Exhibit 4.1


 


[FORM OF SENIOR SECURED NOTE]


 


NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES MAY BE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT, OR
(II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE
OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii) AND 17(a) HEREOF. THE PRINCIPAL AMOUNT
REPRESENTED BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH
ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iii) OF THIS NOTE.


 


Ener-Core,
Inc.


 


SENIOR
SECURED NOTE


 


	Issuance
    Date:  April 23, 2015	Original
    Principal Amount: U.S. $[          ]


 


FOR VALUE RECEIVED,
Ener-Core, Inc., a Nevada corporation (the "Company"), hereby promises to pay to [BUYER] or registered assigns
(the "Holder") in cash and/or in shares of Common Stock (as defined below) the amount set out above as the Original
Principal Amount (as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the "Principal")
when due, whether upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance
with the terms hereof) and to pay interest ("Interest") on any outstanding Principal at the applicable Interest
Rate from the date set out above as the Issuance Date (the "Issuance Date") until the same becomes due and payable,
whether upon an Interest Date (as defined below), the Maturity Date, acceleration, conversion, redemption or otherwise (in each
case in accordance with the terms hereof). This Senior Secured Note (including all Senior Secured Notes issued in exchange, transfer
or replacement hereof, this "Note") is one of a series of Senior Secured Notes issued pursuant to the Securities
Purchase Agreement on the Closing Date and that may be issued as Additional Notes (as defined in the Securities Purchase Agreement)
(collectively, the "Notes" and such other Senior Secured Notes and Additional Notes (to the extent issued), the
"Other Notes"). Certain capitalized terms used herein are defined in Section 29.


 






    	 



    	 



    

 


(1)PAYMENTS OF PRINCIPAL;
PREPAYMENT. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal,
accrued and unpaid Interest and accrued and unpaid Late Charges (as defined in Section 23(b)) on such Principal and Interest.
The "Maturity Date" shall be April 23, 2017, as may be extended at the option of the Holder (i) in the
event that, and for so long as, an Event of Default (as defined in Section 4(a)) shall have occurred and be continuing on the
Maturity Date (as may be extended pursuant to this Section 1) or any event shall have occurred and be continuing on the Maturity
Date (as may be extended pursuant to this Section 1) that with the passage of time and the failure to cure would result in an
Event of Default and (ii) through the date that is ten (10) Business Days after the consummation of a Change of Control
in the event that a Change of Control is publicly announced or a Change of Control Notice (as defined in Section 5(b)) is delivered
prior to the Maturity Date. Other than as specifically permitted by this Note, the Company may not prepay any portion of the outstanding
Principal, accrued and unpaid Interest or accrued and unpaid Late Charges on Principal and Interest, if any.


 


(2)INTEREST.
Interest on this Note shall commence accruing on the Issuance Date at the Interest Rate and shall be computed on the basis of
a 360-day year and twelve 30-day months and shall be payable in arrears for each calendar month on the first (1st)
Business Day of each calendar month after the Issuance Date (each, an "Interest Date") with the first
(1st) Interest Date being May 1, 2015. Interest shall be payable on each Interest Date, to the record holder of this
Note on the applicable Interest Date in cash by wire transfer of immediately available funds pursuant to wire instruction provided
by the Holder in writing to the Company. Prior to the payment of Interest on an Interest Date, Interest on this Note shall accrue
at the Interest Rate and be payable by way of inclusion of the Interest in the Conversion Amount (as defined in Section 3(b)(i))
on each Conversion Date (as defined in Section 3(c)(i)) in accordance with Section 3(c)(i) and on each Redemption Date. From and
after the occurrence and during the continuance of an Event of Default, the Interest Rate shall be increased to eighteen percent
(18.0%) per annum. In the event that such Event of Default is subsequently cured, the adjustment referred to in the preceding
sentence shall cease to be effective as of the date of such cure; provided, that the Interest as calculated and unpaid
at such increased rate during the continuance of such Event of Default shall continue to apply to the extent relating to the days
after the occurrence of such Event of Default through and including the date of cure of such Event of Default; provided,
further, that for the purpose of this Section 2, such Event of Default shall not be deemed cured unless and until any accrued
and unpaid Interest shall be paid to the Holder, including, without limitation, Interest accrued at the increased rate of eighteen
percent (18.0%) per annum.


 


(3)CONVERSION OF
NOTES. During any Conversion Period (as defined below), this Note shall be convertible at the Holder's option, into shares
of the Company's common stock, par value $0.0001 per share (including any capital stock into which such common stock shall have
been changed or any capital stock resulting from a reclassification of such common stock, the "Common Stock"),
on the terms and conditions set forth in this Section 3. A "QPO Conversion Period" means the period from the
consummation of a Qualified Public Offering and continuing for thirty (30) days following the consummation of such Qualified Public
Offering. An "Event of Default Conversion Period" means any time from and after the initial occurrence of an
Event of Default. A "Conversion Period" means a Qualified Public Offering
Conversion Period and/or an Event of Default Conversion Period. This Note is solely convertible during a Conversion Period.


 






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(a)Conversion Right.
Subject to the provisions of Section 3(d), at any time or times during a Conversion Period, the Holder shall be entitled to convert
any portion of the outstanding and unpaid Conversion Amount into fully paid and nonassessable shares of Common Stock and, if during
a QPO Conversion Period, QPO Derivative Securities, as applicable, in accordance with Section 3(c), at the Conversion Rate (as
defined below). The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would
result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock
up to the nearest whole share. The Company shall pay any and all transfer, stamp and similar taxes that may be payable with respect
to the issuance and delivery of Common Stock upon conversion of any Conversion Amount.


 


(b)Conversion Rate.
The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall be determined
by dividing (x) such Conversion Amount by (y) the Conversion Price (the "Conversion Rate"). Notwithstanding anything
to the contrary contained herein, if the Company issues any QPO Derivative Securities in connection with a Qualified Public Offering,
upon any conversion during a QPO Conversion Period, the Holder shall automatically and without any additional consideration to
the Company receive the same number of QPO Derivative Securities per share of Common Stock receivable upon such conversion as
was received by investors in the applicable Qualified Public Offering.


 


(i)"Conversion
Amount" means the sum of (A) the portion of the Principal to be converted, redeemed or otherwise with respect to which
this determination is being made, (B) accrued and unpaid Interest with respect to such Principal and (C) accrued and unpaid Late
Charges, if any, with respect to such Principal and Interest.


 


(ii)"Conversion
Price" means, (A) as of any Conversion Date or other applicable date of determination occurring during an Event of Default
Conversion Period, a price per share equal to 85% of the arithmetic average of the five (5) lowest Weighted Average Prices of
the Common Stock during the fifteen (15) consecutive Trading Day period ending on the Trading Day immediately preceding the applicable
Conversion Date or other applicable date of determination, (B) as of any Conversion Date or other applicable date of determination
occurring during a QPO Conversion Period, a price per share equal to the offering price to the public of the Common Stock offered
for sale by the Company in such Qualified Public Offering and (C) as to any Conversion Date or other applicable date of determination
occurring during a Conversion Period that is both an Event of Default Conversion Period and a QPO Conversion Period, the lower
of (x) the price set forth in clause (A) and (y) the price set forth in clause (B), in each case, subject to adjustment as provided
herein.


 






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(c)Mechanics of
Conversion.


 


(i)Optional
Conversion. To convert any Conversion Amount into shares of Common Stock on any date during a Conversion Period (a "Conversion
Date"), the Holder shall (A) transmit by facsimile or electronic mail (or otherwise deliver), for receipt on or prior
to 11:59 p.m., New York time, on such date, a copy of an executed notice of conversion in the form attached hereto as Exhibit
I (the "Conversion Notice") to the Company and (B) if required by Section 3(c)(iii), surrender this Note
to a common carrier for delivery to the Company as soon as practicable on or following such date (or an indemnification undertaking
with respect to this Note in the case of its loss, theft or destruction). On or before the first (1st) Business Day following
the date of receipt of a Conversion Notice, the Company shall transmit by facsimile or electronic mail a confirmation of receipt
of such Conversion Notice to the Holder and the Company's transfer agent (the "Transfer Agent"). On or before
the third (3rd) Trading Day following the date of receipt of a Conversion Notice (the "Share Delivery Date"),
the Company shall (x) provided that the Transfer Agent is participating in the Depository Trust Company ("DTC")
Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which the Holder shall be
entitled to the Holder's or its designee's balance account with DTC through its Deposit Withdrawal At Custodian system or (y)
if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the address
as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for the number of
shares of Common Stock to which the Holder shall be entitled. If this Note is physically surrendered for conversion as required
by Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount
being converted, then the Company shall as soon as practicable and in no event later than three (3) Business Days after receipt
of this Note and at its own expense, issue and deliver to the Holder a new Note (in accordance with Section 17(d)) representing
the outstanding Principal not converted. The Person or Persons entitled to receive the shares of Common Stock issuable upon a
conversion of this Note shall be treated for all purposes as the record holder or holders of such shares of Common Stock on the
Conversion Date, irrespective of the date such Conversion Shares are credited to the Holder's account with DTC or the date of
delivery of the certificates evidencing such Conversion Shares, as the case may be.


