SECURITIES PURCHASE AGREEMENT


 


AGREEMENT,
dated as of October 1, 2013, between 3DICON Corporation (“Company”), and GCA Strategic Investment Fund Limited (“Purchaser”).


 


RECITALS:


 


WHEREAS, subject
to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchaser
up to $205,000.00 aggregate face amount of Company’s Senior Convertible Note due nine (9) months from the respective date
of issuance (the “ Senior Convertible Note”), with terms and conditions as set forth in the form of Senior Convertible
Note attached hereto as Exhibit A;


 


WHEREAS, in
order to induce the Purchaser to enter into the transactions described in this Agreement, the Company desires to issue to the
Purchaser a warrant to purchase 300,000 shares of Common Stock upon the Closing (as defined herein) on the terms and conditions
described in the form of the common stock purchase warrant attached hereto as Exhibit F (the “Warrants”); and


 


WHEREAS, the
Senior Convertible Note may be convertible, and Warrants exercised into shares of the Company’s common stock, $0.0002 par
value per share (the “ Common Stock”), pursuant to Rule 144 (the “Conversion Shares”).


  


NOW, THEREFORE,
in consideration of the foregoing premises and the covenants contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE 1.    DEFINITIONS


 


1            Definitions.
The following terms, as used herein, have the following meanings:


 


“Additional
Shares of Common Stock” has the meaning set forth in Section 11.6.


 


“Affiliate”
means, with respect to any Person (the “ Subject Person”), (i) any other Person (a “ Controlling Person”)
that directly, or indirectly through one or more intermediaries, Controls the Subject Person or (ii) any other Person (other
than the Subject Person or a Consolidated Subsidiary of the Subject Person) which is Controlled by or is under common Control
with a Controlling Person.


 


“Agreement”
means this Securities Purchase Agreement, as amended, supplemented or otherwise modified from time to time in accordance with
its terms.


 


“Asset Sale”
has the meaning set forth in Section 8.4.


 




    	 



    	 



    

 


“Balance Sheet
Date” has the meaning set forth in Section 4.7.


 


“Benefit Arrangement”
means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer
Plan and which is maintained or otherwise contributed to by the Company.


 


“Benefit Plans”
has the meaning set forth in Section 4.9(b).


 


“Business Day”
means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized or required
by law to close.


 


“Capital Reorganization”
has the meaning set forth in Section 11.5.


 


“Change in Control”
means (i) after the date of this Agreement, any person or group of persons (within the meaning of Sections 13 and 14 of the
Exchange Act and the rules and regulations of the Commission relating to such sections) other than Purchaser shall have acquired
beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated by the Commission pursuant to the Exchange Act)
of 33% or more of the outstanding shares of Common Stock of the Company without the prior written consent of Purchaser; (ii) any
sale or other disposition (other than by reason of death or disability) to any Person of more than 5% of the issued and outstanding
shares of Common Stock of the Company by any executive officers and/or employee directors of the Company without the prior written
consent of Purchaser; (iii) individuals constituting the Board of Directors of the Company on the date hereof (together with
any new Directors whose election by such Board of Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of at least 50.1% of the Directors still in office who are either Directors as of the date hereof or whose
election or nomination for election was previously so approved), cease for any reason to constitute at least one-third of the
Board of Directors of the Company then in office.


 


“VWAP”
shall mean for any security as of any date, the Volume Weighted Average Price as reported by Bloomberg, L.P. (“ Bloomberg”)
on the principal securities exchange or trading market where such security is listed or traded or, if the foregoing does not apply,
the Volume Weighted Average Price of such security in the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg, or, if no Volume Weighted Average Price is reported for such security by Bloomberg, then the average
of the bid prices of any market makers for such securities as reported in the “Pink Sheets” by the National Quotation
Bureau, Inc. If the lowest closing bid price cannot be calculated for such security on such date on any of the foregoing bases,
the lowest closing bid price of such security on such date shall be the fair market value as mutually determined by Purchaser
and the Company for which the calculation of the closing bid price requires, and in the absence of such mutual determination,
as determined by the Board of Directors of the Company in good faith.


 


“Closing Date”
means the date on which all of the conditions set forth in Sections 6.1 and 6.2 shall have been satisfied and Senior Convertible
Note, and Warrants, in the aggregate principal amount of $205,000.00 are issued by the Company to Purchaser.


 




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“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Commission”
means the Securities and Exchange Commission or any entity succeeding to all of its material functions.


 


“Common Stock”
means common stock, $0.0002 par value per share, of the Company.


 


“Company”
means 3DICON Corporation, an Oklahoma corporation and its successors.


 


“Company Corporate
Documents” means the certificate of incorporation and bylaws of the Company.


 


“Consolidated
Net Worth” means at any date the total shareholder’s equity which would appear on a consolidated balance sheet of
the Company prepared as of such date.


 


“Consolidated
Subsidiary” means at any date with respect to any Person or Subsidiary or other entity, the accounts of which would be consolidated
with those of such Person in its consolidated financial statements if such statements were prepared as of such date.


 


“Control”
(including, with correlative meanings, the terms “Controlling,” “Controlled by” and under “common
Control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract
or otherwise.


 


“Conversion
Date” shall mean the date of delivery (including delivery via telecopy or email) of a Notice of Conversion for all or a
portion of a Senior Convertible Note by the holder thereof to the Company as specified in each Senior Convertible Note.


 


“Conversion
Price” has the meaning set forth in the Senior Convertible Note.


 


“Conversion
Shares” has the meaning set forth in the Recitals.


 


“Senior Convertible
Note” means the Company’s Senior Convertible Note substantially in the form set forth as Exhibit A hereto.


 


“Deadline”
has the meaning set forth in Section 10.1.


 


“Debt”
of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments issued by such Person, (iii) all
obligations of such Person as lessee which (y) are capitalized in accordance with GAAP or (z) arise pursuant to sale-leaseback
transactions, (iv) all reimbursement obligations of such Person in respect of letters of credit or other similar instruments,
(v) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is otherwise an obligation
of such Person and (vi) all Debt of others Guaranteed by such Person.


 




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“Default”
means any event or condition which constitutes an Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.


 


“Derivative
Securities” has the meaning set forth in Section 8.6.


 


“Directors”
means the individuals then serving on the Board of Directors or similar such management council of the Company.


 


“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment
or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes into the environment, including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances
or wastes or the cleanup or other remediation thereof.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.


 


“ERISA Group”
means the Company and each Subsidiary and all members of a controlled group of corporation and all trades or businesses (whether
or not incorporated) under common control which, together with the Company or any Subsidiary, is treated as a single employer
under the Code.


 


“Event of Default”
has the meaning set forth in Article 13 hereof.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Expense Reimbursement
Fee” has the meaning set forth in Section 14.4.


 


“Financing”
means a public or private financing consummated (meaning closing and funding) through the issuance of debt or equity securities
(or securities convertible into or exchangeable for debt or equity securities) of the Company, other than Permitted Financings.


 


“Fixed Price(s)”
has the meaning set forth in Section 11.1.


 




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“GAAP”
has the meaning set forth in Section 1.2.


 


“Guarantee”
by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing (whether by virtue
of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain a minimum net worth, financial ratio or similar requirements, or otherwise) any Debt of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or (ii) entered into for the purpose
of assuring in any other manner the holder of such Debt of the payment thereof or to protect such holder against loss in respect
thereof (in whole or in part); provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The term Guarantee used as a verb has a corresponding meaning.


 


“Hazardous Materials”
means any hazardous materials, hazardous wastes, hazardous constituents, hazardous or toxic substances or petroleum products (including
crude oil or any derivative or fraction thereof), defined or regulated as such in or under any Environmental Laws.


 


“Investment”
means any investment in any Person, whether by means of share purchase, partnership interest, capital contribution, loan, time
deposit or otherwise.


 


“Lien”
means any lien, mechanic’s lien, material men’s lien, lease, easement, charge, encumbrance, mortgage, conditional
sale agreement, title retention agreement, agreement to sell or convey, option, claim, title imperfection, encroachment or other
survey defect, pledge, restriction, security interest or other adverse claim, whether arising by contract or under law or otherwise
(including, without limitation, any financing lease having substantially the same economic effect as any of the foregoing, and
the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction in respect of any
of the foregoing).


 


“Majority Holders”
means (i) as of the Closing Date, Purchaser


 


“Market Price”
shall mean the Closing Bid Price of the Common Stock preceding the date of determination.


 


“Material Plan”
means at any time a Plan or Plans having aggregate Unfunded Liabilities in excess of $50,000.


 


“Maturity Date”
shall mean the date of maturity of the Senior Convertible Note.


 


“Maximum Number
of Shares” shall mean that percentage that the Company may issue without shareholder approval under the applicable rules
of the National Market or the applicable OTC Bulletin Board or equivalent entity, of the then issued and outstanding shares of
Common Stock of the Company as of the applicable date of determination, or such greater number of shares as the stockholders of
the Company may have previously approved.


 




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“Nasdaq Market”
means the Nasdaq Stock Market’s National Market System.


 


“National Market”
means the Nasdaq Market, the Nasdaq Small Cap Market, the New York Stock Exchange, Inc. or the American Stock Exchange, Inc..


 


“Net Cash Proceeds”
means, with respect to any transaction, the total amount of cash proceeds received by the Company or any Subsidiary less (i) reasonable
underwriters’ fees, brokerage commissions, reasonable professional fees and other customary out-of-pocket expenses payable
in connection with such transaction, and (ii) in the case of dispositions of assets, (A) actual transfer taxes (but
not income taxes) payable with respect to such dispositions, and (B) the amount of Debt, if any, secured by a Lien on the
asset or assets disposed of and required to be, and actually repaid by the Company or any Subsidiary in connection therewith,
and any trade payables specifically relating to such asset or assets sold by the Company or any Subsidiary that are not assumed
by the purchaser of such asset or assets.


 


“Notice of Conversion”
means the form to be delivered by a holder of a Senior Convertible Note upon conversion of all or a portion thereof to the Company
substantially in the form of Exhibit A to the form of Senior Convertible Note .


 


“Officer’s
Certificate” shall mean a certificate executed by the President, chief executive officer or chief financial officer of the
Company in the form of Exhibit D attached hereto.


 


"OTC Bulletin
Board" means the over-the-counter bulletin board operated by the NASD.


 


“Outstanding
Debt” means any debt securities or payables of the Company outstanding as of the Closing Date and the obligations and commitments
of the Company pursuant to that certain Settlement Agreement between the Company and IBC Funds, LLC, which agreement was described
in and filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on July 31, 2013.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.


