Exhibit 4.3


 


AMENDMENT
AGREEMENT


 


This
AMENDMENT AGREEMENT (the “Agreement”), dated as of November 23, 2016, is made by and between Ener-Core,
Inc., a Delaware corporation, with headquarters located at 9400 Toledo Way, Irvine, California 92618 (the “Company”),
and 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 April 2015 SPA and May 2015 SPA (each as
defined below), as applicable.


 


WHEREAS:


 


A. Reference
is made to that certain Securities Purchase Agreement dated as of April 22, 2015, by and among the Company, the Holder (if applicable)
and the other investors (the “April 2015 Other Holders”) listed on the signature pages attached thereto (the
“April 2015 SPA”) and, if applicable, the Senior Secured Convertible Notes issued to the Holder pursuant thereto
(as amended from time to time prior to the date hereof, the “April 2015 Notes”);


 


B. Reference
is made to that certain Securities Purchase Agreement dated as of May 7, 2015, by and among the Company, the Holder (if applicable)
and the other investors (the “May 2015 Other Holders” and together with the April 2015 Other Holders, the “Other
Holders” and together with the Holder, the “Holders”) listed on the signature pages attached thereto
(the “May 2015 SPA” and together with the April 2015 SPA, individually, an “SPA” and collectively,
the “SPAs”), and, if applicable, the Senior Secured Convertible Notes issued to the Holder pursuant thereto
(as amended from time to time prior to the date hereof, the “May 2015 Notes” and together with the April 2015
Notes, the “2015 Notes”);


 


C. The
Company and the Holder desire to amend and restate each of the 2015 Notes as set forth on Exhibit A attached hereto (the
2015 Notes as amended and restated pursuant to this Agreement and the Other Agreements, the “Notes”).


 


D. In
compliance with Section 15 of the 2015 Notes, this Agreement shall only be effective upon the execution and delivery of this Agreement
and agreements in form and substance identical to this Agreement (other than with respect to the identity of the Holder and any
provision regarding the reimbursement of legal fees) (the “Other Agreements” and together with this Agreement,
the “Agreements”) by other holders of the 2015 Notes (each an “Other Holder”) representing
on the Closing Date at least the Required Holders (as defined in each of the 2015 Notes) (such time, the “Effective Time”).


 


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:


 


1.
INCORPORATION OF PREMISES; CAPITALIZED TERMS.


 


(a) The
Company and the Holder agree that the premises of this Agreement set forth above are incorporated into and form an integral part
of this Agreement.


 


(b) Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms in the applicable SPA.


 






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2.
AMENDMENTS.


 


(a) 2015
Notes. As of the Effective Time and subject to the satisfaction (or waiver) of the conditions set forth in Section 5 and 6
below, the Company and the Holder hereby agree that each of the 2015 Notes shall be amended and restated as set forth on Exhibit
A attached hereto.


 


(b) Applicable
Warrants. Pursuant to Section 2(a) of each of the Warrants set forth on Schedule 2(b) attached hereto (the “Applicable
Warrants”), effective as of the Warrant Effective Time (as defined below), the exercise price of each of the Applicable
Warrants shall be adjusted from $4.00 per share to $3.00 per share (as adjusted for any stock dividend, stock split, stock combination,
reclassification or similar transaction occurring after the date hereof). As used herein, “Warrant Effective Time”
means the time of execution and delivery of this Agreement and agreements in form and substance identical to this Agreement (other
than with respect to the identity of the Holder and any provision regarding the reimbursement of legal fees) by holders of the
Applicable Warrants representing on the Closing Date at least the Required Holders (as defined in each of the Applicable Warrants).


 


3.
AMENDMENT; CLOSING; NO NOVATION;
RATIFICATION; CONFLICTS.


 


(a) Procedure.
At the Closing (as defined in Section 3(b) hereof), the Company shall duly execute and deliver to the Holder the Notes (in the
same principal amounts and allocations as the Holder’s 2015 Notes). As soon as practicable following the Closing Date (as
defined in Section 3(b)), the Holder shall return the original certificate(s) of the 2015 Notes to the Company.


 


(b) Closing.
The date and time of the closing (the “Closing”) of the transactions specified in Sections 2 and 3(a) above
(the “Closing Date”) shall be at the Effective Time (or such later date and time as is mutually agreed to by
the Company and the Holder), subject to the notification of satisfaction (or waiver) of the conditions to Closing set forth in
Sections 5 and 6 hereof. The Closing shall occur at the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New
York 10022 and may be undertaken remotely by electronic exchange of documentation.