 






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(ii)Company's
Failure to Timely Convert. If the Company shall fail on or prior to the Share Delivery Date to issue and deliver a certificate
to the Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or credit the
Holder's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program,
for the number of shares of Common Stock to which the Holder is entitled upon the Holder's conversion of any Conversion Amount
(a "Conversion Failure"), then (A) the Company shall pay damages to the Holder for each Trading Day of such Conversion
Failure in an amount equal to 1.5% of the product of (1) the sum of the number of shares of Common Stock not issued to the Holder
on or prior to the Share Delivery Date and to which the Holder is entitled, and (2) any trading price of the Common Stock selected
by the Holder in writing as in effect at any time during the period beginning on the applicable Conversion Date and ending on
the applicable Share Delivery Date and (B) the Holder, upon written notice to the Company, may void its Conversion Notice with
respect to, and retain or have returned, as the case may be, any portion of this Note that has not been converted pursuant to
such Conversion Notice; provided that the voiding of a Conversion Notice shall not affect the Company's obligations to
make any payments which have accrued prior to the date of such notice pursuant to this Section 3(c)(ii) or otherwise. In addition
to the foregoing, if the Company shall fail on or prior to the Share Delivery Date to issue and deliver a certificate to the Holder,
if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or credit the Holder's balance
account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, for the number
of shares of Common Stock to which the Holder is entitled upon the Holder's conversion of any Conversion Amount or on any date
of the Company's obligation to deliver shares of Common Stock as contemplated pursuant to clause (y) below, and if on or after
such Trading Day the Holder purchases (in an open market transaction or otherwise) Common Stock to deliver in satisfaction of
a sale by the Holder of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a "Buy-In"),
then the Company shall, within three (3) Trading Days after the Holder's request and in the Holder's discretion, either (x) pay
cash to the Holder in an amount equal to the Holder's total purchase price (including brokerage commissions and other out-of-pocket
expenses, if any) for the shares of Common Stock so purchased (the "Buy-In Price"), at which point the Company's
obligation to issue and deliver such certificate or credit the Holder's balance account with DTC for the shares of Common Stock
to which the Holder is entitled upon the Holder's conversion of the applicable Conversion Amount shall terminate, or (y) promptly
honor its obligation to deliver to the Holder a certificate or certificates representing such shares of Common Stock or credit
the Holder's balance account with DTC for such shares of Common Stock and pay cash to the Holder in an amount equal to the excess
(if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) any trading price of the
Common Stock selected by the Holder in writing as in effect at any time during the period beginning on the applicable Conversion
Date and ending on the date the Company makes all payments provided for in this sentence.


 






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(iii)Registration;
Book-Entry. The Company shall maintain a register (the "Register") for the recordation of the names and addresses
of the holders of each Note and the Principal amount of the Notes (and stated interest thereon) held by such holders (the "Registered
Notes"). The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company
and the holders of the Notes shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes,
including, without limitation, the right to receive payments of Principal and Interest, if any, hereunder, notwithstanding notice
to the contrary. A Registered Note may be assigned or sold in whole or in part only by registration of such assignment or sale
on the Register. Upon its receipt of a request to assign or sell all or part of any Registered Note by a Holder, the Company shall
record the information contained therein in the Register and issue one or more new Registered Notes in the same aggregate Principal
amount as the Principal amount of the surrendered Registered Note to the designated assignee or transferee pursuant to Section
17. Notwithstanding anything to the contrary in this Section 3(c)(iii), a Holder may assign any Note or any portion thereof to
an Affiliate of such Holder or a Related Fund of such Holder without delivering a request to assign or sell such Note to the Company
and the recordation of such assignment or sale in the Register (a "Related Party Assignment"); provided,
that (x) the Company may continue to deal solely with such assigning or selling Holder unless and until such Holder has delivered
a request to assign or sell such Note or portion thereof to the Company for recordation in the Register; (y) the failure of such
assigning or selling Holder to deliver a request to assign or sell such Note or portion thereof to the Company shall not affect
the legality, validity, or binding effect of such assignment or sale and (z) such assigning or selling Holder shall, acting solely
for this purpose as a non-fiduciary agent of the Company, maintain a register (the "Related Party Register")
comparable to the Register on behalf of the Company, and any such assignment or sale shall be effective upon recordation of such
assignment or sale in the Related Party Register. Notwithstanding anything to the contrary set forth herein, upon conversion of
any portion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note
to the Company unless (A) the full Conversion Amount represented by this Note is being converted or (B) the Holder has provided
the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Note
upon physical surrender of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and Late
Charges, if any, converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder
and the Company, so as not to require physical surrender of this Note upon conversion.


 


(iv)Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from this Note and one or more holder
of Other Notes for the same Conversion Date and the Company can convert some, but not all, of such portions of this Note and the
Other Notes submitted for conversion, the Company, subject to Section 3(d), shall convert from the Holder and each holder of Other
Notes electing to have this Note or the Other Notes converted on such date a pro rata amount of such holder's portion of the Note
and its Other Notes submitted for conversion based on the Principal amount of this Note and the Other Notes submitted for conversion
on such date by such holder relative to the aggregate Principal amount of this Note and all Other Notes submitted for conversion
on such date. In the event of a dispute as to the number of shares of Common Stock issuable to the Holder in connection with a
conversion of this Note, the Company shall issue to the Holder the number of shares of Common Stock not in dispute and resolve
such dispute in accordance with Section 22.


 






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(d)Limitations
on Conversions.


 


(i)Beneficial Ownership.
The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right to convert any
portion of this Note, to the extent that after giving effect to such conversion, the Holder together with the other Attribution
Parties collectively would beneficially own in excess of 9.99% (the "Maximum Percentage") of the shares of Common
Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number
of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares
of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion
of this Note with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock
which would be issuable upon (i) conversion of the remaining, nonconverted portion of this Note beneficially owned by the Holder
or any of the other Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including
the Other Notes and Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion
or exercise analogous to the limitation contained in this Section 3(d)(i). For purposes of this Section 3(d)(i), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding
shares of Common Stock the Holder may acquire upon the conversion of the Note without exceeding the Maximum Percentage, the Holder
may rely on the number of outstanding shares of Common Stock as reflected in (i) the Company's most recent Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (ii)
a more recent public announcement by the Company or (iii) any other written notice by the Company or the Transfer Agent setting
forth the number of shares of Common Stock outstanding (the "Reported Outstanding Share Number"). If the Company
receives a Conversion Notice from a Holder at a time when the actual number of outstanding shares of Common Stock is less than
the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock
then outstanding and, to the extent that such Conversion Notice would otherwise cause the Holder's beneficial ownership, as determined
pursuant to this Section 3(d)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of
shares of Common Stock to be issued pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request
of the Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including this Note, by the Holder and any other Attribution
Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares
of Common Stock to the Holder upon conversion of this Note results in the Holder and the other Attribution Parties being deemed
to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as
determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder's and the other Attribution
Parties' aggregate beneficial ownership exceeds the Maximum Percentage (the "Excess Shares") shall be deemed
null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares.
Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective
until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be
effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase
or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Notes that is not an
Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Note
in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes
of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 3(d)(i) to the extent necessary to correct this
paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation
contained in this Section 3(d)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Note.


 






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(ii)Conversion Volume
Limitation. Notwithstanding anything herein to the contrary, the Holder may not, during a QPO Conversion Period, convert in
excess of fifty percent (50%) of the sum of (i) the Conversion Amount as of the Issuance Date and (ii) accrued and unpaid Interest
on the Conversion Amount that is outstanding at the time of the consummation of the applicable Qualified Public Offering.


 


(4)RIGHTS UPON EVENT
OF DEFAULT.