 


“Permits”
means all domestic and foreign licenses, franchises, grants, authorizations, permits, easements, variances, exemptions, consents,
certificates, orders and approvals necessary to own, lease and operate the properties of, and to carry on the business of the
Company and the Subsidiaries.


 


“Permitted Financings”
means a secondary registered offering of securities of the Company, the extension or conversion into Common Stock of Outstanding
Debt, a private placement financing in which the Company raises minimum gross proceeds of $1,500,000 and maximum gross proceeds
of $3,000,000 or other financing transactions specifically consented to in writing by Purchaser.


 




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


 


“Plan”
means at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding
standards under the Code and either (i) is maintained, or contributed to, by any member of the ERISA group for employees
of any member of the ERISA group or (ii) has at any time within the preceding five years been maintained, or contributed
to, by any Person which was at such time a member of the ERISA group for employees of the Person which was at such time a member
of the ERISA Group.


 


“Purchase Price”
means the purchase price for the Securities set forth in Section 2.2 hereof.


 


“Purchaser”
means the entity listed on the signature page hereto and its successors and assigns, including holders from time to time of the
Senior Convertible Note .


 


“Recourse Financing”
means Debt of the Company or any Subsidiary which, by its terms, does not bar the lender thereof from action against the Company
or any Subsidiary, as borrower or guarantor, if the security value of the project or asset pledged in respect thereof falls below
the amount required to repay such Debt.


 


“Redemption
Event” has the meaning set forth in Section 3.4.


 


“Restricted
Payment” means, with respect to any Person, (i) any dividend or other distribution on any shares of capital stock of
such Person (except dividends payable solely in shares of capital stock of the same or junior class of such Person and dividends
from a wholly-owned direct or indirect Subsidiary of the Company to its parent corporation), (ii) any payment on account
of the purchase, redemption, retirement or acquisition of (a) any shares of such Person’s capital stock or (b) any
option, warrant or other right to acquire shares of such Person’s capital stock or (iii) any loan, or advance or capital
contribution to any Person (a “ Stockholder”) owning any capital stock of such Person other than relocation, travel
or like advances to officers and employees in the ordinary course of business, and other than reasonable compensation as determined
by the Board of Directors.


 


“Rights Offering”
has the meaning set forth in Section 11.3.


 


“Sale Event”
has the meaning set forth in Section 3.4.


 


“Securities”
means the Senior Convertible Note, Warrants and, as applicable, the Conversion Shares.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Share Reorganization”
has the meaning set forth in Section 11.2.


 




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“Solvency Certificate”
shall mean a certificate executed by the treasurer of the Company as to the solvency of the Company, the adequacy of its capital
and its ability to pay its debts, all after giving effect to the issuance and sale of the Senior Convertible Note , issuance of
the Warrants, and the completion of the offering (including without limitation the payment of any fees or expenses in connection
therewith), which such Solvency Certificate shall be in the form of Exhibit C attached hereto.


 


“Special Distribution”
has the meaning set forth in Section 11.4.


 


“Subsidiary”
means, with respect to any Person, any corporation or other entity of which (x) a majority of the capital stock or other
ownership interests having ordinary voting power to elect a majority of the Board of Directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person or (y) the results of operations, the assets and the
liabilities of which are consolidated with such Person under GAAP.


 


“Subsidiary
Corporate Documents” means the certificates of incorporation and bylaws of each Subsidiary.


 


“Taxes”
has the meaning set forth in Section 3.6.


 


“Trading Day”
shall mean any Business Day in which the OTC Bulletin Board, National Market or other automated quotation system or exchange on
which the Common Stock is then traded is open for trading for at least four (4) hours.


 


“Transaction
Agreements” means this Agreement, the Senior Convertible Note, Warrants and the any other agreements contemplated by this
Agreement.


 


“Transfer”
means any disposition of Securities that would constitute a sale thereof under the Securities Act.


 


“Unfunded Liabilities”
means, with respect to any Plan at any time, the amount (if any) by which (i) the present value of all benefits under Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.


 


"Warrant"
means the Common Stock Purchase Warrant substantially in the form set forth in Exhibit F hereto.


 


2            Accounting
Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in
accordance with generally accepted accounting principles as in effect from time to time, applied on a consistent basis (except
for changes concurred in by the Company’s independent public accountants) (“ GAAP”). All references to “dollars,”
“Dollars” or “$” are to United States dollars unless otherwise indicated.


 




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ARTICLE 2.    PURCHASE
AND SALE OF SECURITIES


 


1            Purchase
and Sale of Senior Convertible Note and Warrants.


 


(a)          Subject
to the terms and conditions set forth herein, the Company agrees to issue and sell to Purchaser, and Purchaser agrees to purchase
from the Company, Senior Convertible Note and Warrants up to the aggregate principal amount.


 


(b)         
Purchaser shall acquire Senior Convertible Note and Warrants on the Closing Date in an aggregate principal amount of Two Hundred
Five Thousand Dollars ($205,000.00).


 


(c)          
In connection with the Purchaser’s agreement to purchase the Senior Convertible Note specified in this Article II, the Company
shall issue and deliver to the Purchaser on the Closing Date a Warrant to purchase an aggregate of 300,000 shares of Common Stock.


 


2            Purchase
Price. The purchase price for the Senior Convertible Note and Warrants on the Closing Date is $174,250.00 (the “ Purchase
Price”).


 


3            Closing
and Mechanics of Payment.


 


(a)          The
Purchase Price shall be paid on the Closing Date by wire transfer of immediately available funds.


 


(b)          The
Senior Convertible Note and Warrants issued on the Closing Date shall be dated the date hereof.


 


ARTICLE 3.    PAYMENT
TERMS OF CONVERTILE BRIDGE NOTES


 


1            Payment
of Principal and Interest; Payment Mechanics. The Company will pay all amounts due on the Senior Convertible Note by the method
and at the address specified for such purpose by Purchaser in writing, without the presentation or surrender of any Senior Convertible
Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of this Senior Convertible Note , the holder shall surrender the Senior Convertible
Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office. Prior to
any sale or other disposition of any Senior Convertible Note , the holder thereof will, at its election, either endorse thereon
the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender the Senior Convertible
Note to the Company in exchange for a new Senior Convertible Note or Senior Convertible Note . The Company will afford the benefits
of this Section 3.1 to any direct or indirect transferee of the Senior Convertible Note and Warrants purchased under this
Agreement and that has made the same agreement relating to this Senior Convertible Note and Warrants as Purchaser has in this
Section 3.1; provided that such transferee is an “accredited investor” under Rule 501 of the Securities
Act.


 




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2            Voluntary
Prepayment. For so long as no Event of Default shall have occurred and is continuing, the Company may, at its option, repay,
in whole or in part, the Senior Convertible Note , per the formula set forth in Section 5.1 of Exhibit A hereto, thereof
following at least five (5) Business Days prior written notice to Purchaser (the expiration of such five (5) Business Day period
being referred to as the “prepayment date”); provided, however, that if such date is not a Business
Day, the prepayment date shall be the next Business Day thereafter.


 


3            Mandatory
Prepayments.


 


(a)          Upon
(i) the occurrence of a Change in Control of the Company, (ii) a transfer of all or substantially all of the assets
of the Company to any Person in a single transaction or series of related transactions, or (iii) a consolidation, merger
or amalgamation of the Company with or into another Person in which the Company is not the surviving entity (other than a merger
which is effected solely to change the jurisdiction of incorporation of the Company and results in a reclassification, conversion
or exchange of outstanding shares of Common Stock solely into shares of Common Stock) (each of items (i), (ii) and (iii) being
referred to as a “ Sale Event”) , then, in each case, the Company shall, upon request of the Majority Holders, redeem
the Senior Convertible Note and Warrants , subject to the provisions of Section 5 of the Senior Convertible Note . The
redemption price payable upon any such redemption shall be the Redemption Price in Section 5 of the Senior Convertible
Note (referred to herein as the "Formula Price").


 


(b)          At
the option of Purchaser, upon the consummation of one or more Financings, the Company shall use 100% of the Net Cash Proceeds
therefrom (unless such Net Cash Proceeds from each such Financing is less than $300,000) to redeem the Senior Convertible Note
..


 


4            Prepayment
Procedures.


 


(a)          Any
permitted prepayment or redemption of the Senior Convertible Note , as applicable pursuant to Sections 3.2 or 3.3 above shall
be deemed to be effective and consummated (for purposes of determining the Formula Price and the time at which Purchaser shall
thereafter not be entitled to deliver a Notice of Conversion for the Senior Convertible Note ) as follows:


 


(i)          A
prepayment pursuant to Section 3.2, the “prepayment date” specified therein;


 




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(ii)         A
redemption pursuant to Section 3.3(a), the date of consummation of the applicable Sale Event; and


 


(iii)        A
redemption pursuant to Section 3.3(b), three (3) Business Days following the date of consummation of the applicable Financing
(meaning closing and funding).


 


(b)          On
the Maturity Date and on the effective date of a repayment or redemption of the Senior Convertible Note as specified in Section 3.4(a)
above, the Company shall deliver by wire transfer of funds the repayment/redemption price to Purchaser of the Senior Convertible
Note subject to redemption. Should Purchaser not receive payment of any amounts due on redemption of its Senior Convertible Note
by reason of the Company’s failure to make payment at the times prescribed above for any reason, the Company shall pay to
the applicable holder on demand (x) interest on the sums not paid when due at an annual rate equal to the maximum lawful
rate compounded at the end of each thirty (30) days, until the applicable holder is paid in full and (y) all costs of collection,
including, but not limited to, reasonable attorneys’ fees and costs, whether or not suit or other formal proceedings are
instituted.


 


(c)          The
Company shall select the Senior Convertible Note to be redeemed in any redemption in which not all of the Senior Convertible Note
are to be redeemed so that the ratio of the Senior Convertible Note of each holder selected for redemption to the total Senior
Convertible Note owned by that holder shall be the same as the ratio of all such Senior Convertible Note selected for redemption
bears to the total of all then outstanding Senior Convertible Note. Should any Senior Convertible Note required to be redeemed
under the terms hereof not be redeemed solely by reason of limitations imposed by law, the applicable Senior Convertible Note
shall be redeemed on the earliest possible dates thereafter to the maximum extent permitted by law.