 


(c) No
Novation. This Agreement is not in any way intended to (1) constitute a novation of the obligations and liabilities existing
under the 2015 Notes or evidence payment of all or any portion of such obligations and liabilities thereunder or (2) impair or
affect the liens and/or security interests granted, pledged or assigned by the Grantors (as defined in the Security Agreement
(as defined in each SPA)) to the Collateral Agent (as defined in the Security Agreement (as defined in each SPA)) for the Holders
in accordance with the terms of the Security Agreement (as defined in each SPA) and the various other security documents, executed
in connection therewith or related thereto. The Grantors (as defined in the Security Agreement (as defined in each SPA)) acknowledge
their prior grant of liens and security interests under the Security Agreement (as defined in each SPA) and confirm that such
liens continue to secure the Obligations (as defined in the Security Agreement (as defined in each SPA)) under the Notes.


 


(d) Ratification.
Except as otherwise expressly provided herein, the 2015 Notes and each other Transaction Document (as defined in each SPA), are,
and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after
the Closing Date (i) all references in any of the 2015 Notes to “this Note”, “hereto”, “hereof”,
“hereunder” or words of like import referring to such 2015 Notes shall mean such 2015 Notes as amended and restated
by the Agreements, and (iii) all references in the other Transaction Documents, to any “Notes” (and corollary references
to “thereto”, “thereof”, “thereunder” or words of like import referring to any of the 2015
Notes) shall mean the applicable 2015 Notes as amended and restated by the Agreements. Except as expressly set forth herein, this
Agreement shall not be deemed to be a waiver, amendment or modification of any provisions of any of the 2015 Notes, or of any
right, power or remedy of the Holder, or constitute a waiver, amendment or modification of any provision of such 2015 Notes (except
to the extent explicitly set forth herein), or any other document, instrument and/or agreement executed or delivered in connection
therewith, in each case whether arising before or after the date hereof or as a result of performance hereunder or thereunder,
all of which (except as specified herein) remain in full force and effect.


 






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(e) Conflicts.
In the event of any conflict between: (i) this Agreement; and (ii) the 2015 Notes, this Agreement shall control.


 


4.
REPRESENTATIONS, AGREEMENTS, WARRANTIES AND COVENANTS.


 


(a) Holder
Representations, Warranties and Covenants. The Holder hereby represents and warrants to the Company that:


 


(i) Authorization;
Enforcement; Validity. The Holder has the power and authority to execute and deliver this Agreement and perform its obligations
hereunder; and this Agreement and the transactions contemplated hereby have been duly authorized by the Holder. This Agreement
has been duly and validly authorized, executed and delivered on behalf of the Holder and shall constitute the legal, valid and
binding obligations of the Holder enforceable against the Holder in accordance with its terms, except as such enforceability may
be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 


(ii) No
Conflicts. The execution, delivery and performance by the Holder of this Agreement and the consummation by the Holder of the
transactions contemplated hereby will not (i) result in a violation of the organizational documents of the Holder or (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Holder is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws) applicable to the Holder, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect
on the ability of the Holder to perform its obligations hereunder.


 


(b) Company
Representations, Warranties and Covenants. The Company hereby represents, warrants, agrees and covenants, as applicable, to
and with the Holder that:


 


(i) Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing and in
good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authorization to own
their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the
Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction
in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to
the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse
Effect. As used in this Agreement, “Material Adverse Effect” means any material adverse effect on the business,
properties, assets, liabilities, operations, results of operations, condition (financial or otherwise) or prospects of the Company
and its Subsidiaries, individually or taken as a whole, or on the transactions contemplated hereby or by the agreements and instruments
to be entered into in connection herewith, or on the authority or ability of the Company to perform any of its obligations hereunder.


 






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(ii) Authorization;
Enforcement; Validity. The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and to amend and restate the 2015 Notes in accordance with the terms hereof. The execution and delivery of
this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby, including, without
limitation, the amendment and restatement of the 2015 Notes, have been duly authorized by the Company’s Board of Directors
and no further filing, consent or authorization is required by the Company, its Board of Directors or its stockholders. This Agreement
has been duly executed and delivered by the Company, and constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights and remedies.


