Exhibit 4.4


WAIVER


 


This
WAIVER (the “Waiver”), dated as of March 26, 2018, is made by the investor listed on the signature page
attached hereto (the “Holder”). Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the November 2016 SPA (as defined below), as applicable.


 


RECITALS


 


A.
Reference is made to that certain Securities Purchase Agreement dated as of November 23, 2016, by and among the Company, the Holder
and the other investors listed on the signature pages attached thereto and party to a joinder agreement thereto (the “November
2016 SPA”) and the Senior Secured Notes issued to the Holder pursuant thereto (as amended from time to time prior to
the date hereof, the “November 2016 Notes”);


 


B.
Reference is made to that certain Securities Purchase Agreement dated as of September 19, 2017, by and among the Company and
the investors listed on the signature pages attached thereto (as amended, restated, modified or joined from time to time, the
“September 2017 SPA”), pursuant to which the Company issued convertible senior secured promissory notes in
an aggregate principal amount of approximately $2.11 million and related warrants to purchase up to an aggregate of 844,442
shares of the Company’s Common Stock;


 


C.
In order to support its working capital needs, the Company desires to issue additional convertible senior secured promissory
notes pursuant to the September 2017 SPA in an aggregate principal amount of up to $1,111,112 (the “Additional March
2018 Notes”) and related warrants to purchase up to an aggregate of 444,444 shares of the Company’s Common
Stock (the “Additional March 2018 Warrants”) and the Holder desires to waive the application of certain
provisions in the November 2016 SPA and November 2016 Notes in connection with the issuance of the Additional March 2018
Notes and Additional March 2018 Warrants; and


 


D.
In compliance with Section 15 of the November 2016 Notes and the November 2016 SPA, this Waiver shall only be effective upon the
execution and delivery of this Waiver and waivers in form and substance identical to this Waiver (other than with respect to the
identity of the Holder and any provision regarding the reimbursement of legal fees) (together with this Waiver, the “Waivers”)
by other holders of the November 2016 Notes representing at least the Required Holders (as defined in each of the November 2016
Notes) (such time, the “Effective Time”).


 


AGREEMENT


 


NOW
THEREFORE, in consideration of the foregoing mutual premises and the covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt, and legal adequacy of which is hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:


 






     


     


    

 


ARTICLE
I


SECURITIES
PURCHASE AGREEMENT


 


1. Waiver of Effect of Issuance of Additional March 2018 Notes on November 2016 SPA. Each Required Holder hereby consents
to the waiver of, and hereby irrevocably waives, the effect of the issuance of the Additional March 2018 Notes and the Additional
March 2018 Warrants pursuant to September 2017 SPA on any representation, warranty or covenant in the November 2016 SPA, including
but not limited to Sections 4(k) and 4(r) thereof.


 


ARTICLE
II


NOTES


 


1. Waiver
of Effect of Issuance of Additional March 2018 Notes on November 2016 Notes. Each Required Holder hereby consents to the
waiver of, and hereby irrevocably waives, the effect of the issuance of the Additional March 2018 Notes and the
Additional March 2018 Warrants pursuant to the September 2017 SPA on any representation, warranty or covenant in the November
2016 Notes, including but not limited to Sections 4(a) and 14(d) thereof.


 


article
iII

MISCELLANEOUS


 


1.
Effect of this Waiver. This Waiver shall form a part of the November 2016 Notes for all purposes, and each holder of November
2016 Notes shall be bound hereby. This Waiver shall only be deemed to be in full force and effect from and after both the execution
of this Waiver by the parties hereto and the execution of Waivers substantially identical to this Waiver by the “Holders”
holding at least a majority of the aggregate principal amount of the November 2016 Notes outstanding, including the Lead Investor,
as well as the Collateral Agent, that, together with undersigned, constitute the Required Holders. From and after such effectiveness,
any reference to the November 2016 Notes shall be deemed to be a reference to the November 2016 Notes, as modified hereby. Except
as specifically amended as set forth herein, each term and condition of the November 2016 Notes shall continue in full force and
effect.


 


2. Entire
Agreement. This Waiver, together with the November 2016 SPA and November 2016 Notes, as amended to date, contains the
entire agreement of the parties with respect to the matters contemplated hereby and thereby, and supersedes any prior or
contemporaneous written or oral agreements between them concerning the subject matter of this Waiver.


 


3. Governing
Law. This Waiver shall be governed by the internal law of the State of New York.


 


4. Counterparts.
This Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are physically attached to the same document. This Waiver may be executed by
fax or electronic mail, in PDF format, and no party hereto may contest this Waiver’s validity solely because a
signature was faxed or otherwise sent electronically.


 


[Signature
Page Follows]


 






     


     


    

 





IN
WITNESS WHEREOF, the Holder has caused its signature page to this Waiver to be duly executed as of the date first written
above.


 


	 	HOLDER:
	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title: 





 


 


 


 


 


 


 


 


Signature page to waiver—march
2018