 


(d)          Any
Notice of Conversion delivered by Purchaser (including delivery via telecopy) to the Company prior to the (x) Maturity Date
or (y) effective date of a voluntary repayment pursuant to Section 3.3 or a mandatory prepayment pursuant to Section 3.4
as specified in Section 3.5(a) above), shall be honored by the Company and the conversion of the Senior Convertible Note
shall be deemed effected on the Conversion Date. In addition, between the effective date of a voluntary prepayment pursuant to
Section 3.3 or a mandatory prepayment pursuant to Section 3.4 as specified in Section 3.5(a) above and the date
the Company is required to deliver the redemption proceeds in full to Purchaser, Purchaser may deliver a Notice of Conversion
to the Company. Such notice will be (x) of no force or effect if the Company timely pays the redemption proceeds to Purchaser
when due or (y) honored on or as of the date of the Notice of Conversion if the Company fails to timely pay the redemption
proceeds to Purchaser when due.


 




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5            Payment
of Additional Amounts.


 


(a)          Any
and all payments by the Company hereunder or under the Senior Convertible Note to Purchaser and each “qualified assignee”
thereof shall be made free and clear of and without deduction or withholding for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto (all such taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as “ Taxes”) unless such Taxes are required by
law or the administration thereof to be deducted or withheld. If the Company shall be required by law or the administration thereof
to deduct or withhold any Taxes from or in respect of any sum payable under the Senior Convertible Note (i) the holders of
the Senior Convertible Note subject to such Taxes shall have the right, but not the obligation, for a period of thirty (30) days
commencing upon the day it shall have received written notice from the Company that it is required to withhold Taxes to transfer
all or any portion of the Senior Convertible Note to a qualified assignee to the extent such transfer can be effected in accordance
with the other provisions of this Agreement and applicable law; (ii) the Company shall make such deductions or withholdings;
(iii) the sum payable shall be increased as may be necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional amounts paid under this Section 3.5) Purchaser receives an
amount equal to the sum it would have received if no such deduction or withholding had been made; and (iv) the Company shall
forthwith pay the full amount deducted or withheld to the relevant taxation or other authority in accordance with applicable.
A “qualified assignee” of a Purchaser is a Person that is organized under the laws of (i) the United States or
(II) any jurisdiction other than the United States or any political subdivision thereof and that (y) represents and
warrants to the Company that payments of the Company to such assignee under the laws in existence on the date of this Agreement
would not be subject to any Taxes and (z) from time to time, as and when requested by the Company, executes and delivers
to the Company and the Internal Revenue Service forms, and provides the Company with any information necessary to establish such
assignee’s continued exemption from Taxes under applicable law.


 


(b)          The
Company shall forthwith pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (all such taxes, charges and levies hereinafter referred to as “ Other Taxes”) which arise from any
payment made under any of the Transaction Agreements or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement other than Taxes payable solely as a result of the transfer from Purchaser to a Person of any Security.


 


(c)          The
Company shall indemnify Purchaser, or qualified assignee, for the full amount of Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 3.5) paid by Purchaser, or qualified
assignee, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days
from the date Purchaser or assignee makes written demand therefor. A certificate as to the amount of such Taxes or Other Taxes
submitted to the Company by Purchaser or assignee shall be conclusive evidence of the amount due from the Company to such party.


 




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(d)          Within
30 days after the date of any payment of Taxes, the Company will furnish to Purchaser the original or a certified copy of a receipt
evidencing payment thereof.


 


(e)          Purchaser
shall provide to the Company a form W-8, stating that it is a non-U.S. person, together with any additional tax forms which may
be required under the Code, as amended after the date hereof, to allow interest payments to be made to it without deduction.


 


ARTICLE 4.    REPRESENTATIONS
AND WARRANTIES


 


The Company represents
and warrants to Purchaser, as of the Closing Date and again at the closing of each Subsequent Takedown, the following:


 


1            Organization
and Qualification. The Company and each Subsidiary is a corporation (or other legal entity) duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, with full power and authority to own, lease, use and
operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company
is qualified to conduct business as a foreign corporation and is in good standing in every jurisdiction in which the nature of
the business conducted by it makes such qualification necessary, except where such failure would not have a Material Adverse Effect.
A “ Material Adverse Effect” means any material adverse effect on the operations, results of operations, properties,
assets or condition (financial or otherwise) of the Company or the Company and its Subsidiaries, taken as a whole, or on the transactions
contemplated hereby or by the agreements or instruments to be entered into in connection herewith.


 


2            Authorization
and Execution.


 


(a)          The
Company has all requisite corporate power and authority to enter into and perform each Transaction Agreement and to consummate
the transactions contemplated hereby and thereby and to issue the Securities in accordance with the terms hereof and thereof.


 


(b)          The
execution, delivery and performance by the Company of each Transaction Agreement and the issuance by the Company of the Securities
have been duly and validly authorized and no further consent or authorization of the Company, its Board of Directors or its shareholders
is required.


 


(c)          This
Agreement has been duly executed and delivered by the Company.


 




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(d)          This
Agreement constitutes, and upon execution and delivery thereof by the Company, each of the Transaction Agreements will constitute,
a valid and binding agreement of the Company, in each case enforceable against the Company in accordance with its respective terms.


 


3            Capitalization.
As of the date hereof, the authorized, issued and outstanding capital stock of the Company is as set forth on Schedule 4.3
hereto and except as set forth on Schedule 4.3 no other shares of capital stock of the Company will be outstanding
as of the Closing Date. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly
issued, fully paid and nonassessable. No shares of capital stock of the Company are subject to preemptive rights or similar rights
of the stockholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company.
Other than as set forth on Schedule 4.3 hereto, as of the date hereof, (i) there are no outstanding options,
warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments
or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of
capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or
may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, and (ii) there are
no agreements or arrangements under which the Company or any of its Subsidiaries are obligated to register the sale of any of
its or their securities under the Securities Act and (iii) there are no anti-dilution or price adjustment provisions contained
in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the
issuance of the Senior Convertible Note or Conversion Shares. The Company has furnished to Purchaser true and correct copies of
the Company’s Corporate Documents, and the terms of all securities convertible into or exercisable for Common Stock and
the material rights of the holders thereof in respect thereto.


 


4            Governmental
Authorization. The execution and delivery by the Company of the Transaction Agreements does not and will not, the issuance
and sale by the Company of the Securities does not and will not, and the consummation of the transactions contemplated hereby
and by the other Transaction Agreements will not, require any action by or in respect of, or filing with, any governmental body,
agency or governmental official except (a) such actions or filings that have been undertaken or made prior to the date hereof
and that will be in full force and effect (or as to which all applicable waiting periods have expired) on and as of the date hereof
or which are not required to be filed on or prior to the Closing Date and (b) such actions or filings that, if not obtained,
would not result in a Material Adverse Effect.


 


5            Issuance
of Shares. Upon conversion in accordance with the terms of the Senior Convertible Note and exercise in accordance with the
terms of the Warrant , the Conversion Shares shall be duly and validly issued and outstanding, fully paid and nonassessable, free
and clear of any Taxes, Liens and charges with respect to issuance and shall not be subject to preemptive rights or similar rights
of any other stockholders of the Company. Assuming the representations and warranties of Purchaser herein are true and correct
in all material respects, each of the Securities will have been issued in material compliance with all applicable U.S. federal
and state securities laws. The Company understands and acknowledges that, in certain circumstances, the issuance of Conversion
Shares could dilute the ownership interests of other stockholders of the Company. The Company further acknowledges that its obligation
to issue Conversion Shares upon conversion of the Senior Convertible Note is absolute and unconditional regardless of the dilutive
effect that such issuance may have on the ownership interests of other stockholders of the Company.


 




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6            No
Conflicts. The execution and delivery by the Company of the Transaction Agreements to which it is a party did not and will
not, the issuance and sale by the Company of the Securities did not and will not and the consummation of the transactions contemplated
hereby and by the other Transaction Agreements will not, contravene or constitute a default under or violation of (i) any
provision of applicable law or regulation, (ii) the Company Corporate Documents, (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Company or any Subsidiary or any of their respective assets, or result in the
creation or imposition of any Lien on any asset of the Company or any Subsidiary. The Company and each Subsidiary is in compliance
with and conforms to all statutes, laws, ordinances, rules, regulations, orders, restrictions and all other legal requirements
of any domestic or foreign government or any instrumentality thereof having jurisdiction over the conduct of its businesses or
the ownership of its properties, except where such failure would not have a Material Adverse Effect.


 


7            Financial
Information. Since June 31, 2013 (the “ Balance Sheet Date”), except as disclosed in the Company’s public
filings or in Schedule 4.7, there has been (x) no material adverse change in the assets or liabilities, or in the
business or condition, financial or otherwise, or in the results of operations or prospects, of the Company and its Subsidiaries,
whether as a result of any legislative or regulatory change, revocation of any license or rights to do business, fire, explosion,
accident, casualty, labor trouble, flood, drought, riot, storm, condemnation, act of God, public force or otherwise and (y) no
material adverse change in the assets or liabilities, or in the business or condition, financial or otherwise, or in the results
of operations or prospects, of the Company and its subsidiaries except in the ordinary course of business; and no fact or condition
exists or is contemplated or threatened which might cause such a change in the future. The unaudited consolidated balance sheets
of the Company and its Subsidiaries for the periods ending December 31, 2010, 2011 and 2012, and the related consolidated statements
of income, changes in stockholders’ equity and changes in cash flows for the periods then ended, including the footnotes
thereto, except as indicated therein, (i) complied in all material respects with applicable accounting requirements and (ii) have
been prepared in accordance with GAAP consistently applied throughout the periods indicated, except that the unaudited financial
statements do not contain notes and may be subject to normal audit adjustments and normal annual adjustments. Such financial statements
fairly present the financial condition of the Company and its Subsidiaries at the dates indicated and the consolidated results
of their operations and cash flows for the periods then ended and, except as indicated therein, reflect all claims against and
all Debts and liabilities of the Company and its Subsidiaries, fixed or contingent.


 




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8            Litigation.
Except as set forth in the Company’s public filings or on Schedule 4.8, there is no action, suit or proceeding pending
or, to the knowledge of the Company, threatened against the Company or any Subsidiary, before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable possibility of an adverse decision which could materially adversely affect
the business, condition (financial or otherwise), operations, performance, properties or prospects of the Company or which challenges
the validity of any Transaction Agreements.


 


9            Compliance
with ERISA and other Benefit Plans.


 


(a)          Each
member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect
to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of
the Code in respect of any Plan, (ii) failed to make any required contribution or payment to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which as resulted or could result
in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA.


 


(b)          The
benefit plans not covered under clause (a) above (including profit sharing, deferred compensation, stock option, employee stock
purchase, bonus, retirement, health or insurance plans, collectively the “ Benefit Plans”) relating to the employees
of the Company are duly registered where required by, and are in good standing in all material respects under, all applicable
laws. All required employer and employee contributions and premiums under the Benefit Plans to the date hereof have been made,
the respective fund or funds established under the Benefit Plans are funded in accordance with applicable laws, and no past service
funding liabilities exist thereunder.