 


(iii) No
Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby (including, without limitation, the amendment and restatement of the 2015 Notes) will not
(i) result in a violation of the Company’ Certificate of Incorporation or Bylaws or other organizational documents of the
Company or any of its Subsidiaries, any capital stock of the Company or any of its Subsidiaries or the articles of association
or bylaws of the Company or any of its Subsidiaries or (ii) conflict with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party,
or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities
laws and regulations and the rules and regulations of Principal Market and including all applicable foreign, federal laws, rules
and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any
of its Subsidiaries is bound or affected.


 


(iv) Consents.
The Company is not required to obtain any consent from, authorization or order of, or make any filing or registration with any
court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver
or perform any of its obligations under or contemplated by this Agreement in accordance with the terms hereof. All consents, authorizations,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained
or effected on or prior to the Closing Date, and the Company is unaware of any facts or circumstances which might prevent the
Company from obtaining or effecting any of the registration, application or filings contemplated by this Agreement. The Company
is not in violation of the requirements of the Principal Market and has no knowledge of any facts or circumstances which could
reasonably lead to delisting or suspension of the Common Stock in the foreseeable future. The amendment and restatement of the
2015 Notes as contemplated hereby shall not have the effect of delisting or suspending the Common Stock from the Principal Market.


 


(v) Absence
of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by the Principal Market, any court,
public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s Subsidiaries or any
of the Company’s or its Subsidiaries’ officers or directors, whether of a civil or criminal nature or otherwise, in
their capacities as such, except as set forth in Schedule 4(b)(v). The matters set forth in Schedule 4(b)(v) would
not reasonably be expected to have a Material Adverse Effect.


 


(vi) Other
Agreements. The Company will not amend any 2015 Notes of any Other Holders with a more favorable terms than is provided to
the Holder hereunder or offer any consideration (other than the reimbursement of legal fees) to any Other Holder without offering
the same consideration to the Holder.


 






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(vii) SEC
Filings. As of their respective filing dates, the Company’s filings with the SEC under the 1934 Act since December 31,
2015 (the “SEC Documents”), complied in all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the
time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading.  The Company represents that, as of the date hereof, no material event or circumstance has occurred
which would be required to be publicly disclosed or announced on a Current Report on Form 8-K, either as of the date hereof or
solely with the passage of time by the Company but which has not been so publicly announced or disclosed. 


 


(viii) Rule
144. For purposes of Rule 144 of the 1933 Act, the Company acknowledges and agrees that the holding period of the April 2015
Notes, as amended by the Agreements, commenced on April 23, 2015 and that the holding period of the May 2015 Notes, as amended
by the Agreements, commenced on May 7, 2015 and the Company agrees not to take a position contrary thereto or inconsistent therewith.


 


(ix) Disclosure
of Transactions and Other Material Information. The Company shall file a current report on Form 8-K on or before 8:30 a.m.,
New York City time, on the first Business Day after both this Agreement and the Other Agreements have been duly executed and delivered,
in the form required by the 1934 Act, relating to the transactions contemplated by this Agreement and the Other Agreements and
attaching a form of this Agreement (including, without limitation, all schedules and exhibits to such agreement, if any, the “8-K
Filing”) as an exhibit to such filing. From and after the filing of the 8-K Filing with the SEC, the Holder shall not
be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, that is not disclosed in the 8-K Filing. In addition, effective upon the
filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any
agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
affiliates, employees or agents, on the one hand, and the Holder or any of its affiliates, on the other hand, shall terminate
and be of no further force of effect. The Company shall not, and shall cause each of its Subsidiaries and its and each of their
respective officers, directors, affiliates, employees and agents, not to, provide the Holder with any material, nonpublic information
regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of the
Holder. To the extent that the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates employees
or agents delivers any material, non-public information to the Holder without the Holder’s express prior written consent,
the Company hereby covenants and agrees that the Holder’s shall not have any duty of confidentiality to the Company, any
of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents with respect to, or a duty
to the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents not to
trade on the basis of, such material, non-public information. The Company understands and confirms that the Holder will rely on
the foregoing representations in effecting transactions in securities of the Company. 