 


(a)Event of Default.
Each of the following events shall constitute an "Event of Default":


 


(i)the suspension
of the Common Stock from trading for a period of five (5) or more consecutive Trading Days or for more than an aggregate of ten
(10) Trading Days in any 365 day period or the failure of the Common Stock to be listed on an Eligible Market;


 


(ii)the
Company's (A) failure to cure a Conversion Failure by delivery of the required number of shares of Common Stock within five (5)
Business Days after the applicable Conversion Date or (B) notice, written or oral, to the Holder or any holder of the Other Notes,
including by way of public announcement or through any of its agents, at any time, of its intention not to comply with a request
for conversion of this Note or any Other Notes into shares of Common Stock that is tendered in accordance with the provisions
of this Note or the Other Notes, other than pursuant to Section 3(d) (and analogous provisions under the Other Notes);


 


(iii)from
and after the ninetieth (90th) day following the Issuance Date (the “Reverse Split Deadline”), at
any time following the fifth (5th) consecutive Business Day that the Holder's Authorized Share Allocation is less than
the sum of (A) 200% of the number of shares of Common Stock that the Holder would be entitled to receive upon a conversion of
the full Conversion Amount of this Note (without regard to any limitations on conversion set forth in Section 3(d) or otherwise)
calculated using an assumed Conversion Price of $0.2275 (as adjusted for any stock dividend, stock split, stock combination, reclassification
or similar transaction occurring after the Subscription Date) (the "Assumed Conversion Price") and (B) the number
of shares of Common Stock that the Holder would be entitled to receive upon exercise in full of the Holder's Warrants (without
regard to any limitations on exercise set forth in the Warrants);


 






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(iv)the
Company's failure to pay to the Holder any amount of Principal, Interest, Late Charges or other amounts when and as due under
this Note (including, without limitation, the Company's failure to pay any redemption, Late Charges or other amounts) or any other
Transaction Document (as defined in the Securities Purchase Agreement) or any other agreement, document, certificate or other
instrument delivered in connection with the transactions contemplated hereby and thereby to which the Holder is a party if such
failure continues for a period of at least an aggregate of five (5) Business Days;


 


(v)any default
under, redemption of or acceleration prior to maturity of an aggregate principal amount of $100,000 or more of Indebtedness of
the Company and/or any of its Subsidiaries (as defined in Section 3(a) of the Securities Purchase Agreement) other than with respect
to this Note or any Other Notes;


 


(vi)the
Company or any of its Subsidiaries, pursuant to or within the meaning of Title 11, U.S. Code, or any similar Federal, foreign
or state law for the relief of debtors (collectively, "Bankruptcy Law"), (A) commences a voluntary case, (B)
consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a receiver,
trustee, assignee, liquidator or similar official (a "Custodian"), (D) makes a general assignment for the benefit
of its creditors or (E) admits in writing that it is generally unable to pay its debts as they become due;


 


(vii)a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company or any
of its Subsidiaries in an involuntary case, (B) appoints a Custodian of the Company or any of its Subsidiaries or (C) orders the
liquidation of the Company or any of its Subsidiaries;


 


(viii)a
final judgment or judgments for the payment of money aggregating in excess of $100,000 are rendered against the Company or any
of its Subsidiaries and which judgments are not, within sixty (60) days after the entry thereof, bonded, discharged or stayed
pending appeal, or are not discharged within sixty (60) days after the expiration of such stay; provided, however,
that any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating
the $100,000 amount set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity
provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered
by insurance or an indemnity and the Company will receive the proceeds of such insurance or indemnity within thirty (30) days
of the issuance of such judgment;


 


(ix)other
than as specifically set forth in another clause of this Section 4(a), the Company or any of its Subsidiaries breaches in any
material respect any representation, warranty, covenant or other term or condition of any Transaction Document, except, in the
case of a breach of a covenant or other term or condition of any Transaction Document which is curable, only if such breach continues
for a period of at least an aggregate of five (5) Business Days;


 






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(x)any breach
or failure in any material respect to comply with Section 14 of this Note, except, in the case of a breach of a covenant or other
term or condition of such section which is curable, only if such breach or failure continues for a period of at least an aggregate
of five (5) Business Days;


 


(xi)any
breach or failure in any respect to comply with Section 4(f), Section 4(s) and/or Section 4(t) of the Securities Purchase Agreement;


 


(xii)the
Company or any Subsidiary shall fail in any material respect to perform or comply with any covenant or agreement contained in
the Security Agreement (as defined in the Securities Purchase Agreement) to which it is a party;


 


(xiii)any
material provision of any Security Document (as defined in the Securities Purchase Agreement) (as determined by the Collateral
Agent (as defined in the Securities Purchase Agreement)) shall at any time for any reason (other than pursuant to the express
terms thereof) cease to be valid and binding on or enforceable against the Company or any Subsidiary intended to be a party thereto,
or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by the Company
or any Subsidiary or any governmental authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability
thereof, or the Company or any Subsidiary shall deny in writing that it has any liability or obligation purported to be created
under any Security Document, except, in the case of any such event which is curable, only if such event continues for a period
of at least an aggregate of ten (10) Business Days.


 


(xiv)any
Security Document or any other security document, after delivery thereof pursuant hereto, shall for any reason fail or cease to
create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien (as defined
in Section 14(c)) in favor of the Collateral Agent for the benefit of the holders of the Notes on any Collateral (as defined in
the Security Documents) purported to be covered thereby, except, in the case of any such event which is curable, only if such
event continues for a period of at least an aggregate of ten (10) Business Days;


 


(xv)any
material damage to, or loss, theft or destruction of, any Collateral or a material amount of property of the Company, whether
or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which
causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities
at any facility of the Company or any Subsidiary, if any such event or circumstance could reasonably be expected to have a Material
Adverse Effect (as defined in the Securities Purchase Agreement);


 


(xvi)a false
or inaccurate certification as to whether any Event of Default has occurred;


 


(xvii)the
Company's failure for any reason after the date that is six (6) months immediately following the Issuance Date to satisfy the
current public information requirement under Rule 144(c), which failure continues for more than an aggregate of ten (10) Trading
Days in any 365-day period; or


 






    	- 10 -



    	 



    

 


(xviii)any
Event of Default (as defined in the Other Notes) occurs with respect to any Other Notes.


 


(b)Redemption Right.
Upon the occurrence of an Event of Default with respect to this Note or any Other Note, the Company shall within two (2) Business
Days deliver written notice thereof via facsimile or electronic mail and overnight courier (an "Event of Default Notice")
to the Holder. At any time after the earlier of the Holder's receipt of an Event of Default Notice and the Holder becoming aware
of an Event of Default, the Holder may require the Company to redeem (an "Event of Default Redemption") all or
any portion of this Note by delivering written notice thereof (the "Event of Default Redemption Notice") to the
Company, which Event of Default Redemption Notice shall indicate the portion of this Note the Holder is electing to require the
Company to redeem. Each portion of this Note subject to redemption by the Company pursuant to this Section 4(b) shall be redeemed
by the Company in cash by wire transfer of immediately available funds at a price equal to 115% of the Conversion Amount being
redeemed (the "Event of Default Redemption Price"). Redemptions required by this Section 4(b) shall be
made in accordance with the provisions of Section 11. To the extent redemptions required by this Section 4(b) are deemed or determined
by a court of competent jurisdiction to be prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary
prepayments. Notwithstanding anything to the contrary in this Section 4, but subject to Section 3(d), until the Event of Default
Redemption Price (together with any interest thereon) is paid in full, during a Conversion Period, the Conversion Amount submitted
for redemption under this Section 4(b) (together with any interest thereon) may be converted, in whole or in part, by the Holder
into Common Stock pursuant to Section 3. The parties hereto agree that in the event of the Company's redemption of any portion
of the Note under this Section 4(b), the Holder's damages would be uncertain and difficult to estimate because of the parties'
inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity
for the Holder. Accordingly, any Event of Default redemption premium due under this Section 4(b) is intended by the parties to
be, and shall be deemed, a reasonable estimate of the Holder's actual loss of its investment opportunity and not as a penalty.


 






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(5)RIGHTS UPON FUNDAMENTAL
TRANSACTION AND CHANGE OF CONTROL.