 


(c)          No
Benefit Plans have any unfunded liabilities, either on a “going concern” or “winding up” basis and determined
in accordance with all applicable laws and actuarial practices and using actuarial assumptions and methods that are reasonable
in the circumstances. No event has occurred and no condition exists with respect to any Benefit Plans that has resulted or could
reasonably be expected to result in any pension plan having its registration revoked or wound up (in whole or in part) or refused
for the purposes of any applicable laws or being placed under the administration of any relevant pension benefits regulatory authority
or being required to pay any taxes or penalties (in any material amounts) under any applicable laws.


 


10          Environmental
Matters. The costs and liabilities associated with Environmental Laws (including the cost of compliance therewith) are unlikely
to have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or
prospects of the Company or any Subsidiary. Each of the Company and the Subsidiaries conducts its businesses in compliance in
all material respects with all applicable Environmental Laws.


 




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11          Taxes.
All United States federal, state, county, municipality, local or foreign income tax returns and all other material tax returns
(including foreign tax returns) which are required to be filed by or on behalf of the Company and each Subsidiary have been filed
and all material taxes due pursuant to such returns or pursuant to any assessment received by the Company and each Subsidiary
have been paid except those being disputed in good faith and for which adequate reserves have been established. The charges, accruals
and reserves on the books of the Company and each Subsidiary in respect of taxes and other governmental charges have been established
in accordance with GAAP.


 


12          Investments,
Joint Ventures. Other than as set forth in the Company’s public filings, or in Schedule 4.12, the Company has
no Subsidiaries or other direct or indirect Investment in any Person, and the Company is not a party to any partnership, management,
shareholders’ or joint venture or similar agreement.


 


13          Not
an Investment Company. Neither the Company nor any Subsidiary is an “Investment Company” within the meaning of
Investment Company Act of 1940, as amended.


 


14          Full
Disclosure. The information heretofore furnished by the Company to Purchaser for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company or any Subsidiary
to Purchaser will not (in each case taken together and on the date as of which such information is furnished), contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they are made, not misleading.


 


15          No
Solicitation; No Integration with Other Offerings. No form of general solicitation or general advertising was used by the
Company or, to the best of its actual knowledge, any other Person acting on behalf of the Company, in connection with the offer
and sale of the Securities. Neither the Company, nor, to its knowledge, any Person acting on behalf of the Company, has, either
directly or indirectly, sold or offered for sale to any Person (other than Purchaser) any of the Securities or, within the six
months prior to the date hereof, any other similar security of the Company except as contemplated by this Agreement, and the Company
represents that neither itself nor any Person authorized to act on its behalf (except that the Company makes no representation
as to Purchaser and their Affiliates) will sell or offer for sale any such security to, or solicit any offers to buy any such
security from, or otherwise approach or negotiate in respect thereof with, any Person or Persons so as thereby to cause the issuance
or sale of any of the Securities to be in violation of any of the provisions of Section 5 of the Securities Act. The issuance
of the Securities to Purchaser will not be integrated with any other issuance of the Company’s securities (past, current
or future) which requires stockholder approval.


 


16          Permits.
(a) Each of the Company and its Subsidiaries has all material Permits; (b) all such Permits are in full force and effect, and
each of the Company and its Subsidiaries has fulfilled and performed all material obligations with respect to such Permits; (c)
no event has occurred which allows, or after notice of lapse of time would allow, revocation or termination by the issuer thereof
or which results in any other material impairment of the rights of the holder of any such Permit; and (d) the Company has no reason
to believe that any governmental body or agency is considering limiting, suspending or revoking any such Permit.


 




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17          Leases.
Neither the Company nor any Subsidiary is a party to any capital lease obligation with a value greater than $100,000 or to any
operating lease with an aggregate annual rental greater than $100,000 during the life of such lease.


 


18          Absence
of Any Undisclosed Liabilities or Capital Calls. There are no liabilities of the Company or any Subsidiary of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or
set of circumstances which would reasonably be expected to result in such a liability, other than (i) those liabilities provided
for in the financial statements delivered pursuant to Section 4.7 and (ii) other undisclosed liabilities which, individually or
in the aggregate, would not have a Material Adverse Effect.


 


19          Public
Utility Holding Company. Neither the Company nor any Subsidiary is, or will be upon issuance and sale of the Securities and
the use of the proceeds described herein, subject to regulation under the Public Utility Holding Company Act of 1935, as amended,
the Federal Power Act, the Interstate Commerce Act or to any federal or state statute or regulation limiting its ability to issue
and perform its obligations under any Transaction Agreement.


 


20          Intellectual
Property Rights. Each of the Company and its Subsidiaries owns, or is licensed under, and has the rights to use, all material
patents, trademarks, trade names, copyrights, technology, know-how and processes (collectively, “ Intellectual Property”)
used in, or necessary for the conduct of its business; no claims have been asserted by any Person to the use of any such Intellectual
Property or challenging or questioning the validity or effectiveness of any license or agreement related thereto. To the best
of Company’s and its Subsidiaries’ knowledge, there is no valid basis for any such claim and the use of such Intellectual
Property by the Company and its Subsidiaries will not infringe upon the rights of any Person.


 


21          Insurance.
The Company and its Subsidiaries maintain, with financially sound and reputable insurance companies, insurance in at least such
amounts and against such risks such that any uninsured loss would not have a Material Adverse Effect. All insurance coverages
of the Company and its Subsidiaries are in full force and effect and there are no past due premiums in respect of any such insurance.


 


22          Title
to Properties. The Company and its Subsidiaries have good and marketable title to all their respective properties free and
clear of all Liens.


 


23          Internal
Accounting Controls. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient,
in the judgment of the Company’s Board of Directors, to provide reasonable assurance that (i) transactions are executed
in accordance with managements’ general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.


 




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24         
Intentionally Omitted .


 


25          Foreign
Practices. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any employee or agent of
the Company or any Subsidiary has made any payments of funds of the Company or Subsidiary, or received or retained any funds,
in each case in violation of any law, rule or regulation.


 


26          Intentionally
Omitted.


 


ARTICLE 5.    REPRESENTATIONS
AND WARRANTIES OF PURCHASER


 


1          Purchaser.
Purchaser hereby represents and warrants to the Company that:


 


(a)          Purchaser
is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act and the Securities to be acquired
by it pursuant to this Agreement are being acquired for its own account and, as of the date hereof, not with a view toward, or
for sale in connection with, any distribution thereof except in compliance with applicable United States federal and state securities
law; provided that the disposition of Purchaser’s property shall at all times be and remain within its control;


 


(b)          the
execution, delivery and performance of this Agreement and the purchase of the Securities pursuant thereto are within Purchaser’s
corporate or partnership powers, as applicable, and have been duly and validly authorized by all requisite corporate or partnership
action;


 


(c)          this
Agreement has been duly executed and delivered by Purchaser;


 


(d)          the
execution and delivery by Purchaser of the Transaction Agreements to which it is a party does not, and the consummation of the
transactions contemplated hereby and thereby will not, contravene or constitute a default under or violation of (i) any provision
of applicable law or regulation, or (ii) any agreement, judgment, injunction, order, decree or other instrument binding upon Purchaser;


 


(e)          Purchaser
understands that the Securities have not been registered under the Securities Act and may not be transferred or sold except as
specified in this Agreement or the remaining Transaction Agreements;


 




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(f)          this
Agreement constitutes a valid and binding agreement of Purchaser enforceable in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency or similar laws affecting the enforceability of creditors rights generally and (ii) equitable principles
of general applicability;


 


(g)          Purchaser
has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of
its investment in the Securities and Purchaser is capable of bearing the economic risks of such investment;


 


(h)          Purchaser
is knowledgeable, sophisticated and experienced in business and financial matters; Purchaser has previously invested in securities
similar to the Securities and fully understands the limitations on transfer described herein; Purchaser has been afforded access
to information about the Company and the financial condition, results of operations, property, management and prospects of the
Company sufficient to enable it to evaluate its investment in the Securities; Purchaser has been afforded the opportunity to ask
such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms
and conditions of the offering of the Securities and the merits and the risks of investing in the Securities; and Purchaser has
been afforded the opportunity to obtain such additional information which the Company possesses or can acquire that is necessary
to verify the accuracy and completeness of the information given to Purchaser concerning the Company. The foregoing does not in
any way relieve the Company of its representations and other undertakings hereunder, and shall not limit Purchaser’s ability
to rely thereon;


 


(i)          no
part of the source of funds used by Purchaser to acquire the Securities constitutes assets allocated to any separate account maintained
by Purchaser in which any employee benefit plan (or its related trust) has any interest; and


 


(j)          Purchaser
is a corporation organized under the laws of Bermuda.


 


ARTICLE 6.    CONDITIONS
PRECEDENT TO PURCHASE OF SECURITIES


 


1          Conditions
Precedent to Purchaser’s Obligations to Purchase. The obligation of Purchaser hereunder to purchase the Senior Convertible
Note and Warrants at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions,
provided that these conditions are for Purchaser’s sole benefit and may be waived by Purchaser at any time in its sole discretion:


 


(a)          The
Company shall have duly executed this Agreement, and all other appropriate financing statements, and delivered the same to Purchaser;


 


(b)          The
Company shall have delivered to Purchaser duly executed certificates representing the Senior Convertible Note and Warrant in accordance
with Section 2.1 hereof;


 




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(c)          The
Company shall have delivered the Solvency Certificate;


 


(d)          The
representations and warranties of the Company contained in each Transaction Agreement shall be true and correct in all material
respects as of the date when made and as of the Closing Date as though made at such time (except for representations and warranties
that speak as of a specified date) and the Company shall have performed, satisfied and complied with all covenants, agreements
and conditions required by such Transaction Agreements to be performed, satisfied or complied with by it at or prior to the Closing
Date. Purchaser shall have received an Officer’s Certificate executed by the chief executive officer of the Company, dated
as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser, including
but not limited to certificates with respect to the Company Corporate Documents, resolutions relating to the transactions contemplated
hereby and the incumbencies of certain officers and Directors of the Company. The form of such certificate is attached hereto
as Exhibit D;


 


(e)          The
Company shall have received all governmental, Board of Directors, shareholders and third party consents and approvals necessary
or desirable in connection with the issuance and sale of the Securities and the consummation of the transactions contemplated
by the Transaction Agreements;


 


(f)          All
applicable waiting periods in respect to the issuance and sale of the Securities shall have expired without any action having
been taken by any competent authority that could restrain, prevent or impose any materially adverse conditions thereon or that
could seek or threaten any of the foregoing;