 


(x) Reporting
Status. Until the earlier of (i) the date on which the Holder has sold all the shares of Common Stock issuable upon conversion
of the Notes (without regard to any limitation on conversions of the Notes) (the “Underlying Shares”), and
(ii) the date on which the Holder may sell all of the Underlying Shares without restriction or limitation pursuant to Rule 144
and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act,
the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not
terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations
thereunder would no longer require or otherwise permit such termination.


 






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(xi) Public
Information. At any time during the period commencing on the Closing Date and ending at such time that all of the Underlying
Shares may be sold without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with
Rule 144(c)(1), if a registration statement is not otherwise available for the resale of all of the Underlying Shares and if the
Company shall (i) fail for any reason to satisfy the requirements of Rule 144(c)(1), including, without limitation, the failure
to satisfy the current public information requirement under Rule 144(c) or (ii) if the Company has ever been an issuer described
in Rule 144(i)(1)(i) or becomes such an issuer in the future, and the Company shall fail to satisfy any condition set forth in
Rule 144(i)(2) (a “Public Information Failure”) then, as partial relief for the damages to any holder of Underlying
Shares by reason of any such delay in or reduction of its ability to sell the Underlying Shares (which remedy shall not be exclusive
of any other remedies available at law or in equity), the Company shall pay to each such holder an amount in cash equal to two
percent (2.0%) of the aggregate Fair Market Value (as defined below) of the Underlying Shares on the day of a Public Information
Failure and on every thirtieth day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (i)
the date such Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant
to Rule 144. The payments to which a holder shall be entitled pursuant to this Section 4(b)(xi) are referred to herein as “Public
Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (I) the last day
of the calendar month during which such Public Information Failure Payments are incurred and (II) the third Business Day after
the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public
Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5%
per month (prorated for partial months) until paid in full. The “Fair Market Value” of each Underlying Share
will be determined based on the highest Weighted Average Price (as defined in the Notes) of the Common Stock during the period
beginning on the date of each applicable Public Information Failure and ending on the date the applicable Public Information Failure
Payment relating to such Public Information Failure is satisfied in full.


 


(xii) Most
Favored Nation. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the
date hereof that none of the terms offered to any Person with respect to any consent, release, amendment, settlement or waiver
relating to the terms, conditions and transactions contemplated hereby (each an “Amendment Document”), is or
will be more favorable to such Person than those of the Holder and this Agreement (other than as to legal expenses). If, and whenever
on or after the date hereof, the Company enters into an Amendment Document, then (i) the Company shall provide notice thereof
to the Holder immediately following the occurrence thereof and (ii) the terms and conditions of this Agreement shall be, without
any further action by the Holder or the Company, automatically amended and modified in an economically and legally equivalent
manner such that the Holder shall receive the benefit of the more favorable terms and/or conditions (as the case may be) set forth
in such Amendment Document, provided that upon written notice to the Company at any time the Holder may elect not to accept the
benefit of any such amended or modified term or condition, in which event the term or condition contained in this Agreement shall
apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification
never occurred with respect to the Holder. The provisions of this Section 4(b)(xii) shall apply similarly and equally to each
Amendment Document.


 






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5.
CONDITIONS TO COMPANY’S OBLIGATIONS HEREUNDER.


 


The
obligations of the Company to the Holder hereunder are subject to the satisfaction of each of the following conditions, provided
that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion
by providing the Holder with prior written notice thereof:


 


(a) The
Holder shall have duly executed this Agreement and delivered the same to the Company; and


 


(b) The
representations and warranties of the Holder shall be true and correct as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct
as of such specified date), and the Holder shall have performed, satisfied and complied with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the Holder at or prior to the Closing Date.


 


6.
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER.


 


The
obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions
are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion
by providing the Company with prior written notice thereof:


 


(a) The
Company shall have duly executed this Agreement and delivered the same to the Holder;


 


(b) The
Other Holders shall have duly executed and delivered to the Company the Other Agreements;


 


(c) The
representations and warranties of the Company under this Agreement shall be true and correct in all respects as of the date when
made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific
date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in
all respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with
by the Company at or prior to the Closing Date;


 


(d) The
Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as
of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or
the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or
(B) by falling below the minimum listing maintenance requirements of the Principal Market;


 


(e) The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the transactions
contemplated hereby; and


 


(f) Since
the date hereof, no event has caused, or that could be reasonably expected to cause, a Material Adverse Effect to have occurred.


 


7.
TERMINATION.


 


In
the event that the Closing shall not have occurred by on or before three (3) Business Days from the date hereof, due to the Company’s
or the Holder’s failure to satisfy the conditions set forth in Sections 5 and 6 hereof (and the nonbreaching party’s
failure to waive such unsatisfied conditions(s)), the nonbreaching party shall have the option to terminate this Agreement with
respect to such breaching party at the close of business on such date without liability of any party to any other party. Upon
such termination, the terms hereof shall be null and void.


 






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8.
MISCELLANEOUS.


 


(a) General.
This Agreement shall be governed and construed under the laws of the State of New York, York (without giving effect to the conflict
of laws principles thereof). The courts of the State of New York shall have exclusive jurisdiction to resolve any and all disputes
that may arise under this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be an original,
but all of which together shall constitute one instrument. A facsimile or other electronic transmission of this signed Agreement
shall be legal and binding on all parties hereto. This Agreement shall be binding on and shall inure to the benefit of the parties
and their respective successors and permitted assigns. In the event that any provision of this Agreement is found to be void or
invalid, then such provision shall be deemed to be severable from the remaining provisions of this Agreement, and it shall not
affect the validity of the remaining provisions, which provisions shall be given full effect as if the void or invalid provision
had not been included herein so long as this Agreement as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s)
in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations
to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close
as possible to that of the prohibited, invalid or unenforceable provision(s). The terms and provisions of this Agreement shall
inure to the benefit of and be binding upon the heirs, successors and assigns of the parties. Any amendments or modifications
hereto must be executed in writing by the Company and the Required Holders (as defined in the April 2015 Notes) and the Required
Holders (as defined in the May 2015 Notes). Each party hereto shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as
any other party may reasonably request in order to carry out the intent and accomplish the purposes of this letter agreement.
This Agreement shall supersede all other prior oral or written agreements among the Holder, the Company, their Affiliates and
persons acting on their behalf with respect to the matters discussed herein and therein, and this Agreement, and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein. Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be
in writing and will be deemed to have been delivered if delivered pursuant to Section 9(f) of the applicable SPA.


 


(b) Independent
Nature of Holder’s Obligations and Rights. The obligations of the Holder under this Agreement are several and not joint
with the obligations of any Other Holder, and the Holder shall not be responsible in any way for the performance of the obligations
of any Other Holder under any Other Agreement. Nothing contained herein or in any Other Agreement, and no action taken by the
Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Holder and Other Holders are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement and the Company
acknowledges that, to the best of its knowledge, the Holder and the Other Holders are not acting in concert or as a group with
respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement. The Company and the Holder
confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice
of its own counsel and advisors. The Holder shall be entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Holder to be joined as an additional
party in any proceeding for such purpose.


 






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(c) Fees
and Expenses. [INSERT ONLY IN AGREEMENT OF EMPERY: The Company shall reimburse the Holder for its legal fees and expenses
in connection with the preparation and negotiation of this Agreement and transactions contemplated thereby, by paying any such
amount to Schulte Roth & Zabel LLP (the “Holder Counsel Expense”) by wire transfer of immediately available
funds in accordance with the written instructions of Schulte Roth & Zabel LLP delivered to the Company on or prior to the
Closing. The Holder Counsel Expense shall be paid by the Company whether or not the transactions contemplated by this Agreement
are consummated. Except as otherwise set forth above, each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all stamp and other taxes and duties levied in connection with
the transactions contemplated hereby, if any.] [INSERT ONLY IN OTHER AGREEMENTS: Each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all stamp and other taxes
and duties levied in connection with the transactions contemplated hereby, if any.]


 


[Signature
Page Follows]


 




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IN
WITNESS WHEREOF, the Holder and the Company have caused their respective signature pages to this Agreement to be duly executed
as of the date first written above.


 


	 	COMPANY:
	 	 
	 	ENER-CORE,
    INC.
	 	 	 
	 	By:	
	 	 	Name:
	 	 	Title:  


  


 


 


 





[Signature Page to Amendment Agreement]




 




     


     


    

 


IN
WITNESS WHEREOF, the Holder and the Company have caused their respective signature pages to this Agreement to be duly executed
as of the date first written above.


  


	 	HOLDER:
	 	 
	 	[                  ]
	 	 
	 	 	 
	 	 	 
	 	 	 
	 	By:	
	 	 	Name:
	 	 	Title:  


  




     


     


    

 


Schedule
2(b)


 


	Issuance
    Date	 	Applicable
    Warrants
	 	 	 
	4/23/15	 	2015
    (Warrant numbers 1–11)
	12/30/15	 	W-A2015
    (Warrant numbers 1–11)
	2/3/16	 	W-A2016
    (Warrant numbers 1–11)
	3/31/16	 	W-E2016
    (Warrant numbers 1–11)
	9/1/16	 	W-B2016
    (Warrant numbers 1–5)
	11/1/16	 	W-BA2016
    (Warrant numbers 1–5)




 




     


     


    

 


Schedule
4(b)(v)


 


On
June 13, 2016, SAIL Venture Partners LLC, SAIL Capital Management LLC and all SAIL affiliates owning shares of the Company (collectively,
“SAIL”) filed a Schedule 13D in which it set forth various complaints and demands with respect to the Company. The
Company has disputed all such complaints and demands; see Form 8-K filed June 14, 2016.


  


On
September 23, 2016 AMTRA ENGINEERING B.V. filed a civil lawsuit (Case number 30-2016-00877078-CU-BC-CJC) in the Superior Court,
County of Orange, California against Ener-Core Power, Inc. alleging breach of contract and breach of warranty. To date, the Company
and Ener-Core Power, Inc. have not been legally served on this matter. The lawsuit is due to a billing dispute surrounding a contractor
for the Attero 250Kw unit delivered in June 2014 to the Netherlands. The Company has accrued $50,000 for this disputed amount
as of December 31, 2015 based solely on billings received. In the event of service, the Company believes it has a substantial
defense including proper jurisdiction, will dispute all demands, and has a counter-claim against the contractor for $30,000.


 






     


     


    

 









EXHIBIT
A


 


Form of Senior Secured Note


 


Ener-Core,
Inc.


 


AMENDED
AND RESTATED SENIOR SECURED NOTE


 





	Issuance
    Date:  April /May [●] 2015	Original
    Principal Amount: U.S. $[          ]







 





Amended and Restated as of November [●], 2016




 


FOR VALUE RECEIVED,
Ener-Core, Inc., a Delaware corporation (the “Company”), hereby promises to pay to [BUYER] or registered assigns
(the “Holder”) in cash and/or in shares of Common Stock (as defined below) the amount set out above as the
Original Principal Amount (as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”)
when due, whether upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance
with the terms hereof) and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest
Rate from the date set out above as the Issuance Date (the “Issuance Date”) until the same becomes due and
payable, whether upon an Interest Date (as defined below), the Maturity Date, acceleration, conversion, redemption or otherwise
(in each case in accordance with the terms hereof). This Senior Secured Note (including all Senior Secured Notes issued in exchange,
transfer or replacement hereof, this “Note”) is one of a series of Senior Secured Notes issued to the Holder
by the Company pursuant to that certain [Securities Purchase Agreement, dated as of April 22, 2015 by and among the Company and
the investors listed on the signature pages attached thereto][Securities Purchase Agreement, dated as of May 7, 2015 by and among
the Company and the investors listed on the signature pages attached thereto] and as amended and restated pursuant to the Agreement
(as defined below). Certain capitalized terms used herein are defined in Section 30.


 


(1) ORIGINAL
ISSUE DISCOUNT; PAYMENTS OF PRINCIPAL; PREPAYMENT. The Company acknowledges and agrees that this Note was issued at
an original issue discount. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing
all outstanding Principal, accrued and unpaid Interest and accrued and unpaid Late Charges (as defined in Section 23(b)) on
such Principal and Interest. The “Maturity Date” shall be December 31, 2018, as may be extended at the
option of the Holder (i) in the event that, and for so long as, an Event of Default (as defined in Section 4(a)) shall have
occurred and be continuing on the Maturity Date (as may be extended pursuant to this Section 1) or any event shall have
occurred and be continuing on the Maturity Date (as may be extended pursuant to this Section 1) that with the passage of time
and the failure to cure would result in an Event of Default and (ii) through the date that is ten (10) Business Days after
the consummation of a Change of Control in the event that a Change of Control is publicly announced or a Change of Control
Notice (as defined in Section 5(b)) is delivered prior to the Maturity Date. Other than