 


(a)Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes in writing all of
the obligations of the Company under this Note and the other Transaction Documents in accordance with the provisions of this Section
5(a) pursuant to written agreements in form and substance satisfactory to the Required Holders and approved by the Required Holders
prior to such Fundamental Transaction, including agreements, if so requested by the Holder, to deliver to each holder of Notes
in exchange for such Notes a security of the Successor Entity evidenced by a written instrument substantially similar in form
and substance to the Notes, including, without limitation, having a principal amount and interest rate equal to the principal
amounts and the interest rates of the Notes then outstanding held by such holder, having similar conversion rights and having
similar ranking and security to the Notes, and satisfactory to the Required Holders. Any security issuable or potentially issuable
to the Holder pursuant to the terms of this Note on the consummation of a Fundamental Transaction shall be registered and freely
tradable by the Holder without any restriction or limitation or the requirement to be subject to any holding period pursuant to
any applicable securities laws. No later than (i) thirty (30) days prior to the occurrence or consummation of any Fundamental
Transaction or (ii) if later, the first Trading Day following the date the Company first becomes aware of the occurrence or potential
occurrence of a Fundamental Transaction, the Company shall deliver written notice thereof via facsimile or electronic mail and
overnight courier to the Holder. Upon the occurrence or consummation of any Fundamental Transaction, and it shall be a required
condition to the occurrence or consummation of any Fundamental Transaction that, the Company and the Successor Entity or Successor
Entities, jointly and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly
and severally succeed to, and be added to the term "Company" under this Note (so that from and after the date of such
Fundamental Transaction, each and every provision of this Note referring to the "Company" shall refer instead to each
of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Company and the Successor Entity
or Successor Entities, jointly and severally, may exercise every right and power of the Company prior thereto and shall assume
all of the obligations of the Company prior thereto under this Note with the same effect as if the Company and such Successor
Entity or Successor Entities, jointly and severally, had been named as the Company in this Note, and, solely at the request of
the Holder, if the Successor Entity and/or Successor Entities is a publicly traded corporation whose common capital stock is quoted
on or listed for trading on an Eligible Market, shall deliver (in addition to and without limiting any right under this Note)
to the Holder in exchange for this Note a security of the Successor Entity and/or Successor Entities evidenced by a written instrument
substantially similar in form and substance to this Note and convertible for a corresponding number of shares of capital stock
of the Successor Entity and/or Successor Entities (the "Successor Capital Stock") equivalent (as set forth below)
to the shares of Common Stock acquirable and receivable upon conversion of this Note (determined using the Assumed Conversion
Price as the Conversion Price and determined without regard to any limitations on the conversion of this Note) prior to such Fundamental
Transaction (such corresponding number of shares of Successor Capital Stock to be delivered to the Holder shall equal the greater
of (I) the quotient of (A) the aggregate dollar value of all consideration (including cash consideration and any consideration
other than cash ("Non-Cash Consideration"), in such Fundamental Transaction, as such values are set forth in
any definitive agreement for the Fundamental Transaction that has been executed at the time of the first public announcement of
the Fundamental Transaction or, if no such value is determinable from such definitive agreement, as determined in accordance with
Section 22 with the term "Non-Cash Consideration" being substituted for the term "Conversion Price") that
the Holder would have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or
other determination date for the event resulting in such Fundamental Transaction, had this Note been converted immediately prior
to such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental
Transaction (determined using the Assumed Conversion Price as the Conversion Price and determined without regard to any limitations
on the conversion of this Note) (the "Aggregate Consideration") divided by (B) the per share Closing Sale Price
of such corresponding Successor Capital Stock on the Trading Day immediately prior to the consummation or occurrence of the Fundamental
Transaction and (II) the product of (A) the Aggregate Consideration and (B) the highest exchange ratio pursuant to which any shareholder
of the Company may exchange Common Stock for Successor Capital Stock) (provided, however, to the extent that the
Holder's right to receive any such shares of publicly traded common stock (or their equivalent) of the Successor Entity would
result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, if applicable, then the Holder shall
not be entitled to receive such shares to such extent (and shall not be entitled to beneficial ownership of such shares of publicly
traded common stock (or their equivalent) of the Successor Entity as a result of such consideration to such extent) and the portion
of such shares shall be held in abeyance for the Holder until such time or times, as its right thereto would not result in the
Holder and its other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be delivered
such shares to the extent as if there had been no such limitation), and such security shall be satisfactory to the Holder, and
with an identical conversion price to the Conversion Price hereunder (such adjustments to the number of shares of capital stock
and such conversion price being for the purpose of protecting after the consummation or occurrence of such Fundamental Transaction
the economic value of this Note that was in effect immediately prior to the consummation or occurrence of such Fundamental Transaction,
as elected by the Holder solely at its option). Upon occurrence or consummation of the Fundamental Transaction, and it shall be
a required condition to the occurrence or consummation of such Fundamental Transaction that, the Company and the Successor Entity
or Successor Entities shall deliver to the Holder confirmation that there shall be issued upon conversion of this Note at any
time after the occurrence or consummation of the Fundamental Transaction, as elected by the Holder solely at its option, shares
of Common Stock, Successor Capital Stock or, in lieu of the shares of Common Stock or Successor Capital Stock (or other securities,
cash, assets or other property purchasable upon the conversion of this Note prior to such Fundamental Transaction), such shares
of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights),
which for purposes of clarification may continue to be shares of Common Stock, if any, that the Holder would have been entitled
to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination date for the event
resulting in such Fundamental Transaction, had this Note been converted immediately prior to such Fundamental Transaction or the
record, eligibility or other determination date for the event resulting in such Fundamental Transaction (determined using the
Assumed Conversion Price as the Conversion Price and determined without regard to any limitations on the conversion of this Note),
as adjusted in accordance with the provisions of this Note. The provisions of this Section 5(a) shall apply similarly and equally
to successive Fundamental Transactions.


 






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(b)Redemption Right.
No sooner than twenty-five (25) days nor later than twenty (20) days prior to the consummation of a Change of Control, but not
prior to the public announcement of such Change of Control, the Company shall deliver written notice thereof via facsimile or
electronic mail and overnight courier to the Holder (a "Change of Control Notice"). At any time during
the period beginning on the earlier to occur of (x) any oral or written agreement by the Company or any of its Subsidiaries, upon
consummation of which the transaction contemplated thereby would reasonably be expected to result in a Change of Control, (y)
the Holder becoming aware of a Change of Control and (z) the Holder's receipt of a Change of Control Notice and ending twenty-five
(25) Trading Days after the date of the consummation of such Change of Control, the Holder may require the Company to redeem (a
"Change of Control Redemption") all or any portion of this Note by delivering written notice thereof ("Change
of Control Redemption Notice") to the Company, which Change of Control Redemption Notice shall indicate the Conversion
Amount the Holder is electing to require the Company to redeem. The portion of this Note subject to redemption pursuant to this
Section 5(b) shall be redeemed by the Company in cash by wire transfer of immediately available funds at a price equal to 115%
of the Conversion Amount being redeemed (the "Change of Control Redemption Price"). Redemptions required by this
Section 5 shall be made in accordance with the provisions of Section 11 and shall have priority to payments to shareholders in
connection with a Change of Control. To the extent redemptions required by this Section 5(b) are deemed or determined by a court
of competent jurisdiction to be prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments.
Notwithstanding anything to the contrary in this Section 5, but subject to Section 3(d), until the Change of Control Redemption
Price (together with any interest thereon) is paid in full, the Conversion Amount submitted for redemption under this Section
5(b) (together with any interest thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant to Section
3. The parties hereto agree that in the event of the Company's redemption of any portion of the Note under this Section 5(b),
the Holder's damages would be uncertain and difficult to estimate because of the parties' inability to predict future interest
rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any
Change of Control redemption premium due under this Section 5(b) is intended by the parties to be, and shall be deemed, a reasonable
estimate of the Holder's actual loss of its investment opportunity and not as a penalty.


 


(6)RIGHTS UPON ISSUANCE
OF OTHER SECURITIES.


 


(a)Adjustment of
Conversion Price upon Subdivision or Combination of Common Stock. If the Company at any time on or after the Subscription
Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares
of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision will be
proportionately reduced. If the Company at any time on or after the Subscription Date combines (by combination, reverse stock
split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion
Price in effect immediately prior to such combination will be proportionately increased.


 


(b)Voluntary Adjustment
by Company. The Company may at any time during the term of this Note, with the prior written consent of the Required Holders,
reduce the then current Conversion Price to any amount and for any period of time deemed appropriate by the Board of Directors
of the Company.


 


(7)OPTIONAL REDEMPTION
AT THE HOLDER'S ELECTION. At any time from and after October 23, 2016, the Holder shall have the right, in its sole and absolute
discretion, at any time or times, to require that the Company redeem (a "Holder Optional Redemption") all or
any portion of the Conversion Amount of this Note then outstanding by delivering written notice thereof (a "Holder Optional
Redemption Notice" and the date the Holder delivers such notice, the "Holder Optional Redemption Notice Date")
to the Company, which notice shall state (i) the portion of this Note that is being redeemed and (ii) the date on which the Holder
Optional Redemption shall occur, which date shall be not less than three (3) Business Days from the Holder Optional Redemption
Notice Date (the "Holder Optional Redemption Date"). The portion of this Note subject to redemption pursuant
to this Section 7 shall be redeemed by the Company in cash at a price (the "Holder Optional Redemption Price")
equal to 100% of the Conversion Amount of the portion of this Note being redeemed. On the applicable Holder Optional Redemption
Date, the Company shall deliver or shall cause to be delivered to the Holder the applicable Holder Optional Redemption Price in
cash by wire transfer of immediately available funds pursuant to wire instructions provided by the Holder in writing to the Company.
Holder Optional Redemptions made pursuant to this Section 7 shall be made in accordance with Section 11. To the extent redemptions
required by this Section 7 are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the
Company, such redemptions shall be deemed to be voluntary prepayments.