 


(g)          No
law or regulation shall have been imposed or enacted that, in the judgment of Purchaser, could adversely affect the transactions
set forth herein or in the other Transaction Agreements, and no law or regulation shall have been proposed that in the reasonable
judgment of Purchaser could reasonably have any such effect;


 


(h)          omitted


 


(i)          All
fees and expenses due and payable by the Company on or prior to the Closing Date shall have been paid;


 


(j)          The
Company Corporate Documents and the Subsidiary Corporate Documents, if any, shall be in full force and effect and no term or condition
thereof shall have been amended, waived or otherwise modified without the prior written consent of Purchaser;


 


(k)          There
shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties
or prospects of the Company or any Subsidiary since January 1, 2012;


 




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(l)          There
shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator
or governmental instrumentality that challenges the validity of or purports to affect this Agreement or any other Transaction
Agreement, or other transaction contemplated hereby or thereby or that could reasonably be expected to have a Material Adverse
Effect, or any material adverse effect on the enforceability of the Transaction Agreements or the Securities or the rights of
the holders of the Securities or Purchaser hereunder;


 


(m)          Purchaser
shall have confirmed the receipt of the Senior Convertible Note and Warrant to be issued, duly executed by the Company in the
denominations and registered in the name of Purchaser;


 


(n)          There
shall not have occurred any disruption or adverse change in the financial or capital markets generally, or in the market for the
Common Stock (including but not limited to any suspension or delisting), which Purchaser reasonably deems material in connection
with the purchase of the Securities;


 


(o)          Immediately
before and after the Closing Date, no Default or Event of Default shall have occurred and be continuing;


 


(p)          
Purchaser shall have received all other opinions, resolutions, certificates, instruments, agreements or other documents as they
shall reasonably request;


 


2          Conditions
to the Company’s Obligations. The obligations of the Company to issue and sell the Securities to Purchaser pursuant
to this Agreement are subject to the satisfaction, at or prior to any Closing Date, of the following conditions:


 


(a)          The
representations and warranties of Purchaser contained herein shall be true and correct in all material respects on the Closing
Date and Purchaser shall have performed and complied in all material respects with all agreements required by this Agreement to
be performed or complied with by Purchaser at or prior to the Closing Date;


 


(b)          The
issue and sale of the Securities by the Company shall not be prohibited by any applicable law, court order or governmental regulation;


 


(c)          Receipt
by the Company of duly executed counterparts of this Agreement signed by Purchaser;


 


(d)          The
Company shall have received payment of Purchase Price, less the Expense Reimbursement Fee.


 




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ARTICLE 7.    AFFIRMATIVE
COVENANTS


 


The Company hereby
agrees that, from and after the date hereof for so long as any Senior Convertible Note and Warrant remain outstanding and for
the benefit of Purchaser:


 


1          
Information. The Company will deliver, or make available to each holder of the Senior Convertible Note and Warrants :


 


(a)          within
30 days of the end of each fiscal quarter copies of the Company’s balance sheet and income statements all as prepared in
accordance with GAAP;


 


(b)          simultaneously
with the delivery of each item referred to in clause (a) above, a certificate from the chief financial officer of the Company
stating that no Default or Event of Default has occurred and is continuing, or, if as of the date of such delivery a Default shall
have occurred and be continuing, a certificate from the Company setting forth the details of such Default or Event of Default
and the action which the Company is taking or proposes to take with respect thereto;


 


(c)          within
two (2) days after any officer of the Company obtains knowledge of a Default or Event of Default, or that any Person has given
any notice or taken any action with respect to a claimed Default hereunder, a certificate of the chief financial officer of the
Company setting forth the details thereof and the action which the Company is taking or proposed to take with respect thereto;


 


(d)          promptly
upon the mailing thereof to the shareholders of the Company generally, copies of all financial statements, reports and proxy statements
so mailed and any other document generally distributed to shareholders;


 


(e)          at
least two (2) Business Days prior to the consummation of any Financing or other event requiring a repayment of the Senior Convertible
Note under Section 3.4, notice thereof together with a summary of all material terms thereof and copies of all documents and instruments
associated therewith;


 


(f)          notice
promptly upon the occurrence of any event by which the Reserved Amount becomes less than the sum of (i) 1.5 times the maximum
number of Conversion Shares issuable pursuant to the Transaction Agreements; and


 


(g)          promptly
following the commencement thereof, notice and a description in reasonable detail of any litigation or proceeding to which the
Company or any Subsidiary is a party in which the amount involved is $75,000 or more and not covered by insurance or in which
injunctive or similar relief is sought.


 


2          Payment
of Obligations. The Company will, and will cause each Subsidiary to, pay and discharge, at or before maturity, all their respective
material obligations, including, without limitation, tax liabilities, except where the same may be contested in good faith by
appropriate proceedings and will maintain, in accordance with GAAP, appropriate reserves for the accrual of any of the same.


 




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3          
Maintenance of Property; Insurance. The Company will, and will cause each Subsidiary to, keep all property useful and necessary
in its business in good working order and condition, ordinary wear and tear excepted. In addition, the Company and each Subsidiary
will maintain insurance in at least such amounts and against such risks as it has insured against as of the Closing Date.


 


4          
Maintenance of Existence. The Company will, and will cause each Subsidiary to, continue to engage in business of the same
general type as now conducted by the Company and such Subsidiaries, and will preserve, renew and keep in full force and effect
its respective corporate existence and their respective material rights, privileges and franchises necessary or desirable in the
normal conduct of business.


 


5          
Compliance with Laws . The Company will, and will cause each Subsidiary to, comply, in all material respects, with all
federal, state, municipal, local or foreign applicable laws, ordinances, rules, regulations, municipal by-laws, codes and requirements
of governmental authorities (including, without limitation, Environmental Laws and ERISA and the rules and regulations thereunder)
except (i) where compliance therewith is contested in good faith by appropriate proceedings or (ii) where non-compliance therewith
could not reasonably be expected, in the aggregate, to have a material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Company or such Subsidiary.


 


6          Inspection
of Property, Books and Records. The Company will, and will cause each Subsidiary to, keep proper books of record and account
in which full, true and correct entries shall be made of all dealings and transactions in relation to their respective businesses
and activities; and will permit, during normal business hours, Purchaser’ Representative or an affiliate thereof, as representatives
of Purchaser, to visit and inspect any of their respective properties, upon reasonable prior notice, to examine and make abstracts
from any of their respective books and records and to discuss their respective affairs, finances and accounts with their respective
executive officers and independent public accountants (and by this provision the Company authorizes its independent public accountants
to disclose and discuss with Purchaser the affairs, finances and accounts of the Company and its Subsidiaries in the presence
of a representative of the Company; provided, however, that such discussions will not result in any unreasonable expense to the
Company, without Company consent), all at such reasonable times.


 


7          Investment
Company Act. The Company will not be or become an open-end investment trust, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended.


 


8          
Use of Proceeds. The proceeds from the issuance and sale of the Senior Convertible Note by the Company shall be used as
working capital. None of the proceeds from the issuance and sale of the Senior Convertible Note by the Company pursuant to this
Agreement will be used directly or indirectly for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any “margin stock” within the meaning of Regulation G of the Board of Governors of the Federal Reserve System.


 




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9            Compliance
with Terms and Conditions of Material Contracts. The Company will, and will cause each Subsidiary to, comply, in all respects,
with all terms and conditions of all material contracts to which it is subject.


 


10          Omitted


 


11          Transfer
Agent Instructions. Upon receipt of a Notice of Conversion the Company shall immediately direct the Company's transfer agent
to issue certificates, registered in the name of Purchaser or its nominee, for the Conversion Shares, in such amounts as specified
from time to time by Purchaser to the Company upon conversion of the Senior Convertible Note. Upon conversion of any Senior Convertible
Note in accordance with their terms and/or exercise of any Warrants in accordance with their terms, the Company will use its best
lawful efforts to cause its transfer agent to, issue one or more certificates representing shares of Common Stock in such name
or names and in such denominations specified by a Purchaser in a Notice of Conversion or Exercise. The Company further warrants
and agrees that no instructions other than these instructions have been or will be given to its transfer agent. Nothing in this
Section 7.11 shall affect in any way a Purchaser’s obligation to comply with all securities laws applicable to Purchaser
upon resale of such shares of Common Stock, including any prospectus delivery requirements.


 


12          Omitted
.


 


13          Form
D; Blue Sky Laws. The Company agrees to file a “Form D” with respect to the Securities as required under Regulation
D of the Securities Act and to provide a copy thereof to the Purchaser promptly after such filing. The Company shall, on or before
the Closing Date, take such action as the Company shall reasonably determine is necessary to qualify the Securities for sale to
Purchaser at the Closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of
the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken
to Purchaser on or prior to the Closing Date.


 


ARTICLE 8.    NEGATIVE
COVENANTS


 


The Company hereby
agrees that after the date hereof for so long as any Senior Convertible Note remains outstanding and for the benefit of Purchaser:


 




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1            Limitations
on Debt or Other Liabilities. Neither the Company nor any Subsidiary will create, incur, assume or suffer to exist (at any
time after the Closing Date and until repayment or conversion of the Senior Convertible Note , after giving effect to the application
of the proceeds of the issuance of the Securities) (i) any Debt except (x) Debt incurred in a Permitted Financing, (y)
Debt incurred in connection with equipment leases to which the Company or its Subsidiaries are a party incurred in the ordinary
course of business; and (z) Debt incurred in connection with trade accounts payable, imbalances and refunds arising in the ordinary
course of business and (ii) any equity securities (including Derivative Securities) (other than those securities that are issuable
(x) under or pursuant to stock option plans, warrants or other rights programs that exist as of the date hereof, (z) in connection
with the acquisition (including by merger) of a business or of assets otherwise permitted under this Agreement), unless the Company
complies with the mandatory prepayment terms of Section 3.4(b) hereof.


 


2            Transactions
with Affiliates. The Company and each Subsidiary will not, directly or indirectly, pay any funds to or for the account of,
make any investment (whether by acquisition or stock or indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, and Debt, or otherwise) in, lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or effect any transaction in connection with any joint enterprise
or other joint arrangement with, any Affiliate, except, (1) pursuant to those agreements specifically identified in the Company’s
public filings, or on Schedule 8.2 attached hereto (with a copy of such agreements annexed to such Schedule 8.2)
and (2) on terms to the Company or such Subsidiary no less favorable than terms that could be obtained by the Company or such
Subsidiary from a Person that is not an Affiliate of the Company upon negotiation at arms’ length, as determined in good
faith by the Board of Directors of the Company; provided that no determination of the Board of Directors shall be required
with respect to any such transactions entered into in the ordinary course of business.


