
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure
Schedules shall be deemed a part hereof and shall qualify any representation or warranty otherwise made herein to the extent of
the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations
and warranties to each Purchaser:


 


(a)            
Organization and Standing. The Company and each of its subsidiaries is duly incorporated, validly existing, and in
good standing under the laws of the jurisdiction of its organization. Each of the Company and its subsidiaries has all requisite
power and authority to own and operate its respective properties and assets and to carry on its respective business as presently
conducted and as proposed to be conducted. The Company and each of its subsidiaries is qualified to do business as a foreign entity
in every jurisdiction in which the failure to be so qualified would have, or would reasonably be expected to have, a material adverse
effect, individually or in the aggregate, upon the business, properties, tangible and intangible assets, liabilities, operations,
prospects, financial condition or results of operation of the Company and its subsidiaries or the ability of the Company or any
of its subsidiaries to perform their respective obligations under the Transaction Documents (a “Material Adverse Effect”).


 


(b)           
Subsidiaries. As used in this Agreement, references to any “subsidiary” of a specified Person shall refer
to an Affiliate controlled by such Person directly, or indirectly through one or more intermediaries, as such terms are used in
and construed under Rule 405 under the Securities Act (which, for the avoidance of doubt, shall include the Company’s controlled
joint ventures, including shared-controlled joint ventures). The Company’s subsidiaries, as of the date hereof, are listed
on Exhibit 21.01 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 and, except as Previously
Disclosed (as defined in Section 3.1(k)) are the only subsidiaries, direct or indirect, of the Company as of the date hereof. All
the issued and outstanding shares of each subsidiary’s capital stock have been duly authorized and validly issued, are fully
paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation
of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and, except as set forth on Section
3.1(b) of the Disclosure Schedules or as Previously Disclosed, are owned by the Company or a Company subsidiary free and clear
of all liens, encumbrances and equities and claims.


 






    	 	13	 



     


    

(c)            
Power. The Company has all requisite power to execute and deliver this Agreement, to sell and issue the Securities
hereunder, and to carry out and perform its obligations under the terms of the Transaction Documents.


 


(d)           
Authorization. The execution, delivery, and performance of the Transaction Documents by the Company has been duly
authorized by all requisite action on the part of the Company and its officers, directors and stockholders, and this Agreement
constitutes, and the other Transaction Documents will constitute, legal, valid, and binding obligations of the Company enforceable
in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors’ rights generally, and (b) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies (together, the “Enforceability
Exceptions”).


 


(e)            
Consents and Approvals. Except for any Current Report on Form 8-K or Notice of Exempt Offering of Securities on Form
D to be filed by the Company in connection with the transactions contemplated hereby, or except as set forth on Section 3.1(e)
of the Disclosure Schedules, the Company is not required to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by the Transaction
Documents. Assuming the accuracy of the representations of the Purchaser set forth herein, no consent, approval, authorization
or other order of, or registration, qualification or filing with, any court, regulatory body, administrative agency, self-regulatory
organization, stock exchange or market (including The NASDAQ Stock Market), or other governmental body is required for the execution
and delivery of the Transaction Documents, the valid issuance, sale and delivery of the Securities to be sold pursuant to this
Agreement other than such as have been made or obtained, or for any securities filings required to be made under federal or state
securities laws applicable to the offering of the Securities.


 






    	 	14	 



     


    

(f)            
Non-Contravention. The execution and delivery of the Transaction Documents, the issuance, sale and delivery of the
Securities to be sold by the Company under this Agreement, the performance by the Company of its obligations under the Transaction
Documents and/or the consummation of the transactions contemplated thereby will not (i) conflict with, result in the breach
or violation of, or constitute (with or without the giving of notice or the passage of time or both) a violation of, or default
under, (A) any bond, debenture, note or other evidence of indebtedness, or under any lease, license, franchise, permit, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which the Company or any subsidiary
is a party or by which it or its properties may be bound or affected, (B) the Company’s Restated Certificate of Incorporation,
as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws,
as amended and as in effect on the date hereof (the “Bylaws”), or the equivalent document with respect to any
subsidiary, as amended and as in effect on the date hereof, or (C) any statute or law, judgment, decree, rule, regulation,
ordinance or order of any court or governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration
panel or authority applicable to the Company, any of its subsidiaries or their respective properties, except in the case of clauses
(A) and (C) for such conflicts, breaches, violations or defaults that would not be likely to have, individually or in
the aggregate, a Material Adverse Effect, or (ii) result in the creation or imposition of any lien, encumbrance, claim, security
interest or restriction whatsoever upon any of the material properties or assets of the Company or any of its subsidiaries or an
acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any material bond, debenture, note
or any other evidence of indebtedness or any material indenture, mortgage, deed of trust or any other agreement or instrument to
which the Company or any if its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company is subject. For purposes of this Section (f)1(f), the term “material”
shall apply to agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by
which it is bound involving obligations (contingent or otherwise) of, or payments to, the Company in excess of $100,000 in a consecutive
12-month period.


 


(g)           
Shares. The Preferred Stock are duly authorized and when issued pursuant to the terms of this Agreement will be validly
issued, fully paid, and nonassessable, and will be free of any liens or encumbrances with respect to the issuance thereof; provided,
however, that the Preferred Stock shall be subject to restrictions on transfer under state or federal securities laws as set forth
in this Agreement, or as otherwise may be required under state or federal securities laws as set forth in this Agreement at the
time a transfer is proposed. The Conversion Shares issuable upon conversion of the Preferred Stock shall be, subject to receipt
of the Stockholder Approval in the case of the Series B Convertible Preferred Stock and the Series Convertible C Preferred Stock,
duly authorized and when issued pursuant to the terms of the applicable Certificates of Designation will be validly issued, fully
paid, and nonassessable, and will be free of any liens or encumbrances with respect to the issuance thereof; provided, however,
that the Conversion Shares shall be subject to restrictions on transfer under state or federal securities laws as set forth in
this Agreement, or as otherwise may be required under state or federal securities laws as set forth in this Agreement at the time
a transfer is proposed. Except as set forth on Section 3.1(g) of the Disclosure Schedules, the issuance and delivery of the Preferred
Stock and the Conversion Shares issuable upon conversion thereof is not subject to preemptive, co-sale, right of first refusal
or any other similar rights of the stockholders of the Company or any other Person, or any liens or encumbrances or result in the
triggering of any anti-dilution or other similar rights under any outstanding securities of the Company.


 






    	 	15	 



     


    

(h)           
Authorization of the Warrants. The Warrants have been duly authorized by the Company and, when duly executed and
delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to the Enforceability Exceptions.


 


(i)             
Authorization of the Warrant Shares. The Warrant Shares issuable upon exercise of the Warrants have been, subject
to receipt of the Stockholder Approval, duly authorized and reserved for issuance upon exercise by all necessary corporate action
and such shares, when issued upon such exercise in accordance of the terms of the Warrants, will be validly issued and will be
fully paid and non-assessable, and will be free of any liens or encumbrances with respect to the issuance thereof; provided, however,
that the Warrant Shares shall be subject to restrictions on transfer under state or federal securities laws as set forth in this
Agreement, or as otherwise may be required under state or federal securities laws as set forth in this Agreement at the time a
transfer is proposed. Except as set forth on Section 3.1(i) of the Disclosure Schedules, the issuance and delivery of the Warrant
Shares is not subject to preemptive, co-sale, right of first refusal or any other similar rights of the stockholders of the Company
or any other Person, or any liens or encumbrances or result in the triggering of any anti-dilution or other similar rights under
any outstanding securities of the Company.


 


(j)             
Registration. Assuming the accuracy of each of the representations and warranties of the Purchaser herein, the issuance
by the Company of the Securities (other than the shares of Series A Convertible Preferred Stock and the Conversion Shares issuable
thereunder, which shall be registered) is exempt from registration under the Securities Act. The Company has prepared and filed
the Registration Statement in conformity with the requirements of the Securities Act, which became effective on April 15,
2015 (the “Effective Date”), including the Prospectus, and such amendments and supplements thereto as may have
been required to the date of this Agreement. The Registration Statement is effective under the Securities Act and no stop order
preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus
has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company,
are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus
with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective,
at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will
conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company was at the
time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities
Act and it meets the transaction requirements with respect to the aggregate market value of securities being sold pursuant to this
offering.


 






    	 	16	 



     


    

(k)           
Reporting Status. The Company is subject to the reporting requirements of the Exchange Act, and the Company has,
in a timely manner, filed all documents and reports that the Company was required to file pursuant to Section I.A.3.b of the General
Instructions to Form S-3 promulgated under the Securities Act in order for the Company to be eligible to use Form S-3 for the two
years preceding the Closing Date or such shorter time period as the Company has been subject to such reporting requirements (the
foregoing materials, together with any materials filed by the Company under the Exchange Act, whether or not required, collectively,
the “SEC Documents”). The SEC Documents complied as to form in all material respects with requirements
of the Securities Act and Exchange Act and the rules and regulations of the SEC promulgated thereunder (collectively, the “SEC
Rules”), and none of the SEC Documents and the information contained therein, as of their respective filing dates, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading. As used in this Agreement,
“Previously Disclosed” means information set forth in or incorporated by reference into the SEC Documents filed
with the SEC on or after December 31, 2016 but prior to the date hereof (except for risks and forward-looking information set forth
in the “Risk Factors” section of the applicable SEC Documents or in any forward-looking statement disclaimers or similar
statements that are similarly non-specific and are predictive or forward-looking in nature).


 


(l)             
Contracts. Each indenture, contract, lease, mortgage, deed of trust, note agreement, loan or other agreement or instrument
of a character that is required to be described or summarized in the SEC Documents or to be filed as an exhibit to the SEC Documents
under the SEC Rules (collectively, the “Material Contracts”) is so described, summarized or filed. The Material
Contracts to which the Company or its subsidiaries are a party have been duly and validly authorized, executed and delivered by
the Company and constitute the legal, valid and binding agreements of the Company or its subsidiaries, as applicable, enforceable
by and against the Company or its subsidiaries, as applicable, in accordance with their respective terms, subject to the Enforceability
Exceptions. The Company is not party to any contract, side letter, arrangement, agreement or understanding with any Purchaser related
to the transactions contemplated by the Transaction Documents, other than this Agreement, the Certificates of Designation, the
Warrants, the Security Holder Agreement, the Stockholder Agreement, the IP License, the Voting Agreement and all exhibits and schedules
thereto and hereto.


 






    	 	17	 



     


    

(m)         
Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (a) 500,000,000
shares of Common Stock, 298,712,538 shares of which are issued and outstanding as of the date hereof, and (b) 5,000,000 shares
of Preferred Stock, $0.0001 par value per share, of which no shares are issued and outstanding as of the date hereof. All subscriptions,
warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities
of the Company issued and outstanding as of the date hereof, or contracts, commitments, understandings, or arrangements by which
the Company or any of its subsidiaries is or may be obligated to issue shares of capital stock, or securities or rights convertible
or exchangeable for shares of capital stock, are as set forth in the SEC Documents. Taking into account all rights and agreements
described in the immediately preceding sentence and any applicable anti-dilution provisions in any such agreement, immediately
after the Closing and after giving effect to the consummation of this offering of the Securities, there will be (i) 277,791,960
shares of Common Stock issued and outstanding (assuming consummation of the Exchange but without taking into account any other
conversion, exchange or exercise of (x) any Common Stock Equivalents outstanding as of the date hereof or (y) any shares of Series
A Convertible Preferred Stock occurring after the date hereof) and (ii) a maximum of 445,313,492 shares of Common Stock issuable
upon conversion, exchange or exercise of all outstanding securities of the Company (including, without limitation, all Common Stock
Equivalents) that are convertible into, exercisable or exchangeable for, settled in, or may be paid or repaid with, shares of Common
Stock. The issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued, are
fully paid and nonassessable, have been issued in compliance with all applicable federal and state securities laws, and were not
issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities. Except as set
forth in Section 3.1(m) of the Disclosure Schedules, no holder of the Company’s capital stock is entitled to preemptive or
similar rights. Except as Previously Disclosed, there are no bonds, debentures, notes or other indebtedness having general voting
rights (or convertible into securities having such rights) of the Company issued and outstanding. Except as Previously Disclosed
or as contemplated by this Agreement or the Stockholder Agreement, there are no agreements or arrangements under which the Company
or any of its subsidiaries is obligated to register the sale of any of their securities under the Securities Act. The Company has
made available to the Purchaser, a true, correct and complete copy of the Company’s Certificate of Incorporation and Bylaws.


 


(n)           
Legal Proceedings. Except as Previously Disclosed, there is no Proceeding before any court, governmental agency or
body, domestic or foreign, now pending or, to the knowledge of the Company, threatened against the Company or its subsidiaries
wherein an unfavorable decision, ruling or finding would reasonably be expected to, individually or in the aggregate, (i) materially
adversely affect the validity or enforceability of, or the authority or ability of the Company to perform its obligations under,
this Agreement or (ii) have a Material Adverse Effect. The Company is not a party to or subject to the provisions of any injunction,
judgment, decree or order of any court, regulatory body, administrative agency or other governmental agency or body that might
have, individually or in the aggregate, a Material Adverse Effect.


 






    	 	18	 



     


    

(o)           
No Violations. Neither the Company nor any of its subsidiaries is in violation of its respective certificate of incorporation,
bylaws or other organizational documents, or to its knowledge, is in violation of any statute or law, judgment, decree, rule, regulation,
ordinance or order of any court or governmental or regulatory body (including, except as Previously Disclosed, The NASDAQ Stock
Market), governmental agency, arbitration panel or authority applicable to the Company or any of its subsidiaries, which violation,
individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. Neither the Company nor any of
its subsidiaries is in default (and there exists no condition which, with or without the passage of time or giving of notice or
both, would constitute a default) in the performance of any bond, debenture, note or any other evidence of indebtedness in any
indenture, mortgage, deed of trust or any other material agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or by which the properties of the Company are bound, which
would be reasonably likely to have a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is
not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of
the Company and the Company is not an “ineligible issuer” pursuant to Rules 164, 405 and 433 under the Securities Act.
The Company has not received any comment letter from the SEC relating to any SEC Documents which has not been finally resolved.
The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company
under the Exchange Act or the Securities Act.


 


(p)           
Governmental Permits; FDA Matters.


 


(i)             
Permits. The Company and its subsidiaries possess all necessary franchises, licenses, certificates and other authorizations
from any foreign, federal, state or local government or governmental agency, department or body that are currently necessary for
the operation of their respective businesses as currently conducted, except where such failure to possess would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or modification of any such permit which, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.


 


(ii)           
EPA and FDA Matters. As to each of the manufacturing processes, intermediate products and research or commercial
products of the Company and each of its subsidiaries, including, without limitation, products or compounds currently under research
and/or development by the Company, subject to the jurisdiction of the United States Environmental Protection Agency (“EPA”)
under the Toxic Substances Control Act and regulations thereunder (“TSCA”) or the Food and Drug Administration
(“FDA”) under the Federal Food, Drug and Cosmetic Act and the regulations thereunder (“FDCA”)
(each such product, a “Life Science Product”), such Life Science Product is being researched, developed, manufactured,
tested, distributed and/or marketed in compliance in all material respects with all applicable requirements under the FDCA and
TSCA and similar laws and regulations applicable to such Life Science Product, including those relating to investigational use,
premarket approval, good manufacturing practices, labeling, advertising, record keeping, filing of reports and security. The Company
has not received any notice or other communication from the FDA, EPA or any other federal, state or foreign governmental entity
(i) contesting the premarket approval of, the uses of or the labeling and promotion of any Life Science Product or (ii) otherwise
alleging any violation by the Company of any law, regulation or other legal provision applicable to a Life Science Product. Neither
the Company, nor any officer, employee or agent of the Company has made an untrue statement of a material fact or fraudulent statement
to the FDA or other federal, state or foreign governmental entity performing similar or equivalent functions or failed to disclose
a material fact required to be disclosed to the FDA or such other federal, state or foreign governmental entity.


 


(q)           
Listing Compliance. Except as Previously Disclosed, the Company is in compliance with the requirements of The NASDAQ
Stock Market LLC for continued listing of the Common Stock thereon and has no knowledge of any facts or circumstances that could
reasonably lead to delisting of its Common Stock from The NASDAQ Stock Market. The Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or the listing of the Common
Stock on The NASDAQ Stock Market, nor has the Company received any notification that the SEC or The NASDAQ Stock Market is contemplating
terminating such registration or listing. The transactions contemplated by the Transaction Documents will not contravene the rules
and regulations of The NASDAQ Stock Market. The Company will comply with all requirements of The NASDAQ Stock Market with respect
to the issuance of the Securities, including the filing of any listing notice with respect to the issuance of the Securities.


 






    	 	19	 



     


    

(r)            
Intellectual Property.