 






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(8)OPTIONAL REDEMPTION
AT THE COMPANY'S ELECTION.


 


(a)General.
At any time after the Issuance Date other than (i) at any time during which an Event of Default has occurred and is continuing
or (ii) from the time the Company publicly announces a Qualified Public Offering through and including the date that is thirty
(30) days immediately following the consummation of such Qualified Public Offering, the Company shall have the right to redeem
all or any portion of the Conversion Amount then remaining under this Note and the Other Notes (the "Company Optional
Redemption Amount") as designated in the Company Optional Redemption Notice on the Company Optional Redemption Date (each
as defined below) (a "Company Optional Redemption"); provided, that the aggregate Conversion Amount under
this Note and the Other Notes being redeemed pursuant to this Section 8 (and analogous provisions under the Other Notes) shall
be at least $500,000, or such lesser amount that is then outstanding under this Note and the Other Notes. The portion of this
Note and the Other Notes subject to redemption pursuant to this Section 8(a) shall be redeemed by the Company on the Company Optional
Redemption Date (as defined below) in cash by wire transfer of immediately available funds pursuant to wire instructions provided
by the Holder in writing to the Company at a price equal to the 100% of the Conversion Amount of this Note to be redeemed (the
"Company Optional Redemption Price"). The Company may exercise its right to require redemption under this Section
8 by delivering prior written notice thereof fifteen (15) days prior to the Company Optional Redemption Date (as defined below)
by facsimile or electronic mail and overnight courier to the Holder and all, but not less than all, of the holders of the Other
Notes (the "Company Optional Redemption Notice" and the date all of the holders of the Notes received such notice
is referred to as the "Company Optional Redemption Notice Date"). The Company Optional Redemption Notice shall
be irrevocable. The Company Optional Redemption Notice shall (i) state the date on which the Company Optional Redemption shall
occur (the "Company Optional Redemption Date"), which date shall be fifteen (15) days following the Company Optional
Redemption Notice Date or, if such date falls on a Holiday, the next day that is not a Holiday and (ii) state the aggregate
Conversion Amount of the Notes which the Company has elected to be subject to Company Optional Redemption from the Holder and
all of the holders of the Other Notes pursuant to this Section 8(a) (and analogous provisions under the Other Notes) on the Company
Optional Redemption Date and (iii) certify that there is no Event of Default that is continuing as of the applicable Company Optional
Redemption Notice Date. If the Company confirmed that there was no such Event of Default continuing as of the applicable Company
Optional Redemption Notice Date but an Event of Default occurs between the applicable Company Optional Redemption Notice Date
and any time through the applicable Company Optional Redemption Date (the "Company Optional Redemption Interim Period"),
the Company shall provide the Holder a subsequent notice to that effect. If there is an Event of Default that is continuing (which
is not waived in writing by the Holder) during such Company Optional Redemption Interim Period, then the Company Optional Redemption
shall be null and void with respect to all or any part designated by the Holder of the unconverted Company Optional Redemption
Amount and the Holder shall be entitled to all the rights of a holder of this Note with respect to such amount of the Company
Optional Redemption Amount. Notwithstanding anything to the contrary in this Section 8, until the Company Optional Redemption
Price is paid in full, during a Conversion Period, the Company Optional Redemption Amount may be converted, in whole or in part,
by the Holder into shares of Common Stock pursuant to Section 3. All Conversion Amounts converted by the Holder after the Company
Optional Redemption Notice Date shall reduce the Company Optional Redemption Amount of this Note required to be redeemed on the
Company Optional Redemption Date, unless the Holder otherwise indicates in the applicable Conversion Notice. Company Optional
Redemptions made pursuant to this Section 8 shall be made in accordance with Section 11. To the extent redemptions required by
this Section 8 are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the Company, such
redemptions shall be deemed to be voluntary prepayments.


 






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(b)Pro Rata Redemption
Requirement. If the Company elects to cause a Company Optional Redemption pursuant to Section 8(a), then it must simultaneously
take the same action in the same proportion with respect to the Other Notes. If the Company elects to cause a Company Optional
Redemption pursuant to Section 8(a) (or similar provisions under the Other Notes) with respect to less than all of the Conversion
Amounts of the Notes then outstanding, then the Company shall require redemption of a Conversion Amount from each of the holders
of the Notes equal to the product of (i) the aggregate Company Optional Redemption Amount of Notes which the Company has elected
to cause to be redeemed pursuant to Section 8(a), multiplied by (ii) the fraction, the numerator of which is the sum of the aggregate
Original Principal Amount of the Notes purchased by such holder of outstanding Notes and the denominator of which is the sum of
the aggregate Original Principal Amount of the Notes purchased by all holders holding outstanding Notes (such fraction with respect
to each holder is referred to as its "Company Optional Redemption Allocation Percentage", and such amount
with respect to each holder is referred to as its "Pro Rata Company Optional Redemption Amount"); provided,
however that in the event that any holder's Pro Rata Company Optional Redemption Amount exceeds the outstanding Principal
amount of such holder's Note, then such excess Pro Rata Company Optional Redemption Amount shall be allocated amongst the remaining
holders of Notes in accordance with the foregoing formula. In the event that the initial holder of any Notes shall sell or otherwise
transfer any of such holder's Notes, the transferee shall be allocated a pro rata portion of such holder's Company Optional Redemption
Allocation Percentage and Pro Rata Company Optional Redemption Amount.


 


(9)NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Articles of Incorporation, Bylaws or through
any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, 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 Note, and will
at all times in good faith carry out all of the provisions of this Note and take all action as may be required to protect the
rights of the Holder of this Note.


 






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(10)RESERVATION OF
AUTHORIZED SHARES.


 


(a)Reservation.
From and after the Reverse Split Deadline, the Company shall initially reserve out of its authorized and unissued shares of Common
Stock a number of shares of Common Stock for each of this Note and the Other Notes equal to 200% of the Conversion Rate determined
using the Assumed Conversion Price as the Conversion Price, with respect to the Conversion Amount of each such Note as of the
Issuance Date. So long as any of this Note and the Other Notes are outstanding, from and after the Reverse Split Deadline,
the Company shall take all action necessary to reserve and keep available out of its authorized and unissued Common Stock, solely
for the purpose of effecting the conversion of this Note and the Other Notes, the number of shares of Common Stock specified above
in this Section 10(a) as shall from time to time be necessary to effect the conversion of all of the Notes then outstanding; provided,
that at no time shall the number of shares of Common Stock so reserved be less than the number of shares required to be reserved
pursuant hereto (in each case, determined using the Assumed Conversion Price as the Conversion Price and determined without regard
to any limitations on conversions) (the "Required Reserve Amount"). The initial number of shares of Common Stock
reserved for conversions of this Note and the Other Notes and each increase in the number of shares so reserved shall be allocated
pro rata among the Holder and the holders of the Other Notes based on the Principal amount of this Note and the Other Notes held
by each holder at the Closing (as defined in the Securities Purchase Agreement) or increase in the number of reserved shares,
as the case may be (the "Authorized Share Allocation"). In the event that a holder shall sell or otherwise transfer
this Note or any of such holder's Other Notes, each transferee shall be allocated a pro rata portion of such holder's Authorized
Share Allocation. Any shares of Common Stock reserved and allocated to any Person which ceases to hold any Notes shall be allocated
to the Holder and the remaining holders of Other Notes, pro rata based on the Principal amount of this Note and the Other Notes
then held by such holders.


 


(b)Insufficient
Authorized Shares. If at any time while any of the Notes remain outstanding the Company does not have a sufficient number
of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Notes
at least a number of shares of Common Stock equal to the Required Reserve Amount (an "Authorized Share Failure"),
then the Company shall immediately take all action necessary to increase the Company's authorized shares of Common Stock to an
amount sufficient to allow the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting
the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure,
but in no event later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall either (x)
obtain the written consent of its shareholders for the approval of an increase in the number of authorized shares of Common Stock
and provide each shareholder with an information statement with respect thereto or (y) hold a meeting of its shareholders for
the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall
provide each shareholder with a proxy statement and shall use its best efforts to solicit its shareholders' approval of such increase
in authorized shares of Common Stock and to cause its Board of Directors to recommend to the shareholders that they approve such
proposal.