 


3            Merger
or Consolidation. The Company will not, unless consented to by Purchaser, in a single transaction or a series of related transactions
(i) consolidate with or merge with or into any other Person, or (ii) permit any other Person to consolidate with or merge into
it, unless the Company shall be the survivor of such merger or consolidation and (x) immediately before and immediately after
given effect to such transaction (including any indebtedness incurred or anticipated to be incurred in connection with the transaction),
no Default or Event of Default shall have occurred and be continuing; and (y) the Company has delivered to Purchaser an Officer’s
Certificate stating that such consolidation, merger or transfer complies with this Agreement, and that all conditions precedent
in this Agreement relating to such transaction have been satisfied.


 


4            Limitation
on Asset Sales. Neither the Company nor any Subsidiary will consummate an Asset Sale of material assets of the Company or
any Subsidiary without the prior written consent of Purchaser, which consent shall not be unreasonably withheld. As used herein,
“Asset Sale” means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or
dispositions) or sales of capital stock of a Subsidiary (other than directors’ qualifying shares), property or other assets
(each referred to for the purpose of this definition as a “disposition”), including any disposition by means of a
merger, consolidation or similar transaction other than a disposition of property or assets at fair market value in the ordinary
course of business.


 




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5            Restrictions
on Certain Amendments. Neither the Company nor any Subsidiary will waive any provision of, amend, or suffer to be amended,
any provision of such entity’s existing Debt, any Company Corporate Document or Subsidiary Corporate Document if such amendment,
in the Company’s reasonable judgment, would materially adversely affect Purchaser or the holders of the Securities without
the prior written consent of Purchaser.


 


6            Omitted


 


7            Limitation
on Stock Repurchases. Except for any redemption, repurchase or other acquisition of Outstanding Debt or as otherwise set forth
in the Senior Convertible Note, the Company shall not, without the written consent of the Majority Holders, redeem, repurchase
or otherwise acquire (whether for cash or in exchange for property or other securities or otherwise) any shares of capital stock
of the Company or any warrants, rights or options to purchase or acquire any such shares.


 


ARTICLE 9.    RESTRICTIVE
LEGENDS


 


1            Restrictions
on Transfer. From and after their respective dates of issuance, none of the Securities shall be transferable except upon the
conditions specified in this Article IX, which conditions are intended to ensure compliance with the provisions of the Securities
Act in respect of the Transfer of any of such Securities or any interest therein. Purchaser will use its best efforts to cause
any proposed transferee of any Securities held by it to agree to take and hold such Securities subject to the provisions and upon
the conditions specified in this Article IX.


 


2            Legends.
The Conversion Shares shall be considered "legended" and/or "restricted" within the meaning of this Agreement
and the Transaction Agreements.


 


3            Notice
of Proposed Transfers. Prior to any proposed Transfer of the Securities (other than a Transfer (i) registered or exempt from
registration under the Securities Act, (ii) to an affiliate of a Purchaser which is an “accredited investor” within
the meaning of Rule 501(a) under the Securities Act, provided that any such transferee shall agree to be bound by the terms of
this Agreement, or (iii) to be made in reliance on Rule 144 under the Securities Act), the holder thereof shall give written notice
to the Company of such holder’s intention to effect such Transfer, setting forth the manner and circumstances of the proposed
Transfer, which shall be accompanied by (a) an opinion of counsel reasonably acceptable to the Company, confirming that such transfer
does not give rise to a violation of the Securities Act, (B) representation letters in form and substance reasonably satisfactory
to the Company to ensure compliance with the provisions of the Securities Act and (C) letters in form and substance reasonably
satisfactory to the Company from each such transferee stating such transferee’s agreement to be bound by the terms of this
Agreement. Such proposed Transfer may be effected only if the Company shall have received such notice of transfer, opinion of
counsel, representation letters and other letters referred to in the immediately preceding sentence, whereupon the holder of such
Securities shall be entitled to Transfer such Securities in accordance with the terms of the notice delivered by the holder to
the Company.


 




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ARTICLE 10 ADDITIONAL AGREEMENTS AMONG
THE PARTIES


 


1           
Liquidated Damages.


 


(a)          The
Company shall cause its transfer agent to, issue and deliver shares of Common Stock consistent with Section 7.11 hereof within
five (5) Trading Days of delivery of a Notice of Conversion (the “Deadline”) to Purchaser (or any party receiving
Securities by transfer from Purchaser) at the address of Purchaser set forth in the Notice of Conversion or Notice of Exercise,
as the case may be. The Company understands that a delay in the issuance of such certificates after the Deadline could result
in economic loss to Purchaser.


 


(b)          Without
in any way limiting Purchaser’s right to pursue other remedies, including actual damages and/or equitable relief, the Company
agrees that if delivery of the Conversion Shares is more than one (1) Business Day after the Deadline (other than a failure due
to the circumstances described in Section 4.3 of the Senior Convertible Note , which failure shall be governed by such Section)
the Company shall pay to Purchaser, as liquidated damages and not as a penalty, $500 for each $100,000 of Senior Convertible Note
then outstanding per day in cash, for each of the first ten (10) days beyond the Deadline, and $1,000 for each $100,000 of Senior
Convertible Note then outstanding per day in cash for each day thereafter that the Company fails to deliver such Common Stock.
Such cash amount shall be paid to Purchaser by the last day of the calendar week following the week in which it has accrued or,
at the option of Purchaser (by written notice to the Company by the first day of the week following the week in which it has accrued),
shall be added to the principal amount of the Senior Convertible Note (if then outstanding) payable to Purchaser, in which event
interest shall accrue thereon in accordance with the terms of the Senior Convertible Note and such additional principal amount
shall be convertible into Common Stock in accordance with the terms of the Senior Convertible Note .


 


2            Conversion
Notice. The Company agrees that, in addition to any other remedies which may be available to Purchaser, including, but not
limited to, the remedies available under Section 10.1, in the event the Company fails for any reason (other than as a result of
actions taken by a Purchaser in breach of this Agreement) to effect delivery to a Purchaser of certificates with or without restrictive
legends as contemplated by Article IX representing the shares of Common Stock on or prior to the Deadline after conversion of
any Senior Convertible Note , Purchaser will be entitled, if prior to the delivery of such certificates, to revoke the Notice
of Conversion, by delivering a notice to such effect to the Company whereupon the Company and Purchaser shall each be restored
to their respective positions immediately prior to delivery of such Notice of Conversion.


 




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3            Conversion
Limit. Notwithstanding the conversion rights under the Senior Convertible Note, unless Purchaser delivers a waiver in accordance
with the immediately following sentence, in no event shall Purchaser be entitled to convert any portion of the Senior Convertible
Note , in excess of that portion of the Senior Convertible Note , as applicable, of which the sum of (i) the number of shares
of Common Stock beneficially owned by Purchaser and its Affiliates (other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unconverted portion of the Senior Convertible Note or other Derivative Securities convertible
into or exchangeable for shares of Common Stock which contain a limitation similar to that set forth in this Section 10.3), and
(ii) the number of shares of Common Stock issuable upon the conversion of the portion of the Senior Convertible Note with respect
to which this determination is being made, would result in beneficial ownership by Purchaser and its Affiliates of more than 9.99%
of the outstanding shares of Common Stock. For purposes of Section 10.3(i) beneficial ownership shall be determined in accordance
with Rule 13d-3 of the Exchange Act and Regulations 13 D-G thereunder, except as otherwise provided in this Section 10.3. The
foregoing limitation shall not apply and shall be of no further force or effect (i) immediately preceding and upon the occurrence
of any voluntary or mandatory redemption or repayment transaction described herein or in the Senior Convertible Note, (ii) immediately
preceding and upon any Sale Event, (iii) on the Maturity Date or (iv) following the occurrence of any Event of Default which is
not cured for a period of ten (10) calendar days.


 


4            Conversion
Mechanics under Rule 144


 


(a)          The
Purchaser may convert any or all of the Senior Convertible Note at any time following the 181st day following the Closing
date pursuant to Rule 144 of the Act. Upon receipt by the Company of a Notice of Conversion, by transmission to the Company from
the Purchaser of the Notice of Conversion substantially in the form of Annex A attached hereto, the Company will instruct its
counsel to issue an omnibus opinion covering the resale of the Conversion Shares.


 


5            Omitted


 


ARTICLE 11 ADJUSTMENT OF FIXED PRICE


 


1            Reorganization
. The Conversion Price (the “Fixed Prices”) shall be adjusted, as applicable, as hereafter provided.


 


2            Share
Reorganization . If and whenever the Company shall:


 


(i)          subdivide
the outstanding shares of Common Stock into a greater number of shares;


 


(ii)         consolidate
the outstanding shares of Common Stock into a smaller number of shares;


 


(iii)        issue
Common Stock or securities convertible into or exchangeable for shares of Common Stock as a stock dividend to all or substantially
all the holders of Common Stock; or


 




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(iv)        make
a distribution on the outstanding Common Stock to all or substantially all the holders of Common Stock payable in Common Stock
or securities convertible into or exchangeable for Common Stock;


 


any of such events being herein called
a “Share Reorganization,” then in each such case the applicable Fixed Price shall be adjusted, effective immediately
after the record date at which the holders of Common Stock are determined for the purposes of the Share Reorganization or, if
no record date is fixed, the effective date of the Share Reorganization, by multiplying the applicable Fixed Price in effect on
such record or effective date, as the case may be, by a fraction of which:


 


(i)          the
numerator shall be the number of shares of Common Stock outstanding on such record or effective date (without giving effect to
the transaction); and


 


(II)        the
denominator shall be the number of shares of Common Stock outstanding after giving effect to such Share Reorganization, including,
in the case of a distribution of securities convertible into or exchangeable for shares of Common Stock, the number of shares
of Common Stock that would have been outstanding if such securities had been converted into or exchanged for Common Stock on such
record or effective date.


 


3           
Rights Offering. If and whenever the Company shall issue to all or substantially all the holders of Common Stock, rights,
options or warrants under which such holders are entitled, during a period expiring not more than 45 days after the record date
of such issue, to subscribe for or purchase Common Stock (or Derivative Securities), at a price per share (or, in the case of
securities convertible into or exchangeable for Common Stock, at an exchange or conversion price per share at the date of issue
of such securities) of less than 95% of the Market Price of the Common Stock on such record date (any such event being herein
called a “Rights Offering”), then in each such case the applicable Fixed Price shall be adjusted, effective immediately
after the record date at which holders of Common Stock are determined for the purposes of the Rights Offering, by multiplying
the applicable Fixed Price in effect on such record date by a fraction of which:


 


(v)         the
numerator shall be the sum of:


 


(i)         the
number of shares of Common Stock outstanding on such record date; and


 


(II)       a
number obtained by dividing:


 


(A)       either,


 


             (x)          the
product of the total number of shares of Common Stock so offered for subscription or purchase and the price at which such shares
are so offered, or


 




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          (y)          the
product of the maximum number of shares of Common Stock into or for which the convertible or exchangeable securities so offered
for subscription or purchase may be converted or exchanged and the conversion or exchange price of such securities, or, as the
case may be, by


 


(B)         the
Market Price of the Common Stock on such record date; and


 


(vi)        the
denominator shall be the sum of:


 


(i)          the
number of shares of Common Stock outstanding on such record date; and


 


(II)        the
number of shares of Common Stock so offered for subscription or purchase (or, in the case of Derivative Securities, the maximum
number of shares of Common Stock for or into which the securities so offered for subscription or purchase may be converted or
exchanged).


 


To the extent that such rights, options
or warrants are not exercised prior to the expiry time thereof, the applicable Fixed Price shall be readjusted effective immediately
after such expiry time to the applicable Fixed Price which would then have been in effect upon the number of shares of Common
Stock (or Derivative Securities) actually delivered upon the exercise of such rights, options or warrants.


 


4            Special
Distribution. If and whenever the Company shall issue or distribute to all or substantially all the holders of Common Stock:


 


(i)          shares
of the Company of any class, other than Common Stock;


 


(ii)         rights,
options or warrants; or


 


(iii)        any
other assets (excluding cash dividends and equivalent dividends in shares paid in lieu of cash dividends in the ordinary course);


 


and if such issuance or distribution does
not constitute a Share Reorganization or a Rights Offering (any such event being herein called a “Special Distribution”),
then in each such case the applicable Fixed Price shall be adjusted, effective immediately after the record date at which the
holders of Common Stock are determined for purposes of the Special Distribution, by multiplying the applicable Fixed Price in
effect on such record date by a fraction of which:


 


(i)          the
numerator shall be the difference between:


 


(A)         the
product of the number of shares of Common Stock outstanding on such record date and the Market Price of the Common Stock on such
date; and


 




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(B)         the
fair market value, as determined by the Directors (whose determination shall be conclusive), to the holders of Common Stock of
the shares, rights, options, warrants, evidences of indebtedness or other assets issued or distributed in the Special Distribution
(net of any consideration paid therefor by the holders of Common Stock), and


 


(ii)         the
denominator shall be the product of the number of shares of Common Stock outstanding on such record date and the Market Price
of the Common Stock on such date.


 


5           
Capital Reorganization. If and whenever there shall occur:


 


(i)          a
reclassification or redesignation of the shares of Common Stock or any change of the shares of Common Stock into other shares,
other than in a Share Reorganization;


 


(ii)         a
consolidation, merger or amalgamation of the Company with, or into another body corporate; or


 


(iii)        the
transfer of all or substantially all of the assets of the Company to another body corporate;


 


(any such event being herein called a
“Capital Reorganization”), then in each such case the holder who exercises the right to convert Senior Convertible
Note after the effective date of such Capital Reorganization shall be entitled to receive and shall accept, upon the exercise
of such right, in lieu of the number of shares of Common Stock to which such holder was theretofore entitled upon the exercise
of the conversion privilege, the aggregate number of shares or other securities or property of the Company or of the body corporate
resulting from such Capital Reorganization that such holder would have been entitled to receive as a result of such Capital Reorganization
if, on the effective date thereof, such holders had been the holder of the number of shares of Common Stock to which such holder
was theretofore entitled upon conversion; provided, however, that no such Capital Reorganization shall be consummated in effect
unless all necessary steps shall have been taken so that such holders shall thereafter be entitled to receive such number of shares
or other securities of the Company or of the body corporate resulting from such Capital Reorganization, subject to adjustment
thereafter in accordance with provisions the same, as nearly as may be possible, as those contained above.


 


6           
Adjustment Rules . The following rules and procedures shall be applicable to adjustments made in this Article XI:


 




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(a)          no
adjustment in the applicable Fixed Price shall be required unless such adjustment would result in a change of at least 1% in the
applicable Fixed Price then in effect, provided, however, that any adjustments which, but for the provisions of this clause would
otherwise have been required to be made, shall be carried forward and taken into account in any subsequent adjustment;


 


(b)          if
any event occurs of the type contemplated by the adjustment provisions of this Article XI but not expressly provided for by such
provisions, the Company will give notice of such event as provided herein, and the Company’s board of directors will make
an appropriate adjustment in the Fixed Price so that the rights of the holders of the applicable Security shall not be diminished
by such event; and


 


(c)          if
a dispute shall at any time arise with respect to any adjustment of the applicable Fixed Price, such dispute shall be conclusively
determined by a firm of independent chartered accountants selected by the Purchaser and any such determination shall be binding
upon the Company and Purchaser.


 


7           
Certificate as to Adjustment. The Company shall from time to time promptly after the occurrence of any event which requires
an adjustment in the applicable Fixed Price deliver to Purchaser a certificate specifying the nature of the event requiring the
adjustment, the amount of the adjustment necessitated thereby, the applicable Fixed Price after giving effect to such adjustment
and setting forth, in reasonable detail, the method of calculation and the facts upon which such calculation is based.


 


8           
Notice to Holders . If the Company shall fix a record date for:


 


(a)          any
Share Reorganization (other than the subdivision of outstanding Common Stock into a greater number of shares or the consolidation
of outstanding Common Stock into a smaller number of shares),


 


(b)          any
Rights Offering,


 


(c)          any
Special Distribution,


 


(d)          any
Capital Reorganization (other than a reclassification or redesignation of the Common Stock into other shares),


 


(e)          Sale
Event; or


 


(f)          any
cash dividend,


 


the Company shall, not less than 10 days
prior to such record date or, if no record date is fixed, prior to the effective date of such event, give to Purchaser notice
of the particulars of the proposed event or the extent that such particulars have been determined at the time of giving the notice.


 




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ARTICLE 12 EVENTS OF DEFAULT


 


1            Events
of Default. If one or more of the following events (each an “Event of Default”) shall have occurred and be continuing:


 


(a)          failure
by the Company to pay or repay when due, all or any part of the principal on any of the Senior Convertible Note (whether by virtue
of the agreements specified in this Agreement or the Senior Convertible Note );


 


(b)          failure
by the Company to pay (i) within five (5) Business Days of the due date thereof any interest on any Senior Convertible Note or
(ii) within five (5) Business Days following the delivery of notice to the Company of any fees or any other amount payable (not
otherwise referred to in (a) above or this clause (b)) by the Company under this Agreement or any other Transaction Agreement;


 


(c)          failure
by the Company to timely comply with the requirements of Section 7.11 or 10.1 hereof, which failure is not cured within five (5)
Business Days of such failure;


 


(d)          failure
on the part of the Company to observe or perform any covenant contained in Section 7.10 or Article VIII of this Agreement;


 


(e)          failure
on the part of the Company to observe or perform any covenant or agreement contained in any Transaction Agreement (other than
those covered by clauses (a), (b), (c), (d) or (e) above) for 30 days from the date of such occurrence;


 


(f)          the
Company or any Subsidiary has commenced a voluntary case or other proceeding seeking liquidation, winding-up, reorganization or
other relief with respect to itself or its debts under any bankruptcy, insolvency, moratorium or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial
part of its property, or has consented to any such relief or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or has made a general assignment for the benefit of creditors, or
has failed generally to pay its debts as they become due, or has taken any corporate action to authorize any of the foregoing;


 


(g)          an
involuntary case or other proceeding has been commenced against the Company or any Subsidiary seeking liquidation, winding-up,
reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency, moratorium or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days, or an order for relief has been entered against the Company or any Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;


 




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(h)          default
in any provision (including payment) or any agreement governing the terms of any Debt of the Company or any Subsidiary in excess
of $50,000, which has not been cured within any applicable period of grace associated therewith;


 


(i)          judgments
or orders, other than Outstanding Debt for the payment of money which in the aggregate at any one time exceed $100,000 and are
not covered by insurance have been rendered against the Company or any Subsidiary by a court of competent jurisdiction and such
judgments or orders shall continue unsatisfied and unstayed for a period of 60 days; or


 


(j)          any
representation, warranty, certification or statement made by the Company in any Transaction Agreement or which is contained in
any certificate, document or financial or other statement furnished at any time under or in connection with any Transaction Agreement
shall prove to have been untrue in any material respect when made.


 


then, and in every such occurrence, Purchaser
may, with respect to an Event of Default specified in paragraphs (a) or (b), and the Majority Holders may, with respect to any
other Event of Default, by notice to the Company, declare the Senior Convertible Note to be, and the Senior Convertible Note shall
thereon become immediately due and payable; provided that in the case of any of the Events of Default specified in paragraph
(j) or (k) above with respect to the Company or any Subsidiary, then, without any notice to the Company or any other act by Purchaser,
the entire amount of the Senior Convertible Note shall become immediately due and payable, provided, further, if
any Event of Default has occurred and is continuing, and irrespective of whether any Senior Convertible Note has been declared
immediately due and payable hereunder, any Purchaser of Senior Convertible Note may proceed to protect and enforce the rights
of Purchaser by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any
agreement contained herein or in any Senior Convertible Note , or for an injunction against a violation of any of the terms hereof
or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise, and provided further,
in the case of any Event of Default, the amount declared due and payable on the Senior Convertible Note shall be the Formula Price
thereof.


 


2            Powers
and Remedies Cumulative. No right or remedy herein conferred upon or reserved to Purchaser is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy. Every power and remedy given by the Senior Convertible Note or by law may be exercised from time to time, and
as often as shall be deemed expedient, by Purchaser.


 




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ARTICLE 13.     
MISCELLANEOUS


 


1            Notices.
All notices, demands and other communications to any party hereunder shall be in writing (including facsimile, email or similar
writing) and shall be given to such party at its address set forth on the signature pages hereof, or such other address as such
party may hereafter specify for the purpose to the other parties. Each such notice, demand or other communication shall be effective
(i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified on the signature page hereof, (ii)
if given by mail, four days after such communication is deposited in the mail with first class postage prepaid, addressed as aforesaid
or (iii) if given by any other means, when delivered at the address specified in or pursuant to this Section.


 


2            No
Waivers; Amendments.


 


(a)          No
failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.