 


(i)             
Except as set forth in Section 3.1(r) of the Disclosure Schedules or as otherwise Previously Disclosed, or as otherwise
would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, Company and/or its subsidiaries
owns or possesses, free and clear of all encumbrances, all legal rights to all intellectual property and industrial property rights
and rights in confidential information, including all (A) patents, patent applications, invention disclosures, and all related
continuations, continuations-in-part, divisional, reissues, re-examinations, substitutions and extensions thereof, (B) trademarks,
trademark rights, service marks, service mark rights, corporate names, trade names, trade name rights, domain names, logos, slogans,
trade dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by and of
the foregoing, (C) trade secrets and all other confidential information, ideas, know-how, inventions, proprietary processes, formulae,
models, and other methodologies, (D) copyrights, (E) computer programs (whether in object code, subject code or other form), algorithms,
databases, compilations and data, technology supporting the foregoing, and all related documentation, (F) licenses to any
of the foregoing, and (G) all applications and registrations of the foregoing, and (H) all other similar proprietary rights (collectively,
“Intellectual Property”) used or held for use in, or necessary for the conduct of their businesses as now conducted
and as proposed to be conducted, and neither the Company nor any of its subsidiaries (1) has received any communications alleging
that either the Company or any of its subsidiaries has violated, infringed or misappropriated or, by conducting their businesses
as now conducted and as proposed to be conducted, would violate, infringe or misappropriate any of the Intellectual Property of
any other Person, (2) knows of any claim that the Company or any of its subsidiaries has violated, infringed or misappropriated,
or, by conducting their businesses as now conducted and as proposed to be conducted, would violate, infringe or misappropriate
any of the Intellectual Property of any other Person, and (3) knows of any third-party infringement, misappropriation or violation
of any Company or any Company subsidiary’s Intellectual Property. The Company has taken and takes reasonable security measures
to protect the secrecy, confidentiality and value of its Intellectual Property, including requiring all Persons with access thereto
to enter into appropriate non-disclosure agreements. To the knowledge of the Company, there has not been any disclosure of any
material trade secret of the Company or a Company subsidiary (including any such information of any other Person disclosed in confidence
to the Company) to any other Person in a manner that has resulted or is likely to result in the loss of trade secret in and to
such information. Except as Previously Disclosed, and except as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, there are no outstanding options, licenses or agreements, claims, encumbrances or shared
ownership interests of any kind relating to the Company’s or its subsidiaries’ Intellectual Property, nor is the Company
or its subsidiaries bound by or a party to any options, licenses or agreements of any kind with respect to the Intellectual Property
of any other Person.


 






    	 	20	 



     


    

(ii)           
To the Company’s knowledge, none of the employees of the Company or its subsidiaries are obligated under any contract
(including, without limitation, licenses, covenants or commitments of any nature or contracts entered into with prior employers),
or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or
her best efforts to promote the interests of the Company or its subsidiaries or would conflict with their businesses as now conducted
and as proposed to be conducted. Neither the execution nor delivery of the Transaction Documents will conflict with or result in
a breach of the terms, conditions or provisions of, or constitute a default under any contract, covenant or instrument under which
the Company or its subsidiaries or any of the employees of the Company or its subsidiaries is now obligated, and neither the Company
nor its subsidiaries will need to use any inventions that any of its employees, or Persons it currently intends to employ, have
made prior to their employment with the Company or its subsidiaries, except for inventions that have been assigned or licensed
to the Company or its subsidiaries as of the date hereof. Each current and former employee or contractor of the Company or its
subsidiaries that has developed any Intellectual Property owned or purported to be owned by the Company or its subsidiaries has
executed and delivered to the Company a valid and enforceable Invention Assignment and Confidentiality Agreement that (A) assigns
to the Company or such subsidiaries all right, title and interest in and to any Intellectual Property rights arising from or developed
or delivered to the Company or such subsidiaries in connection with such Person’s work for or on behalf of the Company or
such subsidiaries, and (B) provides reasonable protection for the trade secrets, know-how and other confidential information (1)
of the Company or such subsidiaries and (2) of any third party that has disclosed same to the Company or such subsidiaries. To
the knowledge of the Company, no current or former employee, officer, consultant or contractor is in default or breach of any term
of any employment, consulting or contractor agreement, non-disclosure agreement, assignment agreement, or similar agreement. Except
as Previously Disclosed, to the knowledge of the Company, no present or former employee, officer, consultant or contractor of the
Company has any ownership, license or other right, title or interest, directly or indirectly, in whole or in part, in any Intellectual
Property that is owned or purported to be owned, in whole or part, by the Company or its subsidiaries.


 






    	 	21	 



     


    

(s)            
Financial Statements. The consolidated financial statements of the Company and its subsidiaries and the related notes
thereto included in the SEC Documents (the “Financial Statements”) comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and present
fairly, in all material respects, the financial position of the Company and its subsidiaries as of the dates indicated and the
results of its operations and cash flows for the periods therein specified subject, in the case of unaudited statements, to normal
year-end audit adjustments. Except as set forth in such Financial Statements (or the notes thereto), such Financial Statements
(including the related notes) have been prepared in accordance with U.S. generally accepted accounting principles applied on a
consistent basis throughout the periods therein specified (“GAAP”). Except as set forth in the Financial Statements,
neither the Company nor its subsidiaries has any material liabilities other than liabilities and obligations that have arisen in
the ordinary course of business and which would not be required to be reflected in financial statements prepared in accordance
with GAAP.


 


(t)             
Accountants. PricewaterhouseCoopers LLP, which has expressed its opinion with respect to the consolidated financial
statements contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016, are registered
independent public accountants as required by the Exchange Act and the rules and regulations promulgated thereunder (and by the
rules of the Public Company Accounting Oversight Board).


 


(u)           
Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company has disclosure controls and procedures (as defined in
Rules 13a-14 and 15d-14 under the Exchange Act) that are effective and designed to ensure that (1) information required
to be disclosed in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified by the SEC Rules, and (2) such information is accumulated and communicated to the Company’s
management, including its principal executive officer and principal financial officer, to allow timely decisions regarding required
disclosure. The Company is otherwise in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley
Act of 2002, as amended and the rules and regulations promulgated thereunder.


 






    	 	22	 



     


    

(v)           
Off-Balance Sheet Arrangements. There is no transaction, arrangement or other relationship between the Company or
its subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in its
Exchange Act filings and is not so disclosed or that otherwise would be reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect. There are no such transactions, arrangements or other relationships with the Company that may create
contingencies or liabilities that are not otherwise disclosed by the Company in its Exchange Act filings.


 


(w)          
No Material Adverse Change.


 


(i)             
Except as Previously Disclosed, in each case, filed or made through and including the date hereof, since December 31, 2016:


 


(A)        there
has not been any event, occurrence or development that, individually or in the aggregate, has had or that could reasonably
be expected to result in a Material Adverse Effect,


 


(B)       the
Company has not incurred any liabilities (contingent or otherwise) other than (1) trade payables and accrued expenses incurred
in the ordinary course of business consistent with past practice and (2) liabilities not required to be reflected in the Company's
financial statements pursuant to GAAP or not required to be disclosed in filings made with the SEC,


 


(C)       the
Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock other than routine withholding in accordance with
the Company’s existing stock-based plan,


 






    	 	23	 



     


    

(D)       the
Company has not altered its method of accounting or the identity of its auditors, except as Previously Disclosed,


 


(E)       the
Company has not issued any equity securities except pursuant to the Company’s existing stock based plans, upon conversion
or repayment of the Company’s existing convertible debt securities or as otherwise Previously Disclosed; and


 


(F)       there
has not been any loss or damage (whether or not insured) to the physical property of the Company or any of its subsidiaries.


 


(ii)           
The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the
Closing, will not be Insolvent (as defined below). For purposes of this Section, “Insolvent” means, with respect
to any Person, (i) the present fair saleable value of such Person’s assets is less than the amount required to pay such Person’s
total indebtedness, (ii) such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured, (iii) such Person intends to incur or believes that it will incur debts that
would be beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is currently proposed to be conducted. Assuming the successful
execution of the Company’s business plan as of the date hereof, not more than $100 million of capital funding is required
to meet the Company’s estimated operating expenses and other planned working capital and capital expenditure requirements
through December 31, 2018.


 


(iii)         
The Company has not incurred any obligation or liability (contingent or otherwise) under this Agreement, or any of the documents
or instruments contemplated hereby, with actual intent to hinder, delay or defraud either present or future creditors of the Company
or any of its subsidiaries.


 


(x)           
No Manipulation of Stock. Neither the Company nor any of its subsidiaries, nor to the Company’s knowledge,
any of their respective officers, directors, employees, Affiliates or controlling Persons has taken and will not, in violation
of applicable law, take, any action designed to or that might reasonably be expected to, directly or indirectly, cause or result
in stabilization or manipulation of the price of the Common Stock.


 


(y)           
Insurance. The Company and its subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and its subsidiaries
are engaged. The Company and its subsidiaries will continue to maintain such insurance or substantially similar insurance,
which covers the same risks at the same levels as the existing insurance with insurers which guarantee the same financial responsibility
as the current insurers, and neither the Company nor any subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business without a significant increase in cost.


 






    	 	24	 



     


    

(z)            
Properties. Except as Previously Disclosed, the Company and its subsidiaries have good and marketable title to all
the properties and assets (both tangible and intangible) described as owned by them in the consolidated financial statements included
in the SEC Documents, free and clear of all liens, mortgages, pledges, or encumbrances of any kind except (A) those, if any,
reflected in such consolidated financial statements (including the notes thereto), or (B) those that are not material in amount
and do not adversely affect the use made and proposed to be made of such property by the Company or its subsidiaries. The Company
and each of its subsidiaries hold their leased properties under valid and binding leases. The Company and each of its subsidiaries
own or lease all such properties as are necessary to its operations as now conducted.


 


(aa)         
Tax Matters. The Company and its subsidiaries have filed all Tax Returns, and these Tax Returns are true, correct,
and complete in all material respects. The Company and each subsidiary (i) have paid all Taxes that are due from the Company or
such subsidiary for the periods covered by the Tax Returns or (ii) have duly and fully provided reserves adequate to pay all Taxes
in accordance with GAAP. No agreement as to indemnification for, contribution to, or payment of Taxes exists between the Company
or any subsidiary, on the one hand, and any other Person, on the other, including pursuant to any Tax sharing agreement, lease
agreement, purchase or sale agreement, partnership agreement or any other agreement not entered into in the ordinary course of
business. Neither the Company nor any of its subsidiaries has any liability for Taxes of any Person (other than the Company or
any of its subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of any state, local or foreign law),
or as a transferee or successor, by contract or otherwise. Since the date of the Company's most recent Financial Statements, the
Company has not incurred any liability for Taxes other than in the ordinary course of business consistent with past practice. Neither
the Company nor its subsidiaries has been advised (a) that any of its Tax Returns have been or are being audited as of the date
hereof, or (b) of any deficiency in assessment or proposed judgment to its Taxes. Neither the Company nor any of its subsidiaries
has knowledge of any Tax liability to be imposed upon its properties or assets as of the date of this Agreement that is not adequately
provided for. The Company has not distributed stock of another corporation, or has had its stock distributed by another corporation,
in a transaction that was governed, or purported or intended to be governed, in whole or in part, by Section 355 of the Code (i)
in the two years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan”
or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the purchase
of the Preferred Stock and the Warrants. “Tax” or “Taxes” means any foreign, federal, state
or local income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall,
profits, environmental, customs, capital stock, franchise, employees’ income withholding, foreign or domestic withholding,
social security, unemployment, disability, real property, personal property, sales, use, transfer, value added, alternative or
add-on minimum or other similar tax, governmental fee, governmental assessment or governmental charge, including any interest,
penalties or additions to Taxes or additional amounts with respect to the foregoing. “Tax Returns” means all
returns, reports, or statements required to be filed with respect to any Tax (including any elections, notifications, declarations,
schedules or attachments thereto, and any amendment thereof) including any information return, claim for refund, amended return
or declaration of estimated Tax.


 






    	 	25	 



     


    

(bb)        
Investment Company Status. The Company is not, and immediately after receipt of payment for the Shares will not be,
an “investment company,” an “affiliated person” of, “promoter” for or “principal underwriter”
for, or an entity “controlled” by an “investment company,” within the meaning of the Investment Company
Act of 1940, as amended, or the rules and regulations promulgated thereunder.


 


(cc)         
Transactions With Affiliates and Employees. Except as Previously Disclosed, none of the officers or directors of
the Company or its subsidiaries and, to the knowledge of the Company, none of the employees of the Company or its subsidiaries
is presently a party to any transaction with the Company or any subsidiary (other than for services as employees, officers and
directors) required to be disclosed under Item 404 of Regulation S-K under the Exchange Act.


 


(dd)        
Foreign Corrupt Practices. Neither the Company nor its subsidiaries or Affiliates, any director or officer, nor to
the knowledge of the Company, any agent, employee or other Person acting on behalf of the Company or its subsidiaries has, in the
course of its actions for, or on behalf of, the Company or any of its subsidiaries (a) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to political activity, (b) made or promised to make
any direct or indirect unlawful payment to any foreign or domestic government official or employee (including any officer or employee
of a government or government-owned or controlled entity or of a public international organization, or any Person acting in an
official capacity for or on behalf of any of the foregoing, or of any political party or part official or candidate for political
office (each such Person, a “Government Official”)) from corporate funds, (c) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended or (d) made or promised to make any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic Government Official.


 


(ee)         
Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times
in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, and the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law on October
26, 2001)), applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
Company’s knowledge, threatened.


 






    	 	26	 



     


    

(ff)          
OFAC. Neither the Company, any director or officer, nor, to the Company’s knowledge, any agent, employee, subsidiary
or Affiliate of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person,
for the purpose of financing the activities of any Person currently subject to any U.S. sanctions administered by OFAC.


 


(gg)        
Environmental Laws. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all
permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a Material Adverse Effect on the
Company and its subsidiaries, taken as a whole. There are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries, taken as
a whole.


 


(hh)        
Employee Relations. Except as set forth in Section 3.1(hh) of the Disclosure Schedules or as otherwise Previously
Disclosed, neither the Company nor any of its subsidiaries is a party to any collective bargaining agreement or employs any member
of a union. Neither the Company nor any of its subsidiaries is engaged in any unfair labor practice. There is (i) (A) no unfair
labor practice complaint pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries
before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining
agreements is pending or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of its subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of its subsidiaries, and (ii) to the Company’s knowledge, (A) no
union organizing activities are currently taking place concerning the employees of the Company or any of its subsidiaries and (B) there
has been no violation of any federal, state, local or foreign law relating to discrimination in the hiring, promotion or pay of
employees or any applicable wage or hour laws. No executive officer of the Company (as defined in Rule 501(f) promulgated
under the Securities Act) has notified the Company that such officer intends to leave the Company or otherwise terminate such officer’s
employment with the Company. No executive officer of the Company, to the knowledge of the Company, is, or is now expected to be,
in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement,
non-competition agreement, or any other agreement or any restrictive covenant, and the continued employment of each such executive
officer does not subject the Company or any of its subsidiaries to any liability with respect to any of the foregoing matters.


 






    	 	27	 



     


    

(ii)           
ERISA. The Company and its subsidiaries are in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (herein called “ERISA”); no “reportable event” (as defined in ERISA) has occurred with
respect to any “pension plan” (as defined in ERISA) for which the Company or any of its subsidiaries would have any
liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”; or (ii) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each
“Pension Plan” for which the Company would have liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.


 


(jj)           
Obligations of Management. To the Company’s knowledge, each officer and key employee of the Company or its
subsidiaries is currently devoting substantially all of his or her business time to the conduct of the business of the Company
or its subsidiaries, respectively. The Company is not aware that any officer or key employee of the Company or its subsidiaries
is planning to work less than full time at the Company or its subsidiaries, respectively, in the future. To the Company’s
knowledge, no officer or key employee is currently working or plans to work for a competitive enterprise, whether or not such officer
or key employee is or will be compensated by such enterprise. To the Company’s knowledge, no officer or Person currently
nominated to become an officer of the Company or its subsidiaries is or has been subject to any judgment or order of, the subject
of any pending civil or administrative action by the SEC or any self-regulatory organization.


 


(kk)        
Integration; Other Issuances of Securities. Except as set forth in Section 3.1(kk) of the Disclosure Schedules, neither
the Company nor its subsidiaries or any Affiliates, nor any Person acting on its or their behalf, has issued any shares of Common
Stock or shares of any series of preferred stock or other securities or instruments convertible into, exchangeable for or otherwise
entitling the holder thereof to acquire shares of Common Stock which would be integrated with the sale or exchange of the Securities
to the Purchaser for purposes of the Securities Act or of any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of The NASDAQ Stock Market, nor will the Company or its subsidiaries or Affiliates take any action
or steps that would require registration of any of the Securities under the Securities Act or cause the offering of the Securities
to be integrated with other offerings if any such integration would cause the issuance of the Securities hereunder to fail to be
exempt from registration under the Securities Act as provided in Section 3.10 above or cause the transactions contemplated hereby
to contravene the rules and regulations of The NASDAQ Stock Market. The Company is eligible to register the Underlying Shares for
resale by the Purchaser using Form S-3 promulgated under the Securities Act.


 






    	 	28	 



     


    

(ll)           
No General Solicitation. Neither the Company nor its subsidiaries or any Affiliates, nor any Person acting on its
or their behalf, has offered or sold any of the Securities by any form of general solicitation or general advertising.


 


(mm)    
No Brokers’ Fees. Except as set forth in Section 3.1(mm) of the Disclosure Schedules, the Company has not incurred
any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby.


 


(nn)        
Registration Rights. Except as set forth in (i) the Registration Rights Agreement, dated February 27, 2012, by and
among the Company and the several purchasers signatory thereto; (ii) the Registration Rights Agreement, dated July 30, 2012, by
and between the Company and Total Energies Nouvelles Activités USA, (iii) the Amended and Restated Letter Agreement dated
May 8, 2014, by and among the Company and note holders party thereto; (iv) the Registration Rights Agreement, dated February 24,
2015, by and between the Company and Nomis Bay Ltd., (v) the registration rights letter dated July 29, 2015, by and between the
Company and the purchasers party thereto, (vi) the Registration Rights Agreement dated October 20, 2015 by and among the Company
and purchasers party thereto, and (vii) the warrant to purchase stock issued to Nenter & Co., Inc. on November 16, 2016 and
(viii) the Stockholder Agreement, or except as contemplated hereby (including the consummation of transactions related hereto),
the Company has not granted or agreed to grant to any Person any rights (including “piggy-back” registration rights)
to have any securities of the Company registered with the SEC or any other governmental authority that have not been satisfied
or waived.


 


(oo)        
Application of Takeover Protections. There is no control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s charter documents
or the laws of its state of incorporation that is or could become applicable to the Purchaser as a result of the Purchaser and
the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including, without limitation,
as a result of the Company’s issuance of the Securities and the Purchaser’s ownership of the Securities.


 






    	 	29	 



     


    

(pp)        
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each
of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor
or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated
thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The
Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction
Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.


 


(qq)        
Acknowledgement Regarding Purchaser’s Trading Activity.
Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.14 hereof), it
is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has
any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open
market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price
of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions
to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common
Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges
that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding,
including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities
are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests
in the Company at and after the time that the hedging activities are being conducted.  The Company acknowledges that such
aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.


 


(rr)          
No Disqualification. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the
Securities Act (a “Disqualification Event”) is applicable to the Company or, to the Company’s knowledge,
any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.
As used herein, “Company Covered Person” means, with respect to the Company as an “issuer” for purposes
of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).


 






    	 	30	 



     


    

(ss)         
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes material, non-public information which is not otherwise
disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchaser will rely on the foregoing representations
in effecting transactions in the Securities. All disclosure furnished by or on behalf of the Company to the Purchaser in connection
with this Agreement regarding the Company, its business and the transactions contemplated hereby is true and correct in all material
respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges
and agrees that the Purchaser has not made and do not make any representations or warranties with respect to the transactions contemplated
hereby other than those set forth in Article 4 hereto.


 


(tt)           
Designated Holder. The Company confirms that the Board of Directors has affirmatively designated DSM International
B.V. (along with any of its Affiliates that subsequently acquires Securities) as the Designated Holder for purposes of the Series
B Certificate of Designation and the Warrants.


 


3.2           
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein,
in which case they shall be accurate as of such date):


 


(a)            
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate,
partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated
by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of
the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have
been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the
part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered
by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 






    	 	31	 



     


    

(b)           
Understandings or Arrangements. Such Purchaser is acquiring the Unregistered Securities as principal for its own
account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution
of such Unregistered Securities (this representation and warranty not limiting such Purchaser’s right to sell the Unregistered
Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws).
Such Purchaser (other than the Designated Holder) is acquiring the Unregistered Securities hereunder in the ordinary course of
its business. Such Purchaser understands that the Unregistered Securities are “restricted securities” and have not
been registered under the Securities Act or any applicable state securities law and is acquiring such Unregistered Securities as
principal for his, her or its own account and not with a view to or for distributing or reselling such Unregistered Securities
or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing
any of such Unregistered Securities in violation of the Securities Act or any applicable state securities law and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Unregistered
Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting
such Purchaser’s right to sell such Unregistered Securities pursuant to the Registration Statement or otherwise in compliance
with applicable federal and state securities laws).


 


(c)            
Purchaser Status. At the time such Purchaser was offered the Unregistered Securities, it was, and as of the date
hereof it is, and on each date on which it exercises any Warrants, it will be either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act, as indicated on the signature pages hereto.


 


(d)           
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective
investment in the Unregistered Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able
to bear the economic risk of an investment in the Unregistered Securities and, at the present time, is able to afford a complete
loss of such investment.


 


(e)            
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents
(including all exhibits and schedules thereto) and the SEC Documents and has been afforded: (i) the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions
of the offering of the Unregistered Securities and the merits and risks of investing in the Unregistered Securities; (ii) access
to information about the Company and its financial condition, results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with
respect to the investment.  Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the
Placement Agent has provided such Purchaser with any information or advice with respect to the Unregistered Securities nor is such
information or advice necessary or desired.  Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Unregistered Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it.  In connection with the issuance
of the Unregistered Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial
advisor or fiduciary to such Purchaser.


 






    	 	32	 



     


    

(f)            
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time
that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company
setting forth the material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution
hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth
above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision
to purchase the Unregistered Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such
Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors,
employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection
with this transaction (including the existence and terms of this transaction) or, in the case of the Designated Holder, in accordance
with the terms of its subsidiary’s mutual confidential disclosure agreement with the Company (the “CDA”).
Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty,
or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in
the future.


 


(g)           
General Solicitation. Such Purchaser is not purchasing the Unregistered Securities as a result of any advertisement,
article, notice or other communication regarding the Unregistered Securities published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or, to the Purchaser’s knowledge, any other general solicitation
or general advertisement.


 


The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations
and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or
any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions
contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation
or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions
in the future.


 






    	 	33	 



     


    

ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES


 


4.1       Removal of Legends.


 


(a)       
The Unregistered Securities may only be disposed of in compliance with state and federal securities laws. In connection
with any transfer of Unregistered Securities other than pursuant to an effective registration statement or Rule 144, to the Company
or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the
Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer
does not require registration of such transferred Unregistered Securities under the Securities Act.


 


(b)      
 The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Unregistered
Securities in the following form:


 


NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS
SECURITY IS EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION
THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.


 


The Company acknowledges and agrees
that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Unregistered Securities to a financial institution that is an “accredited investor”
as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer
pledged or secured Unregistered Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to
approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection
therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured party of Unregistered Securities may reasonably request
in connection with a pledge or transfer of the Unregistered Securities.


 






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(c)            
Certificates evidencing the Unregistered Securities shall not contain any legend (including the legend set forth in Section
4.1(b) hereof): (i) while a registration statement covering the resale of such security is effective under the Securities Act,
(ii) following any sale of such Unregistered Securities pursuant to Rule 144, (iii) if such Unregistered Securities are eligible
for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue
a legal opinion to the Transfer Agent promptly if required by the Transfer Agent to effect the removal of the legend hereunder.
If all or any shares of Preferred Stock or portion of a Warrant is exercised at a time when there is an effective registration
statement to cover the resale of the applicable Underlying Shares, or if such Underlying Shares may be sold under Rule 144 or if
such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission) then such Underlying Shares shall be issued free of all legends. The Company
agrees that following such time as such legend is no longer required under this Section 4.1(c) and upon the request of the Purchaser,
the Company will, no later than the earlier of (i) three Trading Days and (ii) the number of Trading Days comprising the Standard
Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate
representing Underlying Shares, as applicable, issued with a restrictive legend (such third Trading Day, the “Legend Removal
Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all
restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent
that enlarge the restrictions on transfer set forth in this Section 4. Certificates for Underlying Shares subject to legend removal
hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker
with the Depository Trust Company System as directed by such Purchaser. 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 by a Purchaser to the Company or the Transfer Agent of a certificate
representing Underlying Shares issued with a restrictive legend.


 


(d)           
In addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial
liquidated damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date
such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c),
$10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each
Trading Day commencing one Trading Day after the Legend Removal Date until such certificate is delivered without a legend and (ii)
if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate
representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and
(b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale
of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Purchaser
anticipated receiving from the Company without any restrictive legend, then an amount equal to the excess of such Purchaser’s
total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock
so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”)
over the product of (A) such number of Underlying Shares that the Company was required to deliver to such Purchaser by the Legend
Removal Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing
on the date of the delivery by such Purchaser to the Company of the applicable Underlying Shares (as the case may be) and ending
on the date of such delivery and payment under this Section 4.1(d).


 






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(e)       
The Registered Securities shall be issued free of legends.


 


4.2           
Furnishing of Information.


 


(a)       
Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired, the Company covenants
to use commercially reasonable efforts to timely file (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company
is not then subject to the reporting requirements of the Exchange Act.


 


(b)      
At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that
all of the Underlying Shares (assuming cashless exercise of the Warrants) may be sold without the requirement for the Company to
be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall
fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described
in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule
144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies,
the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay
in or reduction of its ability to sell the Underlying Shares, an amount in cash equal to two percent (2.0%) of the aggregate Stated
Value of Preferred Stock and Exercise Price of such Purchaser’s Warrants on the day of a Public Information Failure and on
every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a)
the date such Public Information Failure is cured and (b) such time that such public information is no longer required  pursuant
to Rule 144.  The payments to which a Purchaser shall be entitled pursuant to this Section 4.2(b) are referred to herein as
“Public Information Failure Payments.”  Public Information Failure Payments shall be paid on the earlier
of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third
(3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. 
In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure
Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall
limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the
right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief.


 






    	 	36	 



     


    

4.3           
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Unregistered
Securities in a manner that would require the registration under the Securities Act of the sale of the Unregistered Securities
or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market
such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained
before the closing of such subsequent transaction; provided, however, that the foregoing shall not prohibit the issuance of any
securities to the Designated Holder in accordance with its rights under the Stockholder Agreement.


 


4.4           Securities Laws
Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City time) on the Trading Day immediately following the
date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current
Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the
Exchange Act. Upon the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed
all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their
respective officers, directors, employees or agents on or prior to the day hereof in connection with the transactions contemplated
by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees
that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any
of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of
the Purchasers or any of their Affiliates on the other hand, shall terminate; provided, that with respect to the CDA, such
agreement shall not terminate upon the issuance of such press release and shall remain in effect in accordance with its terms.
The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Purchaser (other than the Designated Holder) shall issue any such press release
nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any
Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall
not unreasonably be withheld or delayed, except if such disclosure is required by law or Trading Market regulations, in which case
the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a)
as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b)
to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted under this clause (b).


 






    	 	37	 



     


    

4.5           
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any
other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue
of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.


 


4.6           
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated
by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it,
nor any other Person acting on its behalf, will provide any Purchaser or its agents or counsel with any information that constitutes,
or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have
consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent,
the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its
Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of
its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any
notice provided pursuant to any Transaction Document 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. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.


 


4.7           
Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities in accordance with the Use
of Proceeds section in the Prospectus Supplement, and for the avoidance of doubt, the Company shall not use such proceeds to pay
any dividend or other distribution on any shares of Common Stock or Preferred Stock or to make any Make-Whole Payment (as defined
in the Series A Certificate of Designation and the Series B Certificate of Designation).


 






    	 	38	 



     


    

4.8           
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold
each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person
who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each,
a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages,
costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of
the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents
or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any
stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is based upon a breach of such Purchaser’s representations, warranties or
covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder
or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes
fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser Party in respect of which
indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the
Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser
Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time
to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not
be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent, that
a loss, claim, damage or liability is attributable to such Purchaser’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser in this Agreement or in the other Transaction Documents. The indemnification required
by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense,
as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of
action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to
pursuant to law.


 


4.9           
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive or similar rights, a sufficient number of shares of Common Stock for the purpose
of enabling the Company to issue the Underlying Shares issuable upon conversion of the Series A Convertible Preferred Stock. Following
the date Stockholder Approval is obtained and deemed effective, the Company will immediately reserve and continue to reserve and
keep available at all times, free of preemptive or similar rights, a sufficient number of shares of Common Stock equal to the Required
Minimum.


 






    	 	39	 



     


    

4.10        
Listing of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing
or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the
Company shall apply to list or quote all of the Underlying Shares on such Trading Market and promptly secure the listing of all
of the Underlying Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded
on any other Trading Market, it will then include in such application all of the Underlying Shares, and will take such other action
as is necessary to cause all of the Underlying Shares to be listed or quoted on such other Trading Market as promptly as possible.
The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading
Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules
of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository
Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository
Trust Company or such other established clearing corporation in connection with such electronic transfer.


 


4.11        
Stockholder Approval.


 


(a)            
Stockholders Meeting. The Company shall establish a record date that is one Business Day prior to the Closing Date
for, and shall call, give notice of, convene and hold, a special meeting of stockholders of the Company (the “Stockholder
Meeting”), as promptly as practicable following the date hereof and in no event later than July 10, 2017 for the purpose
of voting upon the approval of resolutions (the “Stockholder Resolutions”) with respect to the matters contemplated
by the Stockholder Approval (the date such approval is obtained, the “Stockholder Approval Date”), provided,
however, nothing herein shall prevent the Company from postponing or adjourning the Stockholder Meeting if (i) there
are insufficient shares of the Common Stock present or represented by a proxy at the Stockholder Meeting to conduct business at
the Stockholder Meeting, (ii) the Company is required to postpone or adjourn the Stockholder Meeting by applicable law or a request
from the Commission or its staff, or (iii) the Company determines in good faith (after consultation with outside legal counsel)
that it is necessary or appropriate to postpone or adjourn the Stockholder Meeting in order to give the stockholders of the Company
sufficient time to evaluate any information or disclosure that the Company has sent to the stockholders or otherwise made available
to the stockholders by issuing a press release, filing materials with the SEC or otherwise. The Company shall solicit from the
stockholders of the Company proxies in favor of the Stockholder Resolutions in accordance with applicable law, and shall submit
the Stockholder Resolutions for a vote of the Company’s stockholders at the Stockholder Meeting. The Company shall (A) not
permit any amendment of, modification to, or waiver of any of the Company’s rights under, the Voting Agreement or the Security
Holder Agreement without the consent of the Purchasers, (B) take reasonable measures (including, for the avoidance doubt, initiating
and prosecuting litigation against the other parties thereto) to enforce its rights under the Voting Agreement and the Security
Holder Agreement and (C) use commercially reasonable efforts to secure the Stockholder Approval at the Stockholder Meeting.


 






    	 	40	 



     


    

(b)           
Company Board Recommendation. Subject to the terms of this Section 4.11(b), the Board of Directors shall
recommend that the Company’s stockholders approve the Stockholder Resolutions in accordance with the applicable law (the
“Company Board Recommendation”). Neither the Board of Directors nor any committee thereof shall fail to make,
withhold, withdraw, amend or modify in a manner adverse to the Holders or Investors the Company Board Recommendation, unless the
Board of Directors determines in good faith (after consultation with outside legal counsel) that the failure to make such public
statement would be a breach of its fiduciary duties to the Company’s stockholders under applicable law (a “Company
Board Recommendation Change”). Notwithstanding the foregoing, at any time prior to the receipt of the Stockholder Approval,
the Board of Directors may effect a Company Board Recommendation Change if, as a result of an Intervening Event, the Board of Directors
determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation
Change would be a breach of its fiduciary duties to the Company’s stockholders under applicable law; provided that
prior to effecting such Company Board Recommendation Change, the Board of Directors shall give the Purchasers at least four Business
Days advance notice thereof (the “Notice Period”). For the purposes of this Section 4.11(b), an “Intervening
Event” means any material event or development or material change in circumstances with respect to the Company that (i)
was unknown by the Board of Directors as of, or prior to, the date hereof, or (ii) if known, the magnitude and consequences of
which were not known or foreseeable by the Board of Directors as of the date hereof.


 


(c)            
Proxy Filing. The Company shall prepare and file with the Commission, by no later than May 24, 2017, a proxy statement
in preliminary form relating to the Stockholders Meeting (such proxy statement, including any amendment or supplement thereto,
the “Proxy Statement”). The Company shall cause the Proxy Statement to comply in all material respects with
the applicable provisions of the Exchange Act. The Company shall cause the definitive Proxy Statement to be mailed as promptly
as possible after the date the staff of the SEC advises that it has no further comments thereon or that the Company may commence
mailing the Proxy Statement.


 


(d)           
If the Company does not obtain Stockholder Approval at the first meeting, the Company shall call a meeting every four months
thereafter to seek Stockholder Approval until the earlier of the date Stockholder Approval is obtained or the Preferred Stock and
Warrants are no longer outstanding.


 


4.12        
Subsequent Equity Sales.


 






    	 	41	 



     


    

(a)            
From the date hereof until July 31, 2017, neither the Company nor any subsidiary shall issue, enter into any agreement to
issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.


 


(b)           
From the date hereof until one year from the Closing Date, the Company shall be prohibited from effecting or entering into
an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a
combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for,
or include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange
rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at
any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that
is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence
of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock
or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit or
at-the-market offering, whereby the Company may issue securities at a future determined price; provided, the Company may utilize
an at-the-market offering conducted under Rule 415 commencing 90 days after the Closing Date. Any Purchaser shall be entitled to
obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect
damages.


 


(c)            
Unless Stockholder Approval has been obtained and deemed effective, neither the Company nor any subsidiary shall make any
issuance whatsoever of Common Stock or Common Stock Equivalents. Any Purchaser shall be entitled to obtain injunctive relief against
the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.


 


(d)           
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable
Rate Transaction (other than any Variable Rate Transaction existing on the date of this Agreement that would otherwise qualify
as an Exempt Issuance) shall be an Exempt Issuance. For the avoidance of doubt, the issuance of securities to the Designated Holder
in accordance with its rights under the Stockholder Agreement shall not be considered a Variable Rate Transaction for purposes
of this Agreement.


 


4.13        
Anti-Dilution Provisions. Solely for purposes of any anti-dilution or other similar rights under any outstanding
securities of the Company (including any Common Stock Equivalents), the Company shall report and use $0.50 as the effective per
share price for the Securities (the “Effective Price”).


 


4.14        
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be
offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless
the same consideration is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended
for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or
as a group with respect to the purchase, disposition or voting of Securities or otherwise.


 






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4.15        
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales,
including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement
and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4.  Each Purchaser, severally and not jointly
with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed
by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality
of the existence and terms of this transaction and the information included in the Disclosure Schedules (in the case of the Designated
Holder, in accordance with the CDA).  Notwithstanding the foregoing and notwithstanding anything
contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation,
warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company
in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are
first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any
duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance
of the initial press release as described in Section 4.4.  Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing
other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.


 


4.16        
Conversion and Exercise Procedures. Each of the form of Notice of Exercise included
in the Warrants and the form of Notice of Conversion included in the Certificates of Designation set forth the totality of the
procedures required of the Purchasers in order to exercise the Warrants or convert the Preferred Stock. Without limiting the preceding
sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in order to exercise
the Warrants or convert the Preferred Stock. No additional legal opinion, other information or instructions shall be required of
the Purchasers to exercise their Warrants or convert their Preferred Stock. The Company shall honor exercises of the Warrants and
conversions of the Preferred Stock and shall deliver Underlying Shares in accordance with the terms, conditions and time periods
set forth in the Transaction Documents.


 






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4.17        
Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect
to the Unregistered Securities as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser.
The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for,
or to qualify the Unregistered Securities for, sale to the Purchasers at the Closing under applicable securities or “Blue
Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser.


 


4.18        
Registration Statement. As soon as practicable (and in any event within 30
calendar days of the date the Company obtains Stockholder Approval), the Company shall file a registration statement on Form S-3
(or other appropriate form if the Company is not then S-3 eligible) providing for the resale by the Purchasers of the Underlying
Shares.  The Company shall use commercially reasonable efforts to cause such registration to become effective within 181 days
following the Closing Date and commercially reasonable efforts to keep such registration statement effective at all times until
(i) no Purchaser owns any Securities or (ii) the Underlying Shares are eligible for resale under Rule 144 without regard to volume
limitations.


 


4.19        
Voting Restriction. Each Purchaser hereby agrees not to vote any Underlying Shares
held by such Purchaser for or against the Stockholder Approval, whether at the Stockholder Meeting or at any subsequent meeting
of the Company’s stockholders with respect to any vote relating to the Stockholder Approval.


 


ARTICLE V.

MISCELLANEOUS


 


5.1           
Termination.  This Agreement may be terminated (i) by any Purchaser, as to such Purchaser’s obligations
hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice
to the other parties, if (a) the Closing has not been consummated on or before May 15, 2017, or (b) prior to the Closing, one or
more Purchasers representing 5% or more of the aggregate Subscription Amount as of the date of this Agreement terminate this Agreement
as it applies to such Purchaser(s), including termination of any such Purchaser’s obligation to fund to the Company its Subscription
Amount at the Closing, and (ii) by the Company if, prior to the Closing, one or more Purchasers representing 10% or more of the
aggregate Subscription Amount as of the date of this Agreement terminate this Agreement as it applies to such Purchaser(s), including
termination of any such Purchaser’s obligation to fund to the Company its Subscription Amount at the Closing; provided,
however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).


 


5.2           
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay
the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided, however, that,
on the Closing Date, the Company shall pay $125,000 to the Designated Holder by wire transfer of immediately available funds to
an account designated in advance by the Designated Holder, which amount compensates the Designated Holder for a portion of its
attorneys’ fees incurred in connection with the transactions contemplated by this Agreement. The Company shall pay all Transfer
Agent fees or Depositary Trust Company fees (including, without limitation, any fees required for same-day processing of any instruction
letter delivered by the Company and any conversion or exercise notice delivered by a Purchaser), registration fees, stamp taxes
and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers and the removal of any legends
with respect to any Securities in accordance herewith.


 






    	 	44	 



     


    

5.3           
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and
the Prospectus Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof
and supersede all prior agreements and understandings, oral or written, by or among any of the parties hereto with respect to such
matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.


 


5.4           
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number or email attachment at the email address as 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 email attachment at the email
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. The address
for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice
provided pursuant to any Transaction Document 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.


 


5.5           
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a
written instrument signed, in the case of an amendment, by the Company, the Designated Holder and Purchasers which purchased at
least 67% in interest of the Preferred Stock based on the initial Subscription Amounts hereunder or, in the case of a waiver, by
the party against whom enforcement of any such waived provision is sought, provided that, if any amendment, modification or waiver
disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted
Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or
a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with accordance with
this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.


 






    	 	45	 



     


    

5.6           
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not
be deemed to limit or affect any of the provisions hereof.


 


5.7           
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any
Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”


 


5.8           
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and
warranties of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement
is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section
5.8.


 


5.9           
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction
Documents 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 Agreement and any other Transaction Documents (whether brought
against a party hereto or its 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 (including with
respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any
Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such 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 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 Agreement 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 any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under
Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action
or Proceeding.


 






    	 	46	 



     


    

5.10        
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.


 


5.11        
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered
to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an original thereof.


 


5.12        
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.


 


5.13        
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained
in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a
right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations
within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions
and rights; provided, however, that in the case of a rescission of a conversion of the Preferred Stock or exercise
of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion
or exercise notice concurrently with the return to such Purchaser of, as applicable, the aggregate exercise price paid to the Company
for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Preferred
Stock or Warrant (including issuance of a replacement stock or warrant certificate evidencing such restored right).


 


5.14        
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in
the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance
of such replacement Securities.


 






    	 	47	 



     


    

5.15        
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery
of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations
contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any
such obligation the defense that a remedy at law would be adequate.


 


5.16        
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from,
disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person
under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action),
then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.


 


5.17        
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way
for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without
limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for
any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented
by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience
only, each Purchaser and its respective counsel (other than the Designated Holder and its counsel) have chosen to communicate with
the Company through EGS. EGS does not represent any of the Purchasers and only represents the Placement Agent. The Company has
elected to provide all Purchasers (other than the Designated Holder, which has additional rights and obligations under the Stockholder
Agreement and the IP License) with the same terms and Transaction Documents for the convenience of the Company and not because
it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company
and the Purchasers collectively and not between and among the Purchasers.


 






    	 	48	 



     


    

5.18        
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing
under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated
damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial
liquidated damages or other amounts are due and payable shall have been canceled.


 


5.19        
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.


 


5.20        
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments
thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be
subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
of the Common Stock that occur after the date of this Agreement.


 


5.21        
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY,
UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. 


 


 


 


(Signature Pages Follow)


 


 


 


 






    	 	49	 



     


    

IN WITNESS WHEREOF, the parties hereto have
caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.


 


 


	
        amyris, inc.

         

         
	Address for Notice:
	
        By:__________________________________________

        Name:

        Title:

         

        With a copy to (which shall not constitute notice):
	
         

        E-Mail:

        Fax:

         

	
         

         

        

         
	 


 


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR PURCHASER FOLLOWS]





 





 


 






    	 	50	 



     


    




[PURCHASER SIGNATURE PAGES TO amrs
SECURITIES PURCHASE AGREEMENT]


 


IN WITNESS WHEREOF, the undersigned have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.


 


Name of Purchaser: ________________________________________________________


 


Signature of Authorized Signatory of Purchaser: _________________________________


 


Name of Authorized Signatory: _______________________________________________


 


Title of Authorized Signatory: ________________________________________________


 


Email Address of Authorized Signatory:_________________________________________


 


Facsimile Number of Authorized Signatory: __________________________________________


 


Address for Notice to Purchaser:


 


 


Address for Delivery of Securities to Purchaser (if not same as address for notice):


 


 


Subscription Amount: $_________________


Series A Convertible Preferred Stock: _________________


Series B Convertible Preferred Stock: _______________


Cash Warrant Shares: __________________


 


The Purchaser is /____/ a Qualified Institutional Buyer or /____/ an Accredited Investor


 


EIN Number: _______________________


 


o Notwithstanding anything
contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the securities
set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell such
securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing shall
occur on the third (3rd) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated
by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed
of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall
instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument,
certificate or the like or purchase price (as applicable) to such other party on the Closing Date.


 


 


[SIGNATURE PAGES CONTINUE]


 






    	 	51	 



     


    










EXHIBIT A-1


 


AMYRIS, INC.


 


CERTIFICATE OF DESIGNATION OF PREFERENCES, 


RIGHTS AND LIMITATIONS


OF


SERIES A 17.38%
CONVERTIBLE PREFERRED STOCK


 


PURSUANT TO SECTION 151 OF
THE 


DELAWARE GENERAL CORPORATION
LAW


 


The undersigned, John Melo and Stephen Dobson,
do hereby certify that:


 


1. They are the President and Assistant Secretary,
respectively, of Amyris, Inc., a Delaware corporation (the “Corporation”).


 


2. The Corporation is authorized to issue 5,000,000
shares of preferred stock, none of which have been issued.


 


3. The following resolutions were duly adopted
by the board of directors of the Corporation (the “Board of Directors”):


 


WHEREAS, the certificate of incorporation of
the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 5,000,000 shares, $0.0001
par value per share, issuable from time to time in one or more series;


 


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


 


WHEREAS, it is the desire of the Board of Directors,
pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of
the preferred stock, which shall consist of, except as otherwise set forth in the Purchase Agreement, up to 22,140 shares of the
preferred stock which the Corporation has the authority to issue, as follows:


 


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


 






    	 	52	 



     


    

TERMS OF PREFERRED STOCK


 


Section 1. Definitions. For
the purposes hereof, the following terms shall have the following meanings:


 


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


 


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


 


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


 


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


 


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


 


“Change of Control Transaction”
means the occurrence after the applicable Original Issue Date of any of (a) an acquisition by an individual or legal entity or
“group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through
legal or beneficial ownership of capital stock of the Corporation, by contract or otherwise) of in excess of 50% of the voting
securities of the Corporation, (b) the Corporation merges into or consolidates with any other Person, or any Person merges into
or consolidates with the Corporation and, after giving effect to such transaction, the stockholders of the Corporation immediately
prior to such transaction own less than 50% of the aggregate voting power of the Corporation or the successor entity of such transaction,
(c) the Corporation sells or transfers all or substantially all of its assets to another Person and the stockholders of the Corporation
immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after
the transaction, (d) a replacement at one time or within a one year period of more than one-half of the members of the Board of
Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the applicable
Original Issue Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination
to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the applicable
Original Issue Date), or (e) the execution by the Corporation of an agreement to which the Corporation is a party or by which it
is bound, providing for any of the events set forth in clauses (a) through (d) above.


 






    	 	53	 



     


    

“Closing” means
the closing of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement (or the corresponding
provision of any Designated Holder Purchase Agreement).


 


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


 


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


 


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


 


“Conversion Amount”
means the Stated Value at issue.


 


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


 


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


 


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


 


“Designated Holder”
means the Person designated by the Board to become a Holder and a “Designated Holder” pursuant to the Securities Purchase
Agreement contemplated by clause (i) of the definition of Purchase Agreement, as amended from time to time, or another Securities
Purchase Agreement to be entered into by such Person with the Corporation (the “Designated Holder Purchase Agreement”).


 


“Dividend Conversion Rate”
means $1.15, subject to adjustment for forward and reverse stock splits and the like that occur after the initial Original Issue
Date.


 


“Dividend Conversion Shares”
shall have the meaning set forth in Section 3(a).


 


“Dividend Notice Period”
shall have the meaning set forth in Section 3(a).


 


“Dividend Payment Date”
shall have the meaning set forth in Section 3(a).


 


“Dividend Share Amount”
shall have the meaning set forth in Section 3(a).


 






    	 	54	 



     


    

“Equity Conditions”
means, during the period in question, (a) the Corporation shall have duly honored all conversions scheduled to occur or occurring
by virtue of one or more Notices of Conversion of the applicable Holder on or prior to the dates so requested or required, if any,
(b) the Corporation shall have paid all late fees, liquidated damages and other amounts owing to the applicable Holder in respect
of the Preferred Stock, (c)(i) there is an effective registration statement pursuant to which either (A) the Corporation may issue
Conversion Shares (and shares issuable in lieu of cash payments of dividends and Make Whole Payments) or (B) the Holders are permitted
to utilize the prospectus thereunder to resell all of the shares of Common Stock issuable pursuant to the Transaction Documents
(and shares issuable in lieu of cash payments of dividends and Make Whole Payments) (and the Corporation believes, in good faith,
that such effectiveness will continue uninterrupted for the foreseeable future) or (ii) all of the Conversion Shares issuable pursuant
to the Transaction Documents (and shares issuable in lieu of cash payments of dividends and Make Whole Payments) may be resold
pursuant to Rule 144 without volume or manner-of-sale restrictions or current public information requirements as determined by
the counsel to the Corporation as set forth in a written opinion letter to such effect, addressed and acceptable to the Transfer
Agent and the affected Holders or (iii) all of the Conversion Shares (and shares issuable in lieu of cash payments of dividends
and Make Whole Payments) may be issued to the Holder pursuant to Section 3(a)(9) of the Securities Act and immediately resold without
restriction, (d) the Common Stock is trading on a Trading Market and all of the shares issuable pursuant to the Transaction Documents
(and shares issuable in lieu of cash payments of dividends and Make Whole Payments) are listed or quoted for trading on such Trading
Market (and the Corporation believes, in good faith, that trading of the Common Stock on a Trading Market will continue uninterrupted
for the foreseeable future), (e) there is a sufficient number of authorized, but unissued and otherwise unreserved, shares of Common
Stock for the issuance of all of the shares then issuable pursuant to the Transaction Documents (and shares issuable in lieu of
cash payments of dividends and Make Whole Payments), (f) the issuance of the shares in question to the applicable Holder would
not violate the limitations set forth in Section 6(d) and Section 6(e) herein, (g) there has been no public announcement of a pending
or proposed Fundamental Transaction or Change of Control Transaction that has not been consummated, (h) Stockholder Approval shall
have been received and effective and (i) the applicable Holder (other than the Designated Holder) is not in possession of any information
provided by the Corporation, any of its Subsidiaries, or any of their officers, directors, employees, agents or Affiliates, that
constitutes, or may constitute, material non-public information.


 


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


 


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


 


“GAAP” means United
States generally accepted accounting principles.


 


“Holder” shall
have the meaning given such term in Section 2.


 


“Issuable Maximum”
shall have the meaning set forth in Section 6(e).


 






    	 	55	 



     


    

“Junior Securities”
means the Common Stock and all other Common Stock Equivalents of the Corporation other than those securities which are explicitly
senior or pari passu to the Preferred Stock in dividend rights or liquidation preference, it being understood and agreed
that (i) the Corporation’s Series B Preferred Stock issued pursuant to the Purchase Agreement explicitly rank pari passu
to the Preferred Stock in that regard, and (ii) any convertible indebtedness of the Corporation shall be deemed senior to the Preferred
Stock in that regard.


 


“Liens” means a
lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“Liquidation” shall
have the meaning set forth in Section 5.


 


“Make-Whole Payment”
shall have the meaning set forth in Section 3(a).


 


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


 


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


 


“Original Issue Date”
means, with respect to a share of Preferred Stock, the date of the first issuance of any such share of Preferred Stock regardless
of the number of transfers of any such share of Preferred Stock and regardless of the number of certificates which may be issued
to evidence such Preferred Stock.


 


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


 


“Preferred Stock”
shall have the meaning set forth in Section 2.


 


“Purchase Agreement”
means (i) the Securities Purchase Agreement, dated as of May __, 2017, among the Corporation and the original Holders, as amended,
modified or supplemented from time to time in accordance with its terms or (ii) any Designated Holder Purchase Agreement, as applicable.


 


“Securities” means
the Preferred Stock, the Warrants, the Warrant Shares and the Underlying Shares.


 


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


 


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


 


“Stated Value”
shall have the meaning set forth in Section 2, as the same may be increased pursuant to Section 3.


 






    	 	56	 



     


    

“Stockholder Approval”
means both (x) such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor
entity) from the stockholders of the Corporation with respect to the transactions contemplated by the Transaction Documents, including
the issuance of all of the Underlying Shares in excess of 19.99% of the issued and outstanding Common Stock on April 12, 2017 and
(y) such approval for a reverse stock split of Common Stock to permit the issuance of all shares of Common Stock issuable pursuant
to the Preferred Stock (including shares issuable in lieu of cash payment of dividends and Make Whole Payments) and Warrants.


 


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


 


“Subsidiary” means
any subsidiary of the Corporation as disclosed in the Corporation’s Annual Report on Form 10-K for the year ended December 31,
2016 and shall, where applicable, also include any direct or indirect subsidiary of the Corporation formed or acquired after December
31, 2016.


 


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


 


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


 


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


 


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


 


“Transfer Agent”
means Wells Fargo Shareholder Services, the current transfer agent of the Corporation with a mailing address of 1110 Centre Point
Curve, Suite 101, Mendota Heights, MN 55120 and a telephone number of (855) 217-6361, and any successor transfer agent of the Corporation.


 


“Underlying Shares”
means the shares of Common Stock issued and issuable (x) upon conversion or redemption of the Preferred Stock, (y) upon exercise
of the Warrants and (z) in lieu of the cash payment of dividends on the Preferred Stock and Make-Whole Payments in accordance with
the terms of this Certificate of Designation.


 






    	 	57	 



     


    

“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 in the “Pink Sheets” published by OTC Markets, Inc. (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent bid price per 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 Purchasers
of a majority in interest of the Securities then outstanding and reasonably acceptable to the Corporation, the fees and expenses
of which shall be paid by the Corporation.


 


“Warrants” means,
collectively, the Common Stock purchase warrants delivered to the Holder at the Closing in accordance with Section 2.2(a) of the
Purchase Agreement (or the corresponding provision of any Designated Holder Purchase Agreement), which Warrants shall be exercisable
upon Stockholder Approval and have a term of exercise equal to five years, in the forms of Exhibit C-1 and Exhibit
C-2 attached to the Purchase Agreement (or the corresponding exhibits to any Designated Holder Purchase Agreement).


 


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


 


Section 2. Designation,
Amount and Par Value. The series of preferred stock shall be designated as its Series A 17.38% Convertible Preferred Stock
(the “Preferred Stock”) and the number of shares so designated shall be up to 22,140 (which may be increased
without the written consent of all of the holders of the Preferred Stock (each, a “Holder” and collectively,
the “Holders”)). Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value
equal to $1,000, subject to increase set forth in Section 3 below (the “Stated Value”).


 


Section 3. Dividends.


 






    	 	58	 



     


    

a)    
Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay through the ten-year
anniversary of the applicable Original Issue Date, cumulative dividends at the rate per share (as a percentage of the Stated Value
per share) of 17.38% per annum, payable semi-annually on April 15 and October 15, beginning on the first such date after the applicable
Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend
Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding
Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares
of Common Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock,
the “Dividend Share Amount”) provided, however, upon the conversion of Preferred Stock
prior to the ten-year anniversary of the applicable Original Issue Date, the Corporation shall also pay to the Holders of the Preferred
Stock so converted cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock as set forth in this Section 3(a), or a combination thereof, with respect to the Preferred Stock so converted
in an amount equal to $1,738 per $1,000 of Stated Value of the Preferred Stock, less the amount of all prior semi-annual dividends
paid on such converted Preferred Stock before the relevant Conversion Date (the “Make-Whole Payment”). The form
of dividend payments and Make-Whole Payments to each Holder shall be determined in the following order of priority: (i) if funds
are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading
Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only,
(ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the Dividend Notice
Period, at the sole election of the Corporation, in cash and/or shares of Common Stock which shall be valued at the Dividend Conversion
Rate, (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the
Dividend Notice Period, in shares of Common Stock which shall be valued at the Dividend Conversion Rate, and (iv) if funds are
not legally available for the payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period,
then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to, and
increase, the outstanding Stated Value. If the Corporation will pay any dividend in the form of cash, it shall provide each Holder
with notice of the same not later than the first day of the month of such Dividend Payment Date. For the avoidance of doubt, the
total amount of dividends and any Make-Whole Payment payable by the Corporation pursuant to this Section 3(a) shall not exceed
$1,738 per $1,000 of Stated Value of the Preferred Stock.


 


b)    
[Reserved].


 






    	 	59	 



     


    

c)    
Dividend Calculations. Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting
of twelve 30 calendar day periods, and shall accrue daily commencing on the applicable Original Issue Date, and shall be deemed
to accrue from such date through the ten-year anniversary of such Original Issue Date whether or not earned or declared and whether
or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Payment of
dividends in shares of Common Stock shall otherwise occur pursuant to Section 6(c)(i) herein and, solely for purposes of the payment
of dividends in shares, the Dividend Payment Date shall be deemed the Conversion Date. Dividends shall cease to accrue with respect
to any Preferred Stock converted, provided that, the Corporation actually delivers the Conversion Shares within the time period
required by Section 6(c)(i) herein. Except as otherwise provided herein, if at any time the Corporation pays dividends partially
in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares
of Preferred Stock held by each Holder on such Dividend Payment Date.


 


d)    
Late Fees. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within thirty calendar
days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the
rate of 18% per annum or the lesser rate permitted by applicable law which shall accrue daily from the Dividend Payment Date through
and including the date of actual payment in full.


 


e)    
[Reserved]


 


f)     
Special Reserves. The Corporation acknowledges and agrees that the capital of the Corporation (as such term is used
in Section 154 of the Delaware General Corporation Law) in respect of the Preferred Stock and any future issuances of the Corporation’s
capital stock shall be equal to the aggregate par value of such Preferred Stock or capital stock, as the case may be. The Corporation
also acknowledges and agrees that it shall not create any special reserves under Section 171 of the Delaware General Corporation
Law without the prior written consent of each Holder.


 


Section 4. Voting Rights. Except
as otherwise provided herein or as otherwise required by law, the Preferred Stock shall have no voting rights. However, as long
as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority
of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to
the Preferred Stock, (b) authorize or create any class of stock ranking as to dividends, redemption or distribution of assets upon
a Liquidation (as defined in Section 5) senior to, or otherwise pari passu with, the Preferred Stock, (c) amend its certificate
of incorporation or other charter documents, including this Certificate of Designation, in any manner that adversely affects any
rights of the Holders, (d) increase the number of authorized shares of Preferred Stock, or (e) enter into any agreement with respect
to any of the foregoing.


 


Section 5. Liquidation. Upon
any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”),
the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount and
form of consideration that a holder of Common Stock would receive if the Preferred Stock were fully converted (disregarding for
such purposes any conversion limitations hereunder) to Common Stock which amounts shall be paid pari passu with all holders of
Common Stock. A Fundamental Transaction or Change of Control Transaction shall be deemed a Liquidation; provided, that a Change
of Control Transaction where the Corporation is the surviving corporation and the Common Stock remains listed or quoted on any
trading market, shall NOT be deemed a Liquidation. The Corporation shall mail written notice of any such Liquidation, not less
than 20 days prior to the payment date stated therein, to each Holder.


 






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Section 6. Conversion.


 


a)    
 


 


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


 


ii.                   
Automatic Conversion Upon Corporation’s Receipt of Stockholder Approval. If not previously converted at the
option of the Holder in accordance with Section 6(a)(i) above, each share of Preferred Stock shall be automatically converted,
without any further action by the Holder, into that number of shares of Common Stock (subject to the limitations set forth in Section
6(d) and Section 6(e)) determined by dividing the Stated Value of such share of Preferred Stock by the Conversion Price, on the
90th day following the filing by the Corporation of a Current Report on Form 8-K with the Commission stating that the
Corporation has received the Stockholder Approval and the corresponding amendment to the Corporation’s certificate of incorporation
has been effected (the time and date of such filing being referred to as the “Mandatory Conversion Date” and
either the Optional Conversion Date or the Mandatory Conversion Date being referred to herein as the “Conversion Date”).
Upon the Mandatory Conversion Date, (i) the shares of Preferred Stock being converted shall be deemed converted into shares of
Common Stock and (ii) the Holder’s rights as a holder of such converted shares of Preferred Stock shall cease and terminate,
excepting only any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the
Corporation to comply with the terms of this Certificate of Designation; provided, that, except in the case of the Designated Holder,
if an automatic conversion would make the Holder the beneficial owner of a number of shares of Common Stock in excess of the Beneficial
Ownership Limitation, then such automatic conversion shall be held in abeyance with respect to such Holder until the Holder notifies
the Corporation that it is able to receive such Conversion Shares, but all rights under this Certificate of Designation shall cease
to apply, other than the right to convert.


 






    	 	61	 



     


    

b)    
Conversion Price. The conversion price for the Preferred Stock shall equal $1.15, subject to adjustment as set forth
herein (the “Conversion Price”).


 


c)    
Mechanics of Conversion





 








i.                   
Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) three (3) Trading Days and (ii)
the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share
Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of
Conversion Shares being acquired upon the conversion of the Preferred Stock, which Conversion Shares shall be free of restrictive
legends and trading restrictions (including, if the Corporation has given continuous notice pursuant to Section 3(b) for payment
of dividends and Make-Whole Payments in shares of Common Stock at least 20 Trading Days prior to the date on which the Notice of
Conversion is delivered to the Corporation, shares of Common Stock representing the payment of accrued dividends and Make-Whole
Payments otherwise determined pursuant to Section 3(a) but assuming that the Dividend Notice Period is the 20 Trading Days period
immediately prior to the date on which the Notice of Conversion is delivered to the Corporation and excluding for such issuance
the condition that the Corporation deliver the Dividend Share Amount as to such dividend payment prior to the commencement of the
Dividend Notice Period), and (B) a wire transfer in the amount of the Make Whole Payment and accrued and unpaid dividends (if the
Corporation has elected or is required to pay accrued dividends in cash). The Corporation shall deliver the Conversion Shares electronically
through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on
the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice
of Conversion.


 






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ii.                   
Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not
delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written
notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which
event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation
and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice
of Conversion.


 


iii.                   
Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion
Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any
action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of
any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination,
or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged
violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such
obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however,
that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such
Holder. In the event a Holder shall elect to convert any or all of the Stated Value of its Preferred Stock or in connection with
any mandatory conversion pursuant to Section 6(a)(ii), the Corporation may not refuse conversion based on any claim that such Holder
or any one associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason,
unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred
Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder
in the amount of 150% of the Stated Value of Preferred Stock which is subject to the injunction, which bond shall remain in effect
until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder
to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable,
cash, upon a properly noticed conversion or in connection with any mandatory conversion. If the Corporation fails to deliver to
a Holder such Conversion Shares pursuant to Section 6(c)(i) by the Share Delivery Date applicable to such conversion, the Corporation
shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Stated Value of Preferred Stock
being converted, $50 per Trading Day (increasing to $100 per Trading Day on the third Trading Day and increasing to $200 per Trading
Day on the sixth Trading Day after such damages begin to accrue) for each Trading Day commencing one Trading Day after the Share
Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s
right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein
and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking
to enforce damages pursuant to any other Section hereof or under applicable law.


 






    	 	63	 



     


    

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


 






    	 	64	 



     


    

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


 


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


 


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


 






    	 	65	 



     


    

d)    
Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained herein, except in the case of
the Designated Holder, the Corporation shall not effect any conversion of the Preferred Stock, and a Holder shall not have the
right to convert any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the
applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together
with such Holder or any of such Holder’s Affiliates (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 such Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being made,
but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Stated
Value of Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or
conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion
or exercise analogous to the limitation contained herein (including, without limitation, the Preferred Stock or the Warrants) beneficially
owned by such Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for
purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the
determination of whether the Preferred Stock is convertible (in relation to other securities owned by such Holder together with
any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible shall be in the sole discretion
of such Holder (provided that such determination by Holder shall be reasonably acceptable to the Corporation), and the submission
of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may
be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how
many shares of the Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance
with this restriction, each Holder (other than the Designated Holder) will be deemed to represent to the Corporation each time
it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph
and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination
as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. For purposes of this Section 6(d), in determining the number of outstanding shares of Common
Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i)
the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent
public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer Agent setting forth
the number of shares of Common Stock outstanding.  Upon the written or oral request of a Holder, the Corporation shall within
two Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding.  In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Corporation, including the Preferred Stock, by such Holder or its Affiliates 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 shares of Preferred Stock, 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 conversion
of Preferred Stock held by the applicable Holder; it being understood and agreed that neither the Beneficial Ownership Limitation
nor this Section 6(d) shall apply to the Designated Holder. A Holder, upon notice to the Corporation, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 6(d) applicable to its Preferred Stock provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock upon conversion of the Preferred Stock held by the Holder and the provisions of
this Section 6(d) shall continue to apply. Any such increase in the Beneficial Ownership Limitation will not be effective until
the 61st day after such notice is delivered to the Corporation and shall only apply to such Holder and no other Holder.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms
of this Section 6(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Preferred Stock, except for
a successor holder of Preferred Stock initially issued to the Designated Holder.


 






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e)    
Issuance Limitations. Notwithstanding anything herein to the contrary, if the Corporation has not obtained Stockholder
Approval, then the Corporation may not issue, upon conversion of the Preferred Stock, a number of shares of Common Stock which,
when aggregated with any shares of Common Stock issued on or after the applicable Original Issue Date and prior to such Conversion
Date in connection with any conversion of Preferred Stock or other securities issued pursuant to the Purchase Agreement, would
exceed 56,891,673 shares of Common Stock (subject to adjustment for forward and reverse stock splits, recapitalizations and the
like) (such number of shares, the “Issuable Maximum”). Each Holder shall be entitled to a portion of the Issuable
Maximum equal to the quotient obtained by dividing (x) the aggregate Stated Value of such Holder’s Preferred Stock by (y)
the aggregate Stated Value of all Preferred Stock issued to all Holders. In addition, each Holder may allocate its pro-rata portion
of the Issuable Maximum among Preferred Stock and Warrants held by it in its sole discretion. Such portion shall be adjusted upward
ratably in the event a Holder no longer holds any Preferred Stock or Warrants and the amount of shares issued to such Holder pursuant
to such Holder’s Preferred Stock and Warrants was less than such Holder’s pro-rata share of the Issuable Maximum.


 


Section 7. Certain Adjustments.


 


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


 






    	 	67	 



     


    

b)    
[RESERVED]


 


c)    
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, if at any time subsequent
to the applicable Original Issue Date the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock, but excluding
any issuances under any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Corporation (the “Purchase
Rights”), then each Holder of Preferred Stock will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common
Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation and the Issuable Maximum) immediately before the date
on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, to the extent that the right of a Holder (other than the Designated Holder) to participate in any such Purchase
Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate
in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right
to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its
right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).


 


d)    
Pro Rata Distributions. During such time as this Preferred Stock is outstanding, if the Corporation shall declare
or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction,
but excluding any dividend that results in adjustment to the Conversion Price pursuant to Section 7(a) above) (a “Distribution”),
at any time after the issuance of this Preferred Stock, then, in each such case, the Holder shall be entitled to participate in
such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares
of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any limitations on conversion hereof,
including without limitation, the Beneficial Ownership Limitation and the Issuable Maximum) immediately before the date of which
a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the
right of a Holder (other than the Designated Holder) 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).


 






    	 	68	 



     


    

e)    
Fundamental Transaction. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly
or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another
Person, (ii) the Corporation, directly or indirectly, effects any sale, 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 Corporation or another Person) is completed pursuant to which holders
of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted
by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the
Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares
of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”),
then, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction (had the Conversion Time occurred immediately prior to the
occurrence of such Fundamental Transaction and without regard to any limitation in Section 6(d) and Section 6(e) on the conversion
of this Preferred Stock), the number of shares of common stock of the successor or acquiring corporation or shares of Common Stock
of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred
Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) and Section
6(e) on the conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price
shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable
in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of
this Preferred Stock following such Fundamental Transaction.


 






    	 	69	 



     


    

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


 


g)    
Notice to the Holders.


 


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


 


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


 






    	 	70	 



     


    

Section 8. Miscellaneous.


 


a)              
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including,
without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile or e-mail, or sent by
a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: General
Counsel, facsimile number (510) 225-2645, e-mail address GeneralCounsel@amyris.com, or such other facsimile number, e-mail address
or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section
8. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and
delivered personally, by facsimile or 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 Corporation, or if no such facsimile
number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as
set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number
or e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading
Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail
at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time)
on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.


 






    	 	71	 



     


    

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


 


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


 


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


 






    	 	72	 



     


    

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


 


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


 


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


 


h)              
Status of Converted or Redeemed Preferred Stock. If any shares of Preferred Stock shall be converted, redeemed or
reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall
no longer be designated as Series A 17.38% Convertible Preferred Stock.


 


 


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


 


 






    	 	73	 



     


    

RESOLVED, FURTHER, that the Chairman, the president or any vice-president,
and the secretary or any assistant secretary, of the Corporation be and they hereby are authorized and directed to prepare and
file this Certificate of Designation of Preferences, Rights and Limitations in accordance with the foregoing resolution and the
provisions of Delaware law.


 


IN WITNESS WHEREOF, the undersigned have executed
this Certificate this ___ day of May 2017.


 


	
        __________________________________________

        Name:

        Title:

         
	
        __________________________________________

        Name:

        Title:

         



 


 


 


 


 






    	 	74	 



     


    

ANNEX A


 


NOTICE OF CONVERSION


 


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


 


The undersigned hereby elects to convert the number of shares of
Series A 17.38% Convertible Preferred Stock indicated below into shares of common stock, par value $0.0001 per share (the “Common
Stock”), of Amyris, Inc., a Delaware corporation (the “Corporation”), according to the conditions
hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions
as may be required by the Corporation in accordance with the Purchase Agreement. No fee will be charged to the Holders for any
conversion, except for any such transfer taxes.


 


Conversion calculations:


 


	
        Date to Effect Conversion: _____________________________________________

         

	
        Number of shares of Preferred Stock owned prior to Conversion: _______________

         

	
        Number of shares of Preferred Stock to be Converted: ________________________

         

	
        Stated Value of shares of Preferred Stock to be Converted: ____________________

         

	
        Number of shares of Common Stock to be Issued: ___________________________

         

	
        Applicable Conversion Price:____________________________________________

         

	
        Number of shares of Preferred Stock subsequent to Conversion: ________________

         

	
        Address for Delivery: ______________________

        or

        DWAC Instructions:

        Broker no: _________

        Account no: ___________

	 	
         

        [HOLDER]

         

        By:___________________________________

        Name:

        Title:

	 	 


 


 



    	 	75	 



     


    







EXHIBIT A-2


 


AMYRIS, INC.


 


CERTIFICATE OF DESIGNATION OF PREFERENCES, 


RIGHTS AND LIMITATIONS


OF


SERIES B 17.38%
CONVERTIBLE PREFERRED STOCK


 


PURSUANT TO SECTION 151 OF
THE 


DELAWARE GENERAL CORPORATION
LAW


 


The undersigned, John Melo and Stephen Dobson,
do hereby certify that:


 


1. They are the President and Assistant Secretary,
respectively, of Amyris, Inc., a Delaware corporation (the “Corporation”).


 


2. The Corporation is authorized to issue 5,000,000
shares of preferred stock, none of which have been issued.


 


3. The following resolutions were duly adopted
by the board of directors of the Corporation (the “Board of Directors”):


 


WHEREAS, the certificate of incorporation of
the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 5,000,000 shares, $0.0001
par value per share, issuable from time to time in one or more series;


 


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


 


WHEREAS, it is the desire of the Board of Directors,
pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of
the preferred stock, which shall consist of, except as otherwise set forth in the Purchase Agreement, up to 105,204 shares of the
preferred stock which the Corporation has the authority to issue, as follows:


 


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


 






    	 	76	 



     


    

TERMS OF PREFERRED STOCK


 


Section 1. Definitions. For
the purposes hereof, the following terms shall have the following meanings:


 


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


 


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


 


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


 


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


 


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


 


“Change of Control Transaction”
means the occurrence after the applicable Original Issue Date of any of (a) an acquisition by an individual or legal entity or
“group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through
legal or beneficial ownership of capital stock of the Corporation, by contract or otherwise) of in excess of 50% of the voting
securities of the Corporation, (b) the Corporation merges into or consolidates with any other Person, or any Person merges into
or consolidates with the Corporation and, after giving effect to such transaction, the stockholders of the Corporation immediately
prior to such transaction own less than 50% of the aggregate voting power of the Corporation or the successor entity of such transaction,
(c) the Corporation sells or transfers all or substantially all of its assets to another Person and the stockholders of the Corporation
immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after
the transaction, (d) a replacement at one time or within a one year period of more than one-half of the members of the Board of
Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the applicable
Original Issue Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination
to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the applicable
Original Issue Date), or (e) the execution by the Corporation of an agreement to which the Corporation is a party or by which it
is bound, providing for any of the events set forth in clauses (a) through (d) above.


 






    	 	77	 



     


    

“Closing” means
the closing of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement (or the corresponding
provision of any Designated Holder Purchase Agreement).


 


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


 


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


 


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


 


“Conversion Amount”
means the Stated Value at issue.


 


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


 


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


 


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


 


“Designated Holder”
means the Person designated by the Board to become a Holder and a “Designated Holder” pursuant to the Securities Purchase
Agreement contemplated by clause (i) of the definition of Purchase Agreement, as amended from time to time, or another Securities
Purchase Agreement to be entered into by such Person with the Corporation (the “Designated Holder Purchase Agreement”).


 


“Dividend Conversion Rate”
means $1.15, subject to adjustment for forward and reverse stock splits and the like that occur after the initial Original Issue
Date.


 


“Dividend Conversion Shares”
shall have the meaning set forth in Section 3(a).


 


“Dividend Notice Period”
shall have the meaning set forth in Section 3(a).


 


“Dividend Payment Date”
shall have the meaning set forth in Section 3(a).


 


“Dividend Share Amount”
shall have the meaning set forth in Section 3(a).


 






    	 	78	 



     


    

“Equity Conditions”
means, during the period in question, (a) the Corporation shall have duly honored all conversions scheduled to occur or occurring
by virtue of one or more Notices of Conversion of the applicable Holder on or prior to the dates so requested or required, if any,
(b) the Corporation shall have paid all late fees, liquidated damages and other amounts owing to the applicable Holder in respect
of the Preferred Stock, (c)(i) there is an effective registration statement pursuant to which either (A) the Corporation may issue
Conversion Shares (and shares issuable in lieu of cash payments of dividends and Make Whole Payments) or (B) the Holders are permitted
to utilize the prospectus thereunder to resell all of the shares of Common Stock issuable pursuant to the Transaction Documents
(and shares issuable in lieu of cash payments of dividends and Make Whole Payments) (and the Corporation believes, in good faith,
that such effectiveness will continue uninterrupted for the foreseeable future) or (ii) all of the Conversion Shares issuable pursuant
to the Transaction Documents (and shares issuable in lieu of cash payments of dividends and Make Whole Payments) may be resold
pursuant to Rule 144 without volume or manner-of-sale restrictions or current public information requirements as determined by
the counsel to the Corporation as set forth in a written opinion letter to such effect, addressed and acceptable to the Transfer
Agent and the affected Holders or (iii) all of the Conversion Shares (and shares issuable in lieu of cash payments of dividends
and Make Whole Payments) may be issued to the Holder pursuant to Section 3(a)(9) of the Securities Act and immediately resold without
restriction, (d) the Common Stock is trading on a Trading Market and all of the shares issuable pursuant to the Transaction Documents
(and shares issuable in lieu of cash payments of dividends and Make Whole Payments) are listed or quoted for trading on such Trading
Market (and the Corporation believes, in good faith, that trading of the Common Stock on a Trading Market will continue uninterrupted
for the foreseeable future), (e) there is a sufficient number of authorized, but unissued and otherwise unreserved, shares of Common
Stock for the issuance of all of the shares then issuable pursuant to the Transaction Documents (and shares issuable in lieu of
cash payments of dividends and Make Whole Payments), (f) the issuance of the shares in question to the applicable Holder would
not violate the limitations set forth in Section 6(d) and Section 6(e) herein, (g) there has been no public announcement of a pending
or proposed Fundamental Transaction or Change of Control Transaction that has not been consummated, (h) Stockholder Approval shall
have been received and effective and (i) the applicable Holder (other than the Designated Holder) is not in possession of any information
provided by the Corporation, any of its Subsidiaries, or any of their officers, directors, employees, agents or Affiliates, that
constitutes, or may constitute, material non-public information.


 


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


 


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


 


“GAAP” means United
States generally accepted accounting principles.


 


“Holder” shall
have the meaning given such term in Section 2.


 






    	 	79	 



     


    

“Junior Securities”
means the Common Stock and all other Common Stock Equivalents of the Corporation other than those securities which are explicitly
senior or pari passu to the Preferred Stock in dividend rights or liquidation preference, it being understood and agreed
that (i) the Corporation’s Series A Preferred Stock issued pursuant to the Purchase Agreement explicitly rank pari passu
to the Preferred Stock in that regard, and (ii) any convertible indebtedness of the Corporation shall be deemed senior to the Preferred
Stock in that regard.


 


“Liens” means a
lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“Liquidation” shall
have the meaning set forth in Section 5.


 


“Make-Whole Payment”
shall have the meaning set forth in Section 3(a).


 


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


 


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


 


“Original Issue Date”
means, with respect to a share of Preferred Stock, the date of the first issuance of any such share of Preferred Stock regardless
of the number of transfers of any such share of Preferred Stock and regardless of the number of certificates which may be issued
to evidence such Preferred Stock.


 


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


 


“Preferred Stock”
shall have the meaning set forth in Section 2.


 


“Purchase Agreement”
means (i) the Securities Purchase Agreement, dated as of May __, 2017, among the Corporation and the original Holders, as amended,
modified or supplemented from time to time in accordance with its terms or (ii) any Designated Holder Purchase Agreement, as applicable.


 


“Securities” means
the Preferred Stock, the Warrants, the Warrant Shares and the Underlying Shares.


 


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


 


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


 


“Stated Value”
shall have the meaning set forth in Section 2, as the same may be increased pursuant to Section 3.


 






    	 	80	 



     


    

“Stockholder Approval”
means both (x) such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor
entity) from the stockholders of the Corporation with respect to the transactions contemplated by the Transaction Documents, including
the issuance of all of the Underlying Shares in excess of 19.99% of the issued and outstanding Common Stock on April 12, 2017 and
(y) such approval for a reverse stock split of Common Stock to permit the issuance of all shares of Common Stock issuable pursuant
to the Preferred Stock (including shares issuable in lieu of cash payment of dividends and Make Whole Payments) and Warrants.


 


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


 


“Subsidiary” means
any subsidiary of the Corporation as disclosed in the Corporation’s Annual Report on Form 10-K for the year ended December 31,
2016 and shall, where applicable, also include any direct or indirect subsidiary of the Corporation formed or acquired after December
31, 2016.


 


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


 


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


 


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


 


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


 


“Transfer Agent”
means Wells Fargo Shareholder Services, the current transfer agent of the Corporation with a mailing address of 1110 Centre Point
Curve, Suite 101, Mendota Heights, MN 55120 and a telephone number of (855) 217-6361, and any successor transfer agent of the Corporation.


 


“Underlying Shares”
means the shares of Common Stock issued and issuable (x) upon conversion or redemption of the Preferred Stock, (y) upon exercise
of the Warrants and (z) in lieu of the cash payment of dividends on the Preferred Stock and Make-Whole Payments in accordance with
the terms of this Certificate of Designation.


 






    	 	81	 



     


    

“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 in the “Pink Sheets” published by OTC Markets, Inc. (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent bid price per 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 Purchasers
of a majority in interest of the Securities then outstanding and reasonably acceptable to the Corporation, the fees and expenses
of which shall be paid by the Corporation.


 


“Warrants” means,
collectively, the Common Stock purchase warrants delivered to the Holder at the Closing in accordance with Section 2.2(a) of the
Purchase Agreement (or the corresponding provision of any Designated Holder Purchase Agreement), which Warrants shall be exercisable
upon Stockholder Approval and have a term of exercise equal to five years, in the forms of Exhibit C-1 and Exhibit
C-2 attached to the Purchase Agreement (or the corresponding exhibits to any Designated Holder Purchase Agreement).


 


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


 


Section 2. Designation,
Amount and Par Value. The series of preferred stock shall be designated as its Series B 17.38% Convertible Preferred Stock
(the “Preferred Stock”) and the number of shares so designated shall be up to 105,204 (which may be increased
without the written consent of all of the holders of the Preferred Stock (each, a “Holder” and collectively,
the “Holders”)). Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value
equal to $1,000, subject to increase set forth in Section 3 below (the “Stated Value”).


 


Section 3. Dividends.


 






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g)    
Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay through the ten-year
anniversary of the applicable Original Issue Date, cumulative dividends at the rate per share (as a percentage of the Stated Value
per share) of 17.38% per annum, payable semi-annually on April 15 and October 15, beginning on the first such date after the applicable
Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend
Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding
Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares
of Common Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock,
the “Dividend Share Amount”) provided, however, upon the conversion of Preferred Stock
prior to the ten-year anniversary of the applicable Original Issue Date, the Corporation shall also pay to the Holders of the Preferred
Stock so converted cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock as set forth in this Section 3(a), or a combination thereof, with respect to the Preferred Stock so converted
in an amount equal to $1,738 per $1,000 of Stated Value of the Preferred Stock, less the amount of all prior semi-annual dividends
paid on such converted Preferred Stock before the relevant Conversion Date (the “Make-Whole Payment”). The form
of dividend payments and Make-Whole Payments to each Holder shall be determined in the following order of priority: (i) if funds
are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading
Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only,
(ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the Dividend Notice
Period, at the sole election of the Corporation, in cash and/or shares of Common Stock which shall be valued at the Dividend Conversion
Rate, (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the
Dividend Notice Period, in shares of Common Stock which shall be valued at the Dividend Conversion Rate, and (iv) if funds are
not legally available for the payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period,
then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to, and
increase, the outstanding Stated Value. If the Corporation will pay any dividend in the form of cash, it shall provide each Holder
with notice of the same not later than the first day of the month of such Dividend Payment Date. For the avoidance of doubt, the
total amount of dividends and any Make-Whole Payment payable by the Corporation pursuant to this Section 3(a) shall not exceed
$1,738 per $1,000 of Stated Value of the Preferred Stock.


 


h)    
[Reserved].


 


i)     
Dividend Calculations. Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting
of twelve 30 calendar day periods, and shall accrue daily commencing on the applicable Original Issue Date, and shall be deemed
to accrue from such date through the ten-year anniversary of such Original Issue Date whether or not earned or declared and whether
or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Payment of
dividends in shares of Common Stock shall otherwise occur pursuant to Section 6(c)(i) herein and, solely for purposes of the payment
of dividends in shares, the Dividend Payment Date shall be deemed the Conversion Date. Dividends shall cease to accrue with respect
to any Preferred Stock converted, provided that, the Corporation actually delivers the Conversion Shares within the time period
required by Section 6(c)(i) herein. Except as otherwise provided herein, if at any time the Corporation pays dividends partially
in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares
of Preferred Stock held by each Holder on such Dividend Payment Date.


 






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j)     
Late Fees. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within thirty calendar
days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the
rate of 18% per annum or the lesser rate permitted by applicable law which shall accrue daily from the Dividend Payment Date through
and including the date of actual payment in full.


 


k)    
[Reserved]


 


l)     
Special Reserves. The Corporation acknowledges and agrees that the capital of the Corporation (as such term is used
in Section 154 of the Delaware General Corporation Law) in respect of the Preferred Stock and any future issuances of the Corporation’s
capital stock shall be equal to the aggregate par value of such Preferred Stock or capital stock, as the case may be. The Corporation
also acknowledges and agrees that it shall not create any special reserves under Section 171 of the Delaware General Corporation
Law without the prior written consent of each Holder.


 


Section 4. Voting Rights. Except
as otherwise provided herein or as otherwise required by law, the Preferred Stock shall have no voting rights. However, as long
as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority
of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to
the Preferred Stock, (b) authorize or create any class of stock ranking as to dividends, redemption or distribution of assets upon
a Liquidation (as defined in Section 5) senior to, or otherwise pari passu with, the Preferred Stock, (c) amend its certificate
of incorporation or other charter documents, including this Certificate of Designation, in any manner that adversely affects any
rights of the Holders, (d) increase the number of authorized shares of Preferred Stock, or (e) enter into any agreement with respect
to any of the foregoing.


 


Section 5. Liquidation. Upon
any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”),
the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount and
form of consideration that a holder of Common Stock would receive if the Preferred Stock were fully converted (disregarding for
such purposes any conversion limitations hereunder) to Common Stock which amounts shall be paid pari passu with all holders of
Common Stock. A Fundamental Transaction or Change of Control Transaction shall be deemed a Liquidation; provided, that a Change
of Control Transaction where the Corporation is the surviving corporation and the Common Stock remains listed or quoted on any
trading market, shall NOT be deemed a Liquidation. The Corporation shall mail written notice of any such Liquidation, not less
than 20 days prior to the payment date stated therein, to each Holder.


 






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Section 6. Conversion.


 


f)     
 


 


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


 


iv.                   
Automatic Conversion Upon Corporation’s Receipt of Stockholder Approval. If not previously converted at the
option of the Holder in accordance with Section 6(a)(i) above, each share of Preferred Stock shall be automatically converted,
without any further action by the Holder, into that number of shares of Common Stock (subject to the limitations set forth in Section
6(d) and Section 6(e)) determined by dividing the Stated Value of such share of Preferred Stock by the Conversion Price, on the
90th day following the filing by the Corporation of a Current Report on Form 8-K with the Commission stating that the
Corporation has received the Stockholder Approval and the corresponding amendment to the Corporation’s certificate of incorporation
has been effected (the time and date of such filing being referred to as the “Mandatory Conversion Date” and
either the Optional Conversion Date or the Mandatory Conversion Date being referred to herein as the “Conversion Date”).
Upon the Mandatory Conversion Date, (i) the shares of Preferred Stock being converted shall be deemed converted into shares of
Common Stock and (ii) the Holder’s rights as a holder of such converted shares of Preferred Stock shall cease and terminate,
excepting only any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the
Corporation to comply with the terms of this Certificate of Designation; provided, that, except in the case of the Designated Holder,
if an automatic conversion would make the Holder the beneficial owner of a number of shares of Common Stock in excess of the Beneficial
Ownership Limitation, then such automatic conversion shall be held in abeyance with respect to such Holder until the Holder notifies
the Corporation that it is able to receive such Conversion Shares, but all rights under this Certificate of Designation shall cease
to apply, other than the right to convert.


 






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g)    
Conversion Price. The conversion price for the Preferred Stock shall equal $1.15, subject to adjustment as set forth
herein (the “Conversion Price”).


 


h)    
Mechanics of Conversion


 





viii.                   
Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) three (3) Trading Days and (ii)
the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share
Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of
Conversion Shares being acquired upon the conversion of the Preferred Stock, which Conversion Shares shall be free of restrictive
legends and trading restrictions (including, if the Corporation has given continuous notice pursuant to Section 3(b) for payment
of dividends and Make-Whole Payments in shares of Common Stock at least 20 Trading Days prior to the date on which the Notice of
Conversion is delivered to the Corporation, shares of Common Stock representing the payment of accrued dividends and Make-Whole
Payments otherwise determined pursuant to Section 3(a) but assuming that the Dividend Notice Period is the 20 Trading Days period
immediately prior to the date on which the Notice of Conversion is delivered to the Corporation and excluding for such issuance
the condition that the Corporation deliver the Dividend Share Amount as to such dividend payment prior to the commencement of the
Dividend Notice Period), and (B) a wire transfer in the amount of the Make Whole Payment and accrued and unpaid dividends (if the
Corporation has elected or is required to pay accrued dividends in cash). The Corporation shall deliver the Conversion Shares electronically
through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on
the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice
of Conversion.


 






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ix.                   
Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not
delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written
notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which
event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation
and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice
of Conversion.


 


x.                   
Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion
Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any
action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of
any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination,
or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged
violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such
obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however,
that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such
Holder. In the event a Holder shall elect to convert any or all of the Stated Value of its Preferred Stock or in connection with
any mandatory conversion pursuant to Section 6(a)(ii), the Corporation may not refuse conversion based on any claim that such Holder
or any one associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason,
unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred
Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder
in the amount of 150% of the Stated Value of Preferred Stock which is subject to the injunction, which bond shall remain in effect
until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder
to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable,
cash, upon a properly noticed conversion or in connection with any mandatory conversion. If the Corporation fails to deliver to
a Holder such Conversion Shares pursuant to Section 6(c)(i) by the Share Delivery Date applicable to such conversion, the Corporation
shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Stated Value of Preferred Stock
being converted, $50 per Trading Day (increasing to $100 per Trading Day on the third Trading Day and increasing to $200 per Trading
Day on the sixth Trading Day after such damages begin to accrue) for each Trading Day commencing one Trading Day after the Share
Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s
right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein
and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking
to enforce damages pursuant to any other Section hereof or under applicable law.


 






    	 	87	 



     


    

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


 






    	 	88	 



     


    

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


 


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


 


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


 






    	 	89	 



     


    

i)     
Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained herein, except in the case of
the Designated Holder, the Corporation shall not effect any conversion of the Preferred Stock, and a Holder shall not have the
right to convert any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the
applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together
with such Holder or any of such Holder’s Affiliates (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 such Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being made,
but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Stated
Value of Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or
conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion
or exercise analogous to the limitation contained herein (including, without limitation, the Preferred Stock or the Warrants) beneficially
owned by such Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for
purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the
determination of whether the Preferred Stock is convertible (in relation to other securities owned by such Holder together with
any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible shall be in the sole discretion
of such Holder (provided that such determination by Holder shall be reasonably acceptable to the Corporation), and the submission
of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may
be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how
many shares of the Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance
with this restriction, each Holder (other than the Designated Holder) will be deemed to represent to the Corporation each time
it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph
and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination
as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. For purposes of this Section 6(d), in determining the number of outstanding shares of Common
Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i)
the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent
public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer Agent setting forth
the number of shares of Common Stock outstanding.  Upon the written or oral request of a Holder, the Corporation shall within
two Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding.  In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Corporation, including the Preferred Stock, by such Holder or its Affiliates 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 shares of Preferred Stock, 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 conversion
of Preferred Stock held by the applicable Holder; it being understood and agreed that neither the Beneficial Ownership Limitation
nor this Section 6(d) shall apply to the Designated Holder. A Holder, upon notice to the Corporation, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 6(d) applicable to its Preferred Stock provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock upon conversion of the Preferred Stock held by the Holder and the provisions of
this Section 6(d) shall continue to apply. Any such increase in the Beneficial Ownership Limitation will not be effective until
the 61st day after such notice is delivered to the Corporation and shall only apply to such Holder and no other Holder.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms
of this Section 6(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Preferred Stock, except for
a successor holder of Preferred Stock initially issued to the Designated Holder.


 






    	 	90	 



     


    

Section 7. Certain Adjustments.


 


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


 


i)     
[RESERVED]


 






    	 	91	 



     


    

j)     
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, if at any time subsequent
to the applicable Original Issue Date the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock, but excluding
any issuances under any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Corporation (the “Purchase
Rights”), then each Holder of Preferred Stock will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common
Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders
of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the
extent that the right of a Holder (other than the Designated Holder) to participate in any such Purchase Right would result in
the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase
Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent)
and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto
would not result in the Holder exceeding the Beneficial Ownership Limitation).


 


k)    
Pro Rata Distributions. During such time as this Preferred Stock is outstanding, if the Corporation shall declare
or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction,
but excluding any dividend that results in adjustment to the Conversion Price pursuant to Section 7(a) above) (a “Distribution”),
at any time after the issuance of this Preferred Stock, then, in each such case, the Holder shall be entitled to participate in
such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares
of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any limitations on conversion hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such
Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the participation in such Distribution (provided, however, to the extent that the right of a Holder (other than
the Designated Holder) 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).


 






    	 	92	 



     


    

l)     
Fundamental Transaction. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly
or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another
Person, (ii) the Corporation, directly or indirectly, effects any sale, 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 Corporation or another Person) is completed pursuant to which holders
of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted
by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the
Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares
of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”),
then, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction (had the Conversion Time occurred immediately prior to the
occurrence of such Fundamental Transaction and without regard to any limitation in Section 6(d) and Section 6(e) on the conversion
of this Preferred Stock), the number of shares of common stock of the successor or acquiring corporation or shares of Common Stock
of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred
Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) and Section
6(e) on the conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price
shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable
in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of
this Preferred Stock following such Fundamental Transaction.


 


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


 






    	 	93	 



     


    

n)    
Notice to the Holders.


 


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


 


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


 






    	 	94	 



     


    

Section 8. Miscellaneous.


 


i)               
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including,
without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile or e-mail, or sent by
a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: General
Counsel, facsimile number (510) 225-2645, e-mail address GeneralCounsel@amyris.com, or such other facsimile number, e-mail address
or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section
8. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and
delivered personally, by facsimile or 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 Corporation, or if no such facsimile
number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as
set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number
or e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading
Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail
at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time)
on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.


 


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


 


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


 






    	 	95	 



     


    

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


 


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


 


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


 






    	 	96	 



     


    

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


 


p)              
Status of Converted or Redeemed Preferred Stock. If any shares of Preferred Stock shall be converted, redeemed or
reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall
no longer be designated as Series B 17.38% Convertible Preferred Stock.


 


 


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


 


 


 






    	 	97	 



     


    

RESOLVED, FURTHER, that the Chairman, the president or any vice-president,
and the secretary or any assistant secretary, of the Corporation be and they hereby are authorized and directed to prepare and
file this Certificate of Designation of Preferences, Rights and Limitations in accordance with the foregoing resolution and the
provisions of Delaware law.


 


IN WITNESS WHEREOF, the undersigned have executed
this Certificate this ___ day of May 2017.


 


	
        __________________________________________

        Name:

        Title:

         
	
        __________________________________________

        Name:

        Title:

         



 


 


 


 


 






    	 	98	 



     


    

ANNEX A


 


NOTICE OF CONVERSION


 


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


 


The undersigned hereby elects to convert the number of shares of
Series B 17.38% Convertible Preferred Stock indicated below into shares of common stock, par value $0.0001 per share (the “Common
Stock”), of Amyris, Inc., a Delaware corporation (the “Corporation”), according to the conditions
hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions
as may be required by the Corporation in accordance with the Purchase Agreement. No fee will be charged to the Holders for any
conversion, except for any such transfer taxes.


 


Conversion calculations:


 


	
        Date to Effect Conversion: _____________________________________________

         

	
        Number of shares of Preferred Stock owned prior to Conversion: _______________

         

	
        Number of shares of Preferred Stock to be Converted: ________________________

         

	
        Stated Value of shares of Preferred Stock to be Converted: ____________________

         

	
        Number of shares of Common Stock to be Issued: ___________________________

         

	
        Applicable Conversion Price:____________________________________________

         

	
        Number of shares of Preferred Stock subsequent to Conversion: ________________

         

	
        Address for Delivery: ______________________

        or

        DWAC Instructions:

        Broker no: _________

        Account no: ___________

	 	
         

        [HOLDER]

         

        By:___________________________________

        Name:

        Title:

	 	 


 


 






    	 	99	 



     


    

EXHIBIT A-3


 


amyris, inc.


 


CERTIFICATE OF DESIGNATION OF PREFERENCES, 


RIGHTS AND LIMITATIONS


OF


SERIES C CONVERTIBLE
PREFERRED STOCK


 


PURSUANT TO SECTION 151 OF
THE 


delaware GENERAL CORPORATION
LAW


 


The undersigned, John Melo and Stephen Dobson,
do hereby certify that:


 


1. They are the President and Assistant Secretary,
respectively, of Amyris, Inc., a Delaware corporation (the “Corporation”).


 


2. The Corporation is authorized to issue 5,000,000
shares of preferred stock, none of which have been issued.


 


3. The following resolutions were duly adopted
by the board of directors of the Corporation (the “Board of Directors”):


 


WHEREAS, the certificate of incorporation of
the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 5,000,000 shares, $0.0001
par value per share, issuable from time to time in one or more series;


 


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


 


WHEREAS, it is the desire of the Board of Directors,
pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of
the preferred stock, which shall consist of up to 20,921 shares of the preferred stock which the Corporation has the authority
to issue, as follows:


 


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


 






    	 	100	 



     


    

TERMS OF PREFERRED STOCK


 


Section 1. Definitions. For
the purposes hereof, the following terms shall have the following meanings:


 


“Affiliate” means
any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 of the Securities Act. With respect to a Holder, any investment
fund or managed account that is managed on a discretionary basis by the same investment manager as such Holder will be deemed to
be an Affiliate of such Holder.


 


“Alternate Consideration”
shall have the meaning set forth in Section 7(d).


 


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


 


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


 


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


 


“Conversion Price”
means $1.00, subject to adjustments set forth in Section 7 below.


 


“Conversion Ratio”
for each share of Series C Convertible Preferred Stock shall be equal to the Stated Value divided by the Conversion Price.


 


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


 


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


 


“Fundamental Transaction”
shall have the meaning set forth in Section 7(d).


 


“Holder” shall
have the meaning given such term in Section 2.


 


“Liquidation” shall
have the meaning set forth in Section 5.


 


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


 






    	 	101	 



     


    

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


 


“Preferred Stock”
shall have the meaning set forth in Section 2.


 


“Reverse Split”
means a reverse stock split of the Common Stock effected subsequent to May 1, 2017; provided that, immediately after the effectiveness
of such reverse stock split, the number of shares of Common Stock authorized pursuant to the Corporation’s certificate of
incorporation is sufficient to allow for conversion to Common Stock of all outstanding shares of Preferred Stock.


 


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


 


“Stockholder Approval”
means the approval of the Corporation’s stockholders to the Reverse Split.


 


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


 


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


 


Section 2. Designation, Amount and
Par Value. The series of preferred stock shall be designated as its Series C Convertible Preferred Stock (the “Preferred
Stock”) and the number of shares so designated shall be up to 20,921 (which shall not be subject to increase without
the written consent of all of the holders of the Preferred Stock (each, a “Holder” and collectively, the “Holders”)).
Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value equal to $1,000, subject to increase
set forth in Section 3 below (the “Stated Value”).


 


Section 3. Dividends. If the
Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock
or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement
or other similar transaction) (a “Distribution”), then Holders shall be entitled to receive, and the Corporation
shall make payments on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis, disregarding for such purpose
any conversion limitations hereunder) to and in the same form as such Distribution is actually paid on shares of the Common Stock
when, as and if such dividends are paid on shares of the Common Stock. No other Distributions shall be paid on shares of Preferred
Stock. The Corporation shall not pay any dividends on the Common Stock unless the Corporation simultaneously complies with this
provision.


 






    	 	102	 



     


    

Section 4. Voting Rights. Except
as otherwise required by law, the Preferred Stock shall vote together as one class with the Common Stock (on an as-if-converted-to-Common-Stock
basis, disregarding for such purpose any conversion limitations hereunder), and, as long as any shares of Preferred Stock are outstanding,
the Corporation shall not, without the affirmative vote of the Holders of a majority of the then outstanding shares of the Preferred
Stock, (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend this Certificate
of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any
rights of the Holders, (c) increase the number of authorized shares of Preferred Stock, or (d) enter into any agreement with respect
to any of the foregoing.


 


Section 5. Liquidation. Upon
any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”),
the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation an amount equal to the
greater of (i) the par value, plus any accrued and unpaid dividends and any other amounts due and owing under this Certificate
of Designation, for each share of Preferred Stock before any distribution or payment shall be made to the holders of the Common
Stock, or (ii) the same amount and form of consideration that a holder of Common Stock would receive if the Preferred Stock were
fully converted (disregarding for such purposes any conversion limitations hereunder) to Common Stock which amounts shall be paid
pari passu with all holders of Common Stock, and if the assets of the Corporation shall be insufficient to pay in full such amounts,
then the entire assets to be distributed to the Holders shall be ratably distributed among the Holders in accordance with the respective
amounts that would be payable on such shares if all amounts payable thereon were paid in full. The Corporation shall provide notice
by facsimile or email of any such Liquidation, not less than twenty (20) days prior to the payment date stated therein, to each
Holder.


 


Section 6. Conversion Upon Stockholder
Approval.


 


j)     
Automatic Conversion Upon Corporation’s Receipt of Stockholder Approval. Each share of Preferred Stock shall
be automatically converted, without any further action by the Holder, into that number of shares of Common Stock equal to the Conversion
Ratio, immediately upon the Corporation filing a Current Report on Form 8-K with the Commission stating that the Corporation has
received Stockholder Approval and the corresponding amendment to the Corporation’s certificate of incorporation has been
effected (the time and date of such filing being referred to as the “Conversion Time”). Upon the Conversion Time, (i)
the shares of Preferred Stock being converted shall be deemed converted into shares of Common Stock and (ii) the Holder’s
rights as a holder of such converted shares of Preferred Stock shall cease and terminate, excepting only any remedies provided
herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to comply with the terms
of this Certificate of Designation.


 


k)     
Mechanics of Exchange.  



 






    	 	103	 



     


    

v.                   
Delivery of Shares Upon Conversion. Not later than ten (10) Trading Days after the Conversion Time (the “Share
Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder the number of Conversion
Shares being acquired upon the conversion of the Preferred Stock pursuant to Section 6(a) above. The Corporation shall use its
best efforts to deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through
the Depository Trust Company or another established clearing corporation performing similar functions.


 


vi.                   
Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion
of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion,
the Corporation shall issue to such Holder one whole share of Common Stock.


 


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


 


Section 7. Certain Adjustments.


 


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


 









    	 	104	 



     


    

p)    
Fundamental Transaction. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly
or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another
Person, (ii) the Corporation, directly or indirectly, effects any sale, 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 Corporation or another Person) is completed pursuant to which holders
of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted
by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the
Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares
of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”),
then, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction (had the Conversion Time occurred immediately prior to the
occurrence of such Fundamental Transaction), the number of shares of Common Stock of the successor or acquiring corporation or
of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred
Stock is convertible immediately prior to such Fundamental Transaction. For purposes of any such conversion, the determination
of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate
Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion
the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components
of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon
any conversion of this Preferred Stock following such Fundamental Transaction.


 






    	 	105	 



     


    

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


 


r)     
Notice to the Holders of Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any
provision of this Section 7, the Corporation shall promptly deliver to each Holder by facsimile or email a notice setting forth
the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.


 


Section 8.Miscellaneous.


 


q)    
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including,
without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile or e-mail, or sent by
a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: General
Counsel, facsimile number (510) 225-2645, e-mail address GeneralCounsel@amyris.com, or such other facsimile number, e-mail address
or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section
8. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and
delivered personally, by facsimile or 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 Corporation, or if no such facsimile
number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder. Any
notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile number or e-mail at the e-mail address set forth in
this Section 8 prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number or e-mail at the e-mail address set forth in this
Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading
Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt
by the party to whom such notice is required to be given.


 


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


 






    	 	106	 



     


    

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


 


t)     
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate
of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without
regard to the principles of conflict of laws thereof.


 


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


 


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


 


w)  
Status of Converted Preferred Stock. If any shares of Preferred Stock shall be converted, exchanged, redeemed or
reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall
no longer be designated as Series C Convertible Preferred Stock.


 


 


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


 


 






    	 	107	 



     


    

RESOLVED, FURTHER, that the Chairman, the president or any vice-president,
and the secretary or any assistant secretary, of the Corporation be and they hereby are authorized and directed to prepare and
file this Certificate of Designation of Preferences, Rights and Limitations in accordance with the foregoing resolution and the
provisions of Delaware law.


 


IN WITNESS WHEREOF, the undersigned have executed
this Certificate this ___ day of May 2017.


 


	
        __________________________________________

        Name:

        Title:

         
	
        __________________________________________

        Name:

        Title:



 


 


 






    	 	108	 



     


    

EXHIBIT C-1


 


NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY
IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES


 


COMMON STOCK PURCHASE WARRANT


 


AMYRIS, INC.  


 








	Warrant Shares: _______	Issue Date: May __, 2017



  


THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms
and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date that Stockholder
Approval (as defined in the Purchase Agreement) is obtained and deemed effective (the “Initial Exercise Date”)
and on or prior to the close of business on the five (5) year anniversary of the Initial Exercise Date (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Amyris, Inc., a Delaware 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).


 


Section 1.Definitions. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the
“Purchase Agreement”), dated May __, 2017, among the Company and the purchasers signatory thereto, including
the “Designated Holder” (as defined therein, the “Designated Holder”) as such definitions are in
effect on May __, 2017.


 


Section 2.Exercise.


 






    	 	109	 



     


    

a)              
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part,
at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of
a duly executed facsimile copy or PDF copy submitted by electronic (or e-mail attachment) of the Notice of Exercise in the form
annexed hereto (“Notice of Exercise”). Within the earlier of (i) three (3) 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 form 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 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 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.


 


b)              
Exercise Price. The exercise price per share of the Common Stock under this Warrant shall be $0.52 as to one half
of the Warrant Shares and $0.62 as to the remaining half of the Warrant Shares (the Holder shall be entitled to designate at which
price each such exercise is being made), subject to adjustment hereunder (the “Exercise Price”).


 


c)              
Cashless Exercise. This Warrant may be exercised, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date at the election of the Holder (in such Holder’s sole discretion) by means
of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient
obtained by dividing ((A-B) * (X)) by (A), where:


 


(A) = as applicable: (i) the VWAP on
the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed
and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to
Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(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 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 1(a) hereof after the close of “regular trading hours” on such Trading Day;


 






    	 	110	 



     


    

(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 characteristics of the Warrants being exercised, and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant.  The Company agrees not to
take any position contrary to this Section 2(c).


 


“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 in the “Pink
Sheets” published by OTC Markets Group, Inc. (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 Purchasers of a majority in
interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid
by 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 in the “Pink Sheets” published by OTC Markets Group, Inc. (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 Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.


 






    	 	111	 



     


    

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. Warrant Shares purchased hereunder shall 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) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144,
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 earlier of (i) the earlier of (A) three (3) Trading Days after
the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price
to the Company and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company
of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise,
the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to
which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the
aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) three Trading Days
and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If
the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share
Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per
Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each
Trading Day commencing one 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.


 






    	 	112	 



     


    

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


 


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


 


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


 






    	 	113	 



     


    

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


 


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


 


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


 






    	 	114	 



     


    

e)       Holder’s
Exercise Limitations. Notwithstanding anything to the contrary contained herein, except in the case of the Designated Holder,
the Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth
on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as
a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining,
nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii)
exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation,
any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein
beneficially owned by the Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence,
for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act
and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing
to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible
for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e)
applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together
with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion
of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this
Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder
may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual
report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent
written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.  Upon
the written or oral request of a Holder, the Company shall within two Trading Days 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% 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; it being understood
and agreed that neither the Beneficial Ownership Limitation nor this Section 2(e) shall apply to the Designated Holder. 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; except for a successor holder of this Warrant initially issued to the Designated Holder.


 






    	 	115	 



     


    

Section 3.Certain Adjustments.


 


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


 






    	 	116	 



     


    

b)    
Subsequent Equity Sales. If the Company or any Subsidiary thereof, as applicable, during the period ending three
(3) years from the Issue Date, and while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant
any right to reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition)
any Common Stock or Common Stock Equivalents, at an effective price per share less than the Exercise Price then in effect (such
lower price, the “Base Share Price” and such issuance, a “Dilutive Issuance”) (it being understood
and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation
of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants,
options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at
an effective price per share that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than
the Exercise Price on such date of the Dilutive Issuance at such effective price) then the Exercise Price shall be reduced and
only reduced to the Base Share Price. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are
issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(b) in respect of an Exempt
Issuance. The Company shall notify the Holder, in writing, no later than the Trading Day following the issuance or deemed issuance
of any Common Stock or Common Stock Equivalents subject to this Section 3(b), indicating therein the applicable issuance price,
or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance
Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this
Section 3(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Warrant Shares based
upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.


 


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


 






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d)    
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of
return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction,
but excluding any dividend that results in adjustment to the Conversion Price pursuant to Section 3(a) above) (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, except in the case of the Designated Holder, 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).


 


e)    
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly,
in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the
outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more
related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other
Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held
by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to,
such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then,
the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction (as if the exercise of the Warrant occurred immediately prior to the occurrence
of such Fundamental Transaction), at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise
of this Warrant), the number of shares of common stock of the successor or acquiring corporation or shares of Common Stock of the
Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant
is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise
of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to
apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in
a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder
shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental
Transaction.


 






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f)     
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.


 


g)    
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 within two (2) Trading Days deliver to the Holder by facsimile or email a notice setting forth the Exercise Price
after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts
requiring such adjustment.


 


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


 






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Section 4.Transfer of Warrant.


 


a)    
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section
4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without
limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto
duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of
such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants
in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this
Warrant to the Company within three (3) Trading Days of the date the Holder delivers an assignment form to the Company assigning
this Warrant full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase
of Warrant Shares without having a new Warrant issued.


 






    	 	120	 



     


    

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


 


c)    
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that
purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company 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.


 


d)    
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer,
that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.


 


e)    
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring
this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and
not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act
or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.


 


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.


 






    	 	121	 



     


    

b)    
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in
the case of the Warrant, shall not include the posting of any 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.


 


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


 


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


 






    	 	122	 



     


    

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)    
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant
shall be determined in accordance with the provisions of the Purchase Agreement.


 


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, notwithstanding
the fact that all rights hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with
any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts
as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including
those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.


 


h)    
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the
Company shall be delivered in accordance with the notice provisions of the Purchase Agreement.


 


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.


 






    	 	123	 



     


    

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 and the Holder.


 


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.


 


 


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


 


 


(Signature Page Follows)


 


 


 






    	 	124	 



     


    

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.


 


 


 


	
        AMYRIS, INC.

         

         

	
        By:__________________________________________

        Name:

        Title:

         



 


 


 


 






    	 	125	 



     


    

NOTICE OF EXERCISE


 


To:AMYRIS, INC.


 


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


 


(2)  Applicable
Exercise Price: $


 


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


 


[ ] in lawful money of the United States; or


 


[ ] [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).


 


(4)  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:


 


_______________________________


 


_______________________________


 


_______________________________


 


(4) Accredited Investor. The undersigned
is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.


 


[SIGNATURE OF HOLDER]


 


Name of Investing Entity: ________________________________________________________________________


Signature of Authorized Signatory of Investing Entity: _________________________________________________


Name of Authorized Signatory: ___________________________________________________________________


 






    	 	126	 



     


    

Title of Authorized Signatory: ____________________________________________________________________


Date: ________________________________________________________________________________________


 


 


 


 


 


 






    	 	127	 



     


    




EXHIBIT B


 


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:_____________________	 


 


 


 


 






    	 	128	 



     


    

EXHIBIT C-2


 


NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY
IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES


 


COMMON STOCK PURCHASE WARRANT


 


AMYRIS, INC. 





 





	Warrant Shares: _______	Issue Date: May __, 2017



 


 


THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms
and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date that Stockholder
Approval (as defined in the Purchase Agreement) is obtained and deemed effective (the “Initial Exercise Date”)
and on or prior to the close of business on the five (5) year anniversary of the Initial Exercise Date (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Amyris, Inc., a Delaware corporation (the “Company”),
up to that number of shares of the Company’s Common Stock equal to the Warrant Share Amount (as defined below) (as subject
to adjustment hereunder, the “Warrant Shares”). 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).


 


Section 1.Definitions.


 


e)              
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase
Agreement (the “Purchase Agreement”), dated May __, 2017, among the Company and the purchasers signatory thereto,
including the “Designated Holder” (as defined therein, the “Designated Holder”) as such definitions
are in effect on May __, 2017.


 


f)               
“Effective Price” means $0.42 per share (as adjusted for any stock splits, stock dividends, recapitalizations
or the like).


 






    	 	129	 



     


    

g)              
“Dilutive Issuance” means, other than an Exempt Issuance, during the period ending three (3) years from
the Issue Date, and while this Warrant is outstanding, an issuance by the Company or any Subsidiary thereof whereby the Company
or any Subsidiary thereof, as applicable, shall sell or grant any option to purchase, or sell or grant any right to reprice, or
otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock
or Common Stock Equivalents, at an effective price per share less than the Effective Price then in effect (such lower price, the
“Base Share Price”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents
so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise
or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance,
be entitled to receive shares of Common Stock at an effective price per share that is less than the Effective Price, such issuance
shall be deemed to have occurred for less than the Effective Price on such date of the Dilutive Issuance at such effective price).


 


h)              
“Warrant Share Amount” means a number of shares of Common Stock determined subsequent to any Dilutive
Issuance equal to the difference between (i) the quotient obtained by dividing the Holder’s applicable Subscription Amount
by the Base Share Price in the lowest-priced such Dilutive Issuance, rounded down to the nearest share, minus (ii) the quotient
obtained by dividing the Holder’s applicable Subscription Amount by the Effective Price, rounded down to the nearest whole
share, minus (iii) the number of shares that have been issued upon exercise of this Warrant following any prior Dilutive Issuance.
For the avoidance of doubt, on the Issue Date of this Warrant, the Warrant Share Amount shall equal zero; and if one Dilutive Issuance
is followed by a subsequent Dilutive Issuance at higher Base Share Price than the prior Dilutive Issuance, the lower Base Share
Price shall apply.


 


Section 2.Exercise.


 


a)                                       
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part,
at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of
a duly executed facsimile copy or PDF copy submitted by electronic (or e-mail attachment) of the Notice of Exercise in the form
annexed hereto (“Notice of Exercise”). Within the earlier of (i) three (3) 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 form 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 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 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.


 






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b)                                       
Exercise Price. The exercise price per share of the Common Stock under this Warrant shall be $0.0001 subject
to adjustment hereunder (the “Exercise Price”).


 


c)                                       
Cashless Exercise. This Warrant may be exercised, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date at the election of the Holder (in such Holder’s sole discretion) by means
of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient
obtained by dividing ((A-B) * (X)) by (A), where:


 


(A) = as applicable: (i) the VWAP on
the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed
and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to
Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(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 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 1(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.


 






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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 characteristics of the Warrants being exercised, and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant.  The Company agrees not to
take any position contrary to this Section 2(c).


 


“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 in the “Pink
Sheets” published by OTC Markets Group, Inc. (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 Purchasers of a majority in
interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid
by 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 in the “Pink Sheets” published by OTC Markets Group, Inc. (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 Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.


 


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.


 






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i.Delivery of Warrant Shares Upon
Exercise. Warrant Shares purchased hereunder shall 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) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144,
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 earlier of (i) the earlier of (A) three (3) Trading Days after
the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price
to the Company and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company
of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise,
the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to
which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the
aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) three Trading Days
and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If
the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share
Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per
Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each
Trading Day commencing one Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder
rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this
Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common
Stock as in effect on the date of delivery of the Notice of Exercise.


 


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


 






    	 	133	 



     


    

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.


 






    	 	134	 



     


    

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


 


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


 


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


 






    	 	135	 



     


    

e)       Holder’s
Exercise Limitations. Notwithstanding anything to the contrary contained herein, except in the case of the Designated Holder,
the Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth
on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as
a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining,
nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii)
exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation,
any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein
beneficially owned by the Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence,
for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act
and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing
to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible
for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e)
applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together
with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion
of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this
Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder
may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual
report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent
written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.  Upon
the written or oral request of a Holder, the Company shall within two Trading Days 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% 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; it being understood
and agreed that neither the Beneficial Ownership Limitation nor this Section 2(e) shall apply to the Designated Holder. 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; except for a successor holder of this Warrant initially issued to the Designated Holder.


 






    	 	136	 



     


    

Section 3.Certain Adjustments.


 


h)    
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.


 


i)     
[RESERVED]


 


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


 






    	 	137	 



     


    

k)    
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of
return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction,
but excluding any dividend that results in adjustment to the Conversion Price pursuant to Section 3(a) above) (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, except in the case of the Designated Holder, 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).


 


l)     
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly,
in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the
outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more
related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other
Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held
by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to,
such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then,
the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction (as if the exercise of the Warrant occurred immediately prior to the occurrence
of such Fundamental Transaction), at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise
of this Warrant), the number of shares of common stock of the successor or acquiring corporation or shares of Common Stock of the
Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant
is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise
of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to
apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in
a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder
shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental
Transaction.


 






    	 	138	 



     


    

m)  
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.


 


n)    
Notice to Holder.


 


i.    
Notice of Dilutive Issuance. The Company shall notify the Holder, in writing, no later than the Trading Day following
the issuance or deemed issuance of any Common Stock or Common Stock Equivalents pursuant to a Dilutive Issuance, indicating therein
the applicable Base Share Price and the resulting Warrant Share Amount.


 


ii.    
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3,
the Company shall within two (2) Trading Days deliver to the Holder by facsimile or email a notice setting forth the Exercise Price
after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts
requiring such adjustment.


 






    	 	139	 



     


    

iii.    
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.


 






    	 	140	 



     


    

f)     
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section
4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without
limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto
duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of
such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants
in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this
Warrant to the Company within three (3) Trading Days of the date the Holder delivers an assignment form to the Company assigning
this Warrant full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase
of Warrant Shares without having a new Warrant issued.


 


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


 


h)    
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that
purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company 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.


 


i)     
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer,
that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.


 






    	 	141	 



     


    

j)     
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring
this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and
not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act
or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.


 


Section 5.Miscellaneous.


 


o)    
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.


 


p)    
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in
the case of the Warrant, shall not include the posting of any 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.


 


q)    
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.


 


r)     
Authorized Shares.


 


During the period the Warrant is outstanding
from and after the Initial Exercise Date, the Company covenants that 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).


 






    	 	142	 



     


    

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


 


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


 


s)    
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant
shall be determined in accordance with the provisions of the Purchase Agreement.


 


t)     
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.


 


u)    
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, notwithstanding
the fact that all rights hereunder terminate on the Termination Date. 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.


 


v)    
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the
Company shall be delivered in accordance with the notice provisions of the Purchase Agreement.


 






    	 	143	 



     


    

w)  
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.


 


x)    
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.


 


y)    
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.


 


z)    
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the
Company and the Holder.


 


aa) 
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.


 


bb) 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.


 


 


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


 


 


(Signature Page Follows)


 


 


 






    	 	144	 



     


    

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.


 


 


 


	
        AMYRIS, INC.

         

         

	
        By:__________________________________________

        Name:

        Title:

         



 


 


 






    	 	145	 



     


    

NOTICE OF EXERCISE


 


To:AMYRIS, INC.


 


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


 


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


 


[ ] in lawful money of the United States; or


 


[ ] [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).


 


(7)  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:


 


_______________________________


 


_______________________________


 


_______________________________


 


(4) Accredited Investor. The undersigned
is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.


 


[SIGNATURE OF HOLDER]


 


Name of Investing Entity: ________________________________________________________________________


Signature of Authorized Signatory of Investing Entity: _________________________________________________


Name of Authorized Signatory: ___________________________________________________________________


Title of Authorized Signatory: ____________________________________________________________________


Date: ________________________________________________________________________________________














 






    	 	146	 



     


    

EXHIBIT B


 


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:__________________	 


 


 


 


 






    	 	147	 



     


    

EXHIBIT D


 


	 	 	 	 	 
	Number P[A][B][C]-[X]	 	 	 	*[XX]* Shares


 


AMYRIS, INC.


a Delaware Corporation


 


THIS IS TO CERTIFY THAT [Share
Owner Name] is the owner of [Shares Written Out (XX)] shares of Series [A][B][C] Preferred Stock of Amyris,
Inc. (the “Corporation”) transferable only on the books of the Corporation by the holder hereof, in person
or by duly authorized attorney, upon surrender of this Certificate properly endorsed.


 


This Certificate and the shares represented
hereby are issued and shall have the rights specified in and be held subject to all the provisions of the Certificate of Incorporation
and the Bylaws of the Corporation and any amendments thereto, to all of which the holder of this Certificate, by acceptance hereof,
assents.


 


The shares of Series [A][B][C] Preferred
Stock represented by this Certificate are convertible into shares of Common Stock at the times and on the terms set forth in the
Certificate of Incorporation of the Corporation.


 


The Corporation is authorized to issue
more than one series of preferred stock. A statement of the designation, powers, preferences and relative, participating, optional
or other rights, if any, of the shares of each such series and any qualifications, limitations or restrictions thereof may be obtained
by any stockholder upon request and without charge, at the principal office of the Corporation.


 


IN WITNESS WHEREOF, the Corporation
has caused this Certificate to be signed by its duly authorized officers this      day of                     ,
2017.


 


	 	 	 	 	 
	 	 	 	 	 
	[Name]	 	 	 	John Melo
	[Assistant] Secretary	 	 	 	President


 


 


 






    	 	148	 



     


    

FOR VALUE RECEIVED                                          
                                    HEREBY
SELLS, ASSIGNS AND TRANSFERS UNTO                                          
                                         
       SHARES REPRESENTED BY THE WITHIN CERTIFICATE AND DOES HEREBY IRREVOCABLY CONSTITUTE
AND APPOINT                                          
                                ATTORNEY
TO TRANSFER THE SAID SHARES ON THE SHARE REGISTER OF THE WITHIN NAMED CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE PREMISES.


 


DATED             ,             


 


	 
	 	 
		(signature)


 


NOTICE: THE SIGNATURE ON THIS ASSIGNMENT MUST STRICTLY CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THIS CERTIFICATE, IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE
WHATEVER.


 


[NEITHER THIS SECURITY NOR THE SECURITIES
INTO WHICH THIS SECURITY IS EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION
THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.]1


 


THE SHARES EVIDENCED HEREBY ARE SUBJECT
TO THE TERMS AND CONDITIONS OF A SECURITIES PURCHASE AGREEMENT (A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY UPON WRITTEN REQUEST),
AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND
BY ALL THE PROVISIONS AND RESTRICTIONS OF SAID SECURITIES PURCHASE AGREEMENT.


 








________________________


 


1 Not applicable
to shares of Series A Preferred Stock.


 


 


149