 






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(11)REDEMPTIONS.


 


(a)Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder within three (3) Business Days after
the Company's receipt of the Holder's Event of Default Redemption Notice (the "Event of Default Redemption Date").
If the Holder has submitted a Change of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the
applicable Change of Control Redemption Price to the Holder (i) concurrently with the consummation of such Change of Control if
such notice is received prior to the consummation of such Change of Control and (ii) within three (3) Business Days after the
Company's receipt of such notice otherwise (such date, the "Change of Control Redemption Date"). The Company
shall deliver the applicable Holder Optional Redemption Price on the applicable Holder Optional Redemption Date. The Company shall
deliver the applicable Company Optional Redemption Price on the applicable Company Optional Redemption Date. The Company shall
pay the applicable Redemption Price to the Holder in cash by wire transfer of immediately available funds pursuant to wire instruction
provided by the holder in writing to the Company on the applicable due date. In the event of a redemption of less than all of
the Conversion Amount of this Note, the Company shall promptly cause to be issued and delivered to the Holder a new Note (in accordance
with Section 17(d)) representing the outstanding Principal which has not been redeemed and any accrued Interest on such Principal
which shall be calculated as if no Redemption Notice has been delivered. In the event that the Company does not pay the applicable
Redemption Price to the Holder within the time period required, at any time thereafter and until the Company pays such unpaid
Redemption Price in full, the Holder shall have the option, in lieu of redemption, to require the Company to promptly return to
the Holder all or any portion of this Note representing the Conversion Amount that was submitted for redemption and for which
the applicable Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Company's receipt of such
notice, (x) the applicable Redemption Notice shall be null and void with respect to such Conversion Amount and (y) the Company
shall immediately return this Note, or issue a new Note (in accordance with Section 17(d)) to the Holder representing such Conversion
Amount to be redeemed. The Holder's delivery of a notice voiding a Redemption Notice and exercise of its rights following such
notice shall not affect the Company's obligations to make any payments of Late Charges which have accrued prior to the date of
such notice with respect to the Conversion Amount subject to such notice.


 


(b)Redemption by
Other Holders. Upon the Company's receipt of notice from any of the holders of the Other Notes for redemption or repayment
as a result of an event or occurrence substantially similar to the events or occurrences described in Section 4(b), Section 5(b)
or Section 7 or pursuant to equivalent provisions set forth in the Other Notes (each, an "Other Redemption Notice"),
the Company shall immediately, but no later than one (1) Business Day of its receipt thereof, forward to the Holder by facsimile
or electronic mail a copy of such notice. If the Company receives a Redemption Notice and one or more Other Redemption Notices,
during the seven (7) Business Day period beginning on and including the date which is three (3) Business Days prior to the Company's
receipt of the Holder's Redemption Notice and ending on and including the date which is three (3) Business Days after the Company's
receipt of the Holder's Redemption Notice and the Company is unable to redeem all principal, interest and other amounts designated
in such Redemption Notice and such Other Redemption Notices received during such seven (7) Business Day period, then the Company
shall redeem a pro rata amount from the Holder and each holder of the Other Notes (including the Holder) based on the Principal
amount of this Note and the Other Notes submitted for redemption pursuant to such Redemption Notice and such Other Redemption
Notices received by the Company during such seven Business Day period.


 






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(12)VOTING RIGHTS.
The Holder shall have no voting rights as the holder of this Note, except as required by law and as expressly provided in this
Note.


 


(13)SECURITY.
This Note and the Other Notes are secured to the extent and in the manner set forth in the Security Documents.


 


(14)COVENANTS.


 


(a)Rank.All
payments due under this Note (a) shall rank pari passu with all Other Notes and (b) shall be senior to all other Indebtedness
of the Company and its Subsidiaries.


 


(b)Incurrence of
Indebtedness. So long as this Note is outstanding, the Company shall not, and the Company shall not permit any of its Subsidiaries
to, directly or indirectly, incur or guarantee, assume or suffer to exist any Indebtedness, other than Permitted Indebtedness.


 


(c)Existence of
Liens. So long as this Note is outstanding, without the prior written consent of the Collateral Agent (as defined in the Securities
Purchase Agreement), the Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly,
allow or suffer to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or
assets (including accounts and contract rights) owned by the Company or any of its Subsidiaries (collectively, "Liens")
other than Permitted Liens.


 


(d)Restricted Payments.


 


(i)The Company
shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, redeem, defease, repurchase, repay
or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether by way of open market
purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other than this Note and
the Other Notes), whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness
if at the time such payment is due or is otherwise made or, after giving effect to such payment, an event constituting, or that
with the passage of time and without being cured would constitute, an Event of Default has occurred and is continuing.


 


(ii)Except
for payments in the ordinary course of business, the Company shall not, and the Company shall not permit any of its Subsidiaries
to, directly or indirectly, redeem, defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash
equivalents (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise),
all or any portion of any Indebtedness (including, without limitation Permitted Indebtedness other than this Note and the Other
Notes), by way of payment in respect of principal of (or premium, if any) such Indebtedness. For clarity, such restriction shall
not preclude the payment of regularly scheduled interest payments which may accrue under such Permitted Indebtedness.


 






    	- 18 -



    	 



    

 


(e)Restriction
on Redemption and Cash Dividends. Until all of the Notes have been converted, redeemed or otherwise satisfied in accordance
with their terms, the Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly,
redeem or repurchase its Equity Interest, or permit any Subsidiary to redeem or repurchase its Equity Interests (except on a pro
rata basis among all holders thereof) or declare or pay any cash dividend or distribution on any Equity Interest of the Company
or of its Subsidiaries without in each case the prior express written consent of the Required Holders.


 


(f)Change in Nature
of Business. The Company shall not make, or permit any of its Subsidiaries to make, any change in the nature of its business
as described in the Company's most recent Annual Report filed on Form 10-K with the SEC. Without the prior written consent of
the Required Holders, the Company shall not modify its corporate structure or purpose.


 


(g)Intellectual
Property. The Company shall not, and the Company shall not permit any of its Subsidiaries, directly or indirectly, to encumber
or allow any Liens on, any of its copyright rights, copyright applications, copyright registrations and like protections in each
work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections,
including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks,
service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the
goodwill of the business of the Company and its Subsidiaries connected with and symbolized thereby, know-how, operating manuals,
trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement
of any of the foregoing, other than Permitted Liens.


 


(h)Preservation
of Existence, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its
existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified
and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction
of its business makes such qualification necessary.


 


(i)Maintenance
of Properties, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve,
all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear and tear excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of
all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof
or thereunder.


 






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(j)Maintenance
of Insurance. The Company shall maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business
interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in
such amounts and covering such risks as is required by any governmental authority having jurisdiction with respect thereto or
as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated.


 


(k)Transactions
with Affiliates. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into, renew, extend or be a
party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer
or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except in the ordinary
course of business in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation
of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a
comparable arm's length transaction with a Person that is not an Affiliate thereof.


 


(15)VOTE TO ISSUE,
OR CHANGE THE TERMS OF, NOTES. The affirmative vote at a meeting duly called for such purpose or the written consent without
a meeting of the Required Holders shall be required for any change or amendment or waiver of any provision to this Note or any
of the Other Notes; provided that any such amendment or waiver that complies with the foregoing but that disproportionately, materially
and adversely affects the rights and obligations of any Holder relative to the comparable rights and obligations of the other
Holders shall require the prior written consent of such adversely affected Holder. Any change, amendment or waiver by the Company
and the Required Holders shall be binding on the Holder of this Note and all holders of the Other Notes.


 


(16)TRANSFER.
This Note and any shares of Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by
the Holder without the consent of the Company, subject only to the provisions of Section 2(f) of the Securities Purchase Agreement.


 


(17)REISSUANCE OF
THIS NOTE.


 


(a)Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Note (in accordance with Section 17(d) and subject to Section 3(c)(iii)), registered
as the Holder may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire
outstanding Principal is being transferred, a new Note (in accordance with Section 17(d)) to the Holder representing the outstanding
Principal not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason
of the provisions of Section 3(c)(iii) following conversion or redemption of any portion of this Note, the outstanding Principal
represented by this Note may be less than the Principal stated on the face of this Note.


 


(b)Lost, Stolen
or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to
the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall
execute and deliver to the Holder a new Note (in accordance with Section 17(d)) representing the outstanding Principal.