 


(b)          Any
provision of this Agreement may be amended, supplemented or waived if, but only if, such amendment, supplement or waiver is in
writing and is signed by the Company and the Majority Holders; provided, that without the consent of each holder of any
Senior Convertible Note affected thereby, an amendment or waiver may not (a) reduce the aggregate principal amount of Senior Convertible
Note whose holders must consent to an amendment or waiver, (b) reduce the rate or extend the time for payment of interest on any
Senior Convertible Note , (c) reduce the principal amount of or extend the stated maturity of any Senior Convertible Note or (d)
make any Senior Convertible Note payable in money or property other than as stated in such Senior Convertible Note . In determining
whether the holders of the requisite principal amount of Senior Convertible Note have concurred in any direction, consent, or
waiver as provided in any Transaction Agreement, Senior Convertible Note which are owned by the Company or any other obligor on
or guarantor of the Senior Convertible Note , or by any Person Controlling, Controlled by, or under common Control with any of
the foregoing, shall be disregarded and deemed not to be outstanding for the purpose of any such determination; and provided
further that no such amendment, supplement or waiver which affects the rights of Purchaser and their affiliates otherwise
than solely in their capacities as holders of Senior Convertible Note shall be effective with respect to them without their prior
written consent.


 




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3            Indemnification
.


 


(c)          The
Company agrees to indemnify and hold harmless Purchaser, its Affiliates, and each Person, if any, who controls Purchaser, or any
of its Affiliates, within the meaning of the Securities Act or the Exchange Act (each, a “Controlling Person”), and
the respective partners, agents, employees, officers and Directors of Purchaser, their Affiliates and any such Controlling Person
(each an “Indemnified Party”) and collectively, the “Indemnified Parties”), from and against any and all
losses, claims, damages, liabilities and expenses (including, without limitation and as incurred, reasonable costs of investigating,
preparing or defending any such claim or action, whether or not such Indemnified Party is a party thereto, provided that the Company
shall not be obligated to advance such costs to any Indemnified Party other than Purchaser unless it has received from such Indemnified
Party an undertaking to repay to the Company the costs so advanced if it should be determined by final judgment of a court of
competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder with respect to such costs) which
may be incurred by such Indemnified Party in connection with any investigative, administrative or judicial proceeding brought
or threatened that relates to or arises out of, or is in connection with any activities contemplated by any Transaction Agreement
or any other services rendered in connection herewith; provided that the Company will not be responsible for any claims,
liabilities, losses, damages or expenses that are determined by final judgment of a court of competent jurisdiction to result
from such Indemnified Party’s gross negligence, willful misconduct or bad faith.


 


(d)          If
any action shall be brought against an Indemnified Party with respect to which indemnity may be sought against the Company under
this Agreement, such Indemnified Party shall promptly notify the Company in writing and the Company, at its option, may, assume
the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Party and payment of all
reasonable fees and expenses. The failure to so notify the Company shall not affect any obligations the Company may have to such
Indemnified Party under this Agreement or otherwise unless the Company is materially adversely affected by such failure. Such
Indemnified Party shall have the right to employ separate counsel in such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the Company has failed to assume
the defense and employ counsel or (ii) the named parties to any such action (including any impleaded parties) include such Indemnified
Party and the Company, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the Company, in which case, if such Indemnified Party
notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, the Company shall not
have the right to assume the defense of such action or proceeding on behalf of such Indemnified Party, provided, however,
that the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be responsible hereunder
for the reasonable fees and expenses of more than one such firm of separate counsel, in addition to any local counsel, which counsel
shall be designated by Purchaser. The Company shall not be liable for any settlement of any such action effected without the written
consent of the Company (which shall not be unreasonably withheld) and the Company agrees to indemnify and hold harmless each Indemnified
Party from and against any loss or liability by reason of settlement of any action effected with the consent of the Company. In
addition, the Company will not, without the prior written consent of Purchaser, settle or compromise or consent to the entry of
any judgment in or otherwise seek to terminate any pending or threatened action, claim, suit or proceeding in respect to which
indemnification or contribution may be sought hereunder (whether or not any Indemnified Party is a party thereto) unless such
settlement, compromise, consent or termination includes an express unconditional release of Purchaser and the other Indemnified
Parties, satisfactory in form and substance to Purchaser, from all liability arising out of such action, claim, suit or proceeding.


 




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(e)          If
for any reason the foregoing indemnity is unavailable (otherwise than pursuant to the express terms of such indemnity) to an Indemnified
Party or insufficient to hold an Indemnified Party harmless, then in lieu of indemnifying such Indemnified Party, the Company
shall contribute to the amount paid or payable by such Indemnified Party as a result of such claims, liabilities, losses, damages,
or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand
and by Purchaser on the other from the transactions contemplated by this Agreement or (ii) if the allocation provided by clause
(i) is not permitted under applicable law, in such proportion as is appropriate to reflect not only the relative benefits received
by the Company on the one hand and Purchaser on the other, but also the relative fault of the Company and Purchaser as well as
any other relevant equitable considerations. Notwithstanding the provisions of this Section 13.3, the aggregate contribution of
all Indemnified Parties shall not exceed the amount of interest and fees actually received by Purchaser pursuant to this Agreement.
It is hereby further agreed that the relative benefits to the Company on the one hand and Purchaser on the other with respect
to the transactions contemplated hereby shall be determined by reference to, among other things, whether any untrue or alleged
untrue statement of material fact or the omission or alleged omission to state a material fact related to information supplied
by the Company or by Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.


 


(f)          The
indemnification, contribution and expense reimbursement obligations set forth in this Section 13.3 (i) shall be in addition to
any liability the Company may have to any Indemnified Party at common law or otherwise; (ii) shall survive the termination of
this Agreement and the other Transaction Agreements and the payment in full of the Senior Convertible Note and (iii) shall remain
operative and in full force and effect regardless of any investigation made by or on behalf of Purchaser or any other Indemnified
Party.


 




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4            Expenses:
Documents, Due Diligence, Legal. The Company agrees to pay to Global Capital Advisors, Inc. (“GCA”), a fee of
$15,000.00 (the “Expense Reimbursement Fee”) in full satisfaction of all obligations of the Company to Purchaser and
its agents in connection with the negotiation and preparation of the Transaction Agreements, relevant due diligence, and fees
and disbursements of legal counsel. The Company has prepaid $7,500.00 of the fee with the remaining balance of $7,500.00 due at
closing. In addition, the Company agrees to pay any and all stamp, transfer and other similar taxes, assessments or charges payable
in connection with the execution and delivery of any Transaction Agreement or the issuance of the Securities to Purchaser, excluding
their assigns.


 


5            Payment.
The Company agrees that, so long as Purchaser shall own any Senior Convertible Note purchased by it from the Company hereunder,
the Company will make payments to Purchaser of all amounts due thereon by wire transfer by 4:00 P.M. (E.S.T.).


 


6            Successors
and Assigns. This Agreement shall be binding upon the Company and upon Purchaser and its respective successors and assigns;
provided that the Company shall not assign or otherwise transfer its rights or obligations under this Agreement to any
other Person without the prior written consent of the Majority Holders. All provisions hereunder purporting to give rights to
Purchaser and its affiliates or to holders of Securities are for the express benefit of such Persons and their successors and
assigns.


 


7            Brokers.
Except for a fee payable to Moody Capital solutions in the amount of $15,682.50, the Company represents and warrants that it has
not employed any broker, finder, financial advisor or investment banker who would be entitled to any brokerage, finder’s
or other fee or commission payable by the Company or Purchaser in connection with the sale of the Securities.


 


8           
Georgia Law; Submission to Jurisdiction; Waiver of Jury Trial; Appointment of Agent . THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA. EACH PARTY HERETO HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY FEDERAL DISTRICT COURT SITTING IN ATLANTA,
GEORGIA FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH
A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
IN ANY SUCH PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS
ADDRESS SET FORTH HEREIN. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW. EACH PARTY WAIVES ITS RIGHT TO A TRIAL BY JURY.


 




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9            Entire
Agreement. This Agreement, the Exhibits or Schedules hereto, which include the Senior Convertible Note , set forth the entire
agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous
agreements, negotiations and understandings between the parties, both oral and written relating to the subject matter hereof.
The terms and conditions of all Exhibits and Schedules to this Agreement are incorporated herein by this reference and shall constitute
part of this Agreement as is fully set forth herein.


 


10            Survival;
Severability. The representations, warranties, covenants and agreements of the parties hereto shall survive the Closing hereunder.
In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said provision; provided that such severability shall
be ineffective if it materially changes the economic benefit of this Agreement to any party.


 


11           Title
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


12          Reporting
Entity for the Common Stock. The reporting entity relied upon for the determination of the trading price or trading volume
of the Common Stock on any given Trading Day for the purposes of this Agreement and all Exhibits shall be Bloomberg, L.P. or any
successor thereto. The written mutual consent of the Purchaser and the Company shall be required to employ any other reporting
entity.


 


13          Publicity.
The Company and the Purchaser shall consult with each other in issuing any press releases or otherwise making public statements
with respect to the transactions contemplated hereby and no party shall issue any such press release or otherwise make any such
public statement without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed,
except that no prior consent shall be required if such disclosure is required by law, in which such case the disclosing party
shall provide the other parties with prior notice of such public statement. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of Purchaser without the prior written consent of Purchaser, except to the extent required by law,
in which case the Company shall provide Purchaser with prior written notice of such public disclosure.


 


[Signature page follows]


 




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


 


	 	3DICON Corporation
	 	 	 
	 	By:	/s/ Mark Willner
	 	Name:	Mark Willner
	 	Title:	CEO
	 	 	 
	 	Address:	6804 South Canton Avenue, Suite 150
	 	 	Tulsa OK 74136


 


	 	GCA STRATEGIC INVESTMENT FUND
    LIMITED
	 	 	 
	 	By:	/s/ Lewis N. Lester
	 	Name: 	Lewis N. Lester, Sr.
	 	Title: 	Director



 


	 	Address:	c/o Global Capital Advisors
	 	 	72 Estate River, #47
	 	 	Kingshill USVI, 00851
	 	 	 


 





Securities Purchase Agreement


 




    	41



    	 



    

 


LIST OF SCHEDULES


 


Schedule 4.3- Capitalization





Schedule 4.7- Material Change


 


Schedule 4.12-Subsidiaries / Joint Ventures / Investments


 





Schedule 8.2- Affiliate Transactions


 


LIST OF EXHIBITS


 


Exhibit A- Form of Senior Convertible Note


Exhibit C- Solvency Certificate


Exhibit D- Officers Certificate


Exhibit F- Form of Warrant


 


Form of Legal Opinion


Form of Omnibus Rule 144 Opinion