 






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(c)Note Exchangeable
for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of
the Company, for a new Note or Notes (in accordance with Section 17(d) and in Principal amounts of at least $100,000) representing
in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding
Principal as is designated by the Holder at the time of such surrender.


 


(d)Issuance of
New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall
be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding
(or in the case of a new Note being issued pursuant to Section 17(a) or Section 17(c), the Principal designated by the Holder
which, when added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed
the Principal remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance
date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same
rights and conditions as this Note, and (v) shall represent accrued and unpaid Interest and Late Charges, if any, on the Principal
and Interest of this Note, from the Issuance Date.


 


(18)REMEDIES, CHARACTERIZATIONS,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in addition
to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree
of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder's right to pursue actual and
consequential damages for any failure by the Company to comply with the terms of this Note. Amounts set forth or provided for
herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by
the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance
thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder
and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such
breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining
any breach, without the necessity of showing economic loss and without any bond or other security being required.


 


(19)PAYMENT OF COLLECTION,
ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected
or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce
the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings
affecting Company creditors' rights and involving a claim under this Note, then the Company shall pay the costs incurred by the
Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other
proceeding, including, but not limited to, attorneys' fees and disbursements.


 






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(20)CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and all the purchasers of the Notes pursuant to the
Securities Purchase Agreement (the "Purchasers") and shall not be construed against any person as the drafter
hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation of,
this Note.


 


(21)FAILURE OR INDULGENCE
NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.


 


(22)DISPUTE RESOLUTION.
In the case of a dispute as to the determination of the Closing Bid Price, the Closing Sale Price or the Weighted Average Price
or the arithmetic calculation of the Conversion Rate, the Conversion Price or any Redemption Price, the Company shall submit the
disputed determinations or arithmetic calculations via facsimile or electronic mail within one (1) Business Day of receipt, or
deemed receipt, of the Conversion Notice or Redemption Notice or other event giving rise to such dispute, as the case may be,
to the Holder. If the Holder and the Company are unable to agree upon such determination or calculation within one (1) Business
Day of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall, within one
Business Day submit via facsimile or electronic mail (a) the disputed determination of the Closing Bid Price, the Closing Sale
Price or the Weighted Average Price to an independent, reputable investment bank selected by the Holder and approved by the Company,
such approval not to be unreasonably withheld or delayed, or (b) the disputed arithmetic calculation of the Conversion Rate, Conversion
Price or any Redemption Price to an independent, outside accountant, selected by the Holder and approved by the Company, such
approval not to be unreasonably withheld or delayed. The Company, at the Company's expense, shall cause the investment bank or
the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the
results no later than five (5) Business Days from the time it receives the disputed determinations or calculations. Such investment
bank's or accountant's determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable
error.


 


(23)NOTICES; PAYMENTS.


 


(a)Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance
with Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all
actions taken pursuant to this Note, including in reasonable detail a description of such action and the reason therefore. Without
limiting the generality of the foregoing, the Company shall give written notice to the Holder (i) immediately upon any adjustment
of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least
twenty (20) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or
distribution upon the Common Stock, (B) with respect to any pro rata subscription offer to holders of Common Stock or (C) for
determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that
such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder.


 






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(b)Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, such payment shall be made in lawful
money of the United States of America by a check drawn on the account of the Company and sent via overnight courier service to
such Person at such address as previously provided to the Company in writing (which address, in the case of each of the Purchasers,
shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase Agreement); provided, that
the Holder may elect to receive a payment of cash via wire transfer of immediately available funds by providing the Company with
prior written notice setting out such request and the Holder's wire transfer instructions. Whenever any amount expressed to be
due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding
day which is a Business Day. Any amount of Principal or other amounts due under the Transaction Documents which is not paid when
due shall result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount at the
rate of eighteen percent (18.0%) per annum from the date such amount was due until the same is paid in full ("Late Charge").


 


(24)CANCELLATION.
After all Principal, accrued Interest and other amounts at any time owed on this Note have been paid in full, this Note shall
automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.


 


(25)WAIVER OF NOTICE.
To the extent permitted by law, the Company hereby waives demand, notice, protest and all other demands and notices in connection
with the delivery, acceptance, performance, default or enforcement of this Note and the Securities Purchase Agreement.


 


(26)GOVERNING LAW;
JURISDICTION; JURY TRIAL. This Note shall be construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for
the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. The Company 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 to such party at the address
it set forth on the signature page hereto 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 manner permitted
by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action
against the Company in any other jurisdiction to collect on the Company's obligations to the Holder, to realize on any collateral
or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.


 






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(27)Severability.
If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect
the validity of the remaining provisions of this Note so long as this Note as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties
or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in
good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect
of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).


 


(28)DISCLOSURE.
Upon receipt or delivery by the Company of any notice in accordance with the terms of this Note, unless the Company has in good
faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company
or its Subsidiaries, the Company shall within one (1) Business Day after any such receipt or delivery publicly disclose such material,
nonpublic information on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains
material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to such Holder contemporaneously
with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters
relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.


 


(29)CERTAIN DEFINITIONS.
For purposes of this Note, the following terms shall have the following meanings:


 


(a)"Affiliate"
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common
control with, such Person, it being understood for purposes of this definition that "control" of a Person means the
power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors
of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.


 


(b)"Attribution
Parties" means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised
by the Holder's investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder
or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any
of the foregoing and (iv) any other Persons whose beneficial ownership of the Company's Common Stock would or could be aggregated
with the Holder's and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act. For clarity, the purpose
of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.


 






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(c)"Bloomberg"
means Bloomberg Financial Markets.


 


(d)"Business
Day" means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed.


 


(e)"Change
of Control" means any Fundamental Transaction other than (i) any reorganization, recapitalization or reclassification
of the Common Stock in which holders of the Company's voting power immediately prior to such reorganization, recapitalization
or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities
and, directly or indirectly, are, in all material respect, the holders of the voting power of the surviving entity (or entities
with the authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation)
of such entity or entities) after such reorganization, recapitalization or reclassification or (ii) pursuant to a migratory merger
effected solely for the purpose of changing the jurisdiction of incorporation of the Company.


 


(f)"Closing
Bid Price" and "Closing Sale Price" means, for any security as of any date, the last closing bid price
and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal
Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as
the case may be, then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York Time,
as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security,
the last closing bid price or last trade price, respectively, of such security on the principal securities exchange or trading
market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid
price or last trade price, respectively, of such security in the over-the-counter market on the electronic bulletin board for
such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security
by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported
in the OTC Link or "pink sheets" by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the Closing Bid Price
or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing
Bid Price or the Closing Sale Price, as the case may be, of such security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved pursuant to Section 22. All such determinations to be appropriately adjusted for
any stock dividend, stock split, stock combination, reclassification or similar transaction during the applicable calculation
period.


 






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(g)"Closing
Date" shall have the meaning set forth in the Securities Purchase Agreement, which date is the date the Company initially
issued Notes pursuant to the terms of the Securities Purchase Agreement.


 


(h)"Contingent
Obligation" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect
to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring
such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will
be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will
be protected (in whole or in part) against loss with respect thereto.


 


(i)"Eligible
Market" means The New York Stock Exchange, The Nasdaq Global Market, The
Nasdaq Global Select Market, The NASDAQ Capital Market or the NYSE MKT or, on or
prior to the end of the sixth (6th) month following the Issuance Date, the Principal Market.


 


(j)"Equity
Interests" means (a) all shares of capital stock (whether denominated as common capital stock or preferred capital stock),
equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership
or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting
or non-voting and (b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other
rights to purchase, subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable
or exercisable.


 


(k)"Exchange
Act" means the Securities Exchange Act of 1934, as amended.


 






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(l)"Fundamental
Transaction" means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or
otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving
corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of
the properties or assets of the Company or any of its "significant subsidiaries" (as defined in Rule 1-02 of Regulation
S-X) to one or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be
subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange
offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding
shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated
with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number
of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party
to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange
Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or
more Subject Entities whereby such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50% of the
outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any shares of
Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such
stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such
that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least
50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that any Subject
Entity individually or the Subject Entities in the aggregate is or shall become the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender,
tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner
whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock,
(y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such
Subject Entities as of the date of this Note calculated as if any shares of Common Stock held by all such Subject Entities were
not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common
Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger
or other transaction requiring other shareholders of the Company to surrender their shares of Common Stock without approval of
the shareholders of the Company or (C) the issuance of or the entering into any other instrument or transaction structured in
a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct
this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument
or transaction.


 


(m)"GAAP"
means United States generally accepted accounting principles, consistently applied.


 


(n)"Group"
means a "group" as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder.


 


(o)"Holiday"
means a day other than a Business Day or on which trading does not take place on the Principal Market.


 






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(p)"Indebtedness"
of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services, including (without limitation) "capital leases" in accordance
with GAAP (other than trade payables entered into in the ordinary course of business), (iii) all reimbursement or payment obligations
with respect to letters of credit, surety bonds and other similar instruments, (iv) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property,
assets or businesses, (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession
or sale of such property), (vi) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP,
consistently applied for the periods covered thereby, is classified as a capital lease, (vii) all indebtedness referred to in
clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets
(including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not
assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (i) through (vii) above.


 


(q)"Interest
Rate" means 12.00% per annum, subject to adjustment as set forth in Section 2.


 


(r)"Lead Investor"
means Empery Asset Master, Ltd.


 


(s)"Parent
Entity" of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity
whose common capital stock or equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Required
Holders, any other market, exchange or quotation system), or, if there is more than one such Person or such entity, the Person
or entity designated by the Required Holders or in the absence of such designation, such Person or entity with the largest public
market capitalization as of the date of consummation of the Fundamental Transaction.


 


(t)"Permitted
Indebtedness" means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) trade payables incurred in the
ordinary course of business consistent with past practice, (iii) Indebtedness incurred by the Company that is made expressly
subordinate in right of payment to the Indebtedness evidenced by this Note, as reflected in a written agreement acceptable to
the Required Holders and approved by the Required Holders in writing, and which Indebtedness does not provide at any time for
(a) the payment, prepayment, repayment, repurchase or defeasance, directly or indirectly, of any principal or premium, if any,
thereon until ninety-one (91) days after the Maturity Date or later and (b) total interest and fees at a rate in excess of twelve
percent (12.0%) per annum, (iv) Indebtedness secured by Permitted Liens described in clauses (iv) of the definition of Permitted
Liens, (v) deemed Indebtedness arising from one or more operating leases, including, without limitation, the leases for one or
more test turbines from Dresser-Rand, but only if such lease, if secured, is secured solely by such test turbine, and (vi) Indebtedness
listed on Schedule 29(t) attached hereto.


 






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(u)"Permitted
Liens" means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course
of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation
of law, such as materialmen's liens, mechanics' liens and other similar liens, arising in the ordinary course of business with
respect to a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings,
(iv) Liens (A) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price
of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment, or
(B) existing on such equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired
and improvements thereon, and the proceeds of such equipment, (v) Liens incurred in connection with the extension, renewal or
refinancing of the indebtedness secured by Liens of the type described in clause (iv) above, provided that any extension, renewal
or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the Indebtedness
being extended, renewed or refinanced does not increase, (vi) leases or subleases and licenses and sublicenses granted to others
in the ordinary course of the Company's business, not interfering in any material respect with the business of the Company and
its Subsidiaries taken as a whole, (vii) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payments of custom duties in connection with the importation of goods and (viii) Liens arising from judgments, decrees or attachments
in circumstances not constituting an Event of Default under Section 4(a)(viii).


 


(v)"Person"
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency thereof.


 


(w)"Principal
Market" means the OTC QB.


 


(x)"QPO Derivative
Securities" means securities of the Company directly or indirectly convertible, exchangeable or exercisable into Common
Stock that are issued in connection with a Qualified Public Offering.


 


(y)"Qualified
Public Offering" means a sale of the Company's Common Stock and/or QPO Derivative Securities in a firm commitment underwritten
public offering registered under the Securities Act (other than a registration relating solely to a transaction under Rule 145
under the Securities Act (or any successor thereto) or to an employee benefit plan of the Company), with aggregate gross proceeds
to the Company which equal or exceed $10,000,000.


 


(z)"Redemption
Dates" means, collectively, the Event of Default Redemption Dates, the Change of Control Redemption Dates, the Holder
Optional Redemption Dates and the Company Optional Redemption Dates, each of the foregoing, individually, a Redemption Date.


 


(aa)"Redemption
Notices" means, collectively, the Event of Default Redemption Notices, the Change of Control Redemption Notices, the
Holder Optional Redemption Notices and the Company Optional Redemption Notices, each of the foregoing, individually, a Redemption
Notice.


 


(bb)"Redemption
Prices" means, collectively, the Event of Default Redemption Prices, the Change of Control Redemption Prices, the Holder
Optional Redemption Prices and the Company Optional Redemption Prices, each of the foregoing, individually, a Redemption Price.


 






    	- 29 -



    	 



    

 


(cc)"Related
Fund" means, with respect to any Person, a fund or account managed by such Person or an Affiliate of such Person.


 


(dd)"Required
Holders" means the holders of Notes representing at least a majority of the aggregate principal amount of the Notes then
outstanding and shall include the Lead Investor so long as the Lead Investor or any of its Affiliates holds any Notes.


 


(ee)"SEC"
means the United States Securities and Exchange Commission.


 


(ff)"Securities
Act" means the Securities Act of 1933, as amended.


 


(gg)"Securities
Purchase Agreement" means that certain securities purchase agreement dated as of the Subscription Date by and among the
Company and the Purchasers of the Notes pursuant to which the Company issued the Notes and Warrants.


 


(hh)"Subject
Entity" means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.


 


(ii)"Subscription
Date" means April 22, 2015.


 


(jj)"Successor
Entity" means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the
Company or the Parent Entity) with which such Fundamental Transaction shall have been entered into.


 


(kk)"Trading
Day" means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common
Stock is then traded; provided that "Trading Day" shall not include any day on which the Common Stock is scheduled to
trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the
final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time
of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).


 


(ll)"Warrants"
has the meaning ascribed to such term in the Securities Purchase Agreement, and shall include all warrants issued in exchange
therefor or replacement thereof.


 






    	- 30 -



    	 



    

 


(mm)"Weighted
Average Price" means, for any security as of any date, the dollar volume-weighted average price for such security on
the Principal Market during the period beginning at 9:30:01 a.m., New York Time (or such other time as the Principal Market publicly
announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as the Principal Market
publicly announces is the official close of trading) as reported by Bloomberg through its "Volume at Price" functions,
or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market
on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York Time (or such other time
as such market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time
as such market publicly announces is the official close of trading) as reported by Bloomberg, or, if no dollar volume-weighted
average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the
lowest closing ask price of any of the market makers for such security as reported in the OTC Link or "pink sheets"
by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the Weighted Average Price cannot be calculated for a security
on a particular date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the
fair market value of such security, then such dispute shall be resolved pursuant to Section 22. All such determinations to be
appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction during
the applicable calculation period.


 


[Signature Page Follows]








 






    	- 31 -



    	 



    

 


IN WITNESS WHEREOF, the
Company has caused this Note to be duly executed as of the Issuance Date set out above.


 





	 	Ener-Core, Inc.
	 	 	 
	 	By:	 
	 	 	Name:  Alain J. Castro
	 	 	Title:    Chief Executive Officer




 






    	 



    	 



    

 


EXHIBIT I



Ener-Core, inc.


 


CONVERSION NOTICE


 


Reference is made to the Senior Secured Note
(the "Note") issued to the undersigned by Ener-Core, Inc., a Nevada corporation (the "Company").
In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the
Note) of the Note indicated below into shares of Common Stock par value $0.0001 per share (the "Common Stock")
of the Company, as of the date specified below.


 





	 	Date of Conversion:	 
	 	 	 
	 	Aggregate Conversion Amount to be converted:	 
	 	 	 
	Please confirm the following information:	 
	 	 
	 	Conversion Price:	 
	 	Number of shares of Common Stock to be issued:	 
	 	 	 
	Please issue the Common Stock into which the Note is being converted in the following name and to the following address:
	 
	 	Issue to:	 
	 	 	 
	 	 	 
	 	 	 
	 	Facsimile Number and Electronic Mail:	 
	 	Authorization:	 
	 	By:	 
	 	Title:	 
	 	 	 
	Dated:	 
	 	 
	 	Account Number:	 
	 	(if electronic book entry transfer)	 
	 	Transaction Code Number:	 
	 	(if electronic book entry transfer)	 




 






    	 



    	 



    

 


ACKNOWLEDGMENT


 


The Company hereby acknowledges
this Conversion Notice and hereby directs VStock Transfer, LLC to issue the above indicated number of shares of Common Stock in
accordance with the Transfer Agent Instructions dated April 23, 2015 from the Company and acknowledged and agreed to by VStock
Transfer, LLC.


 





	 	Ener-Core, Inc.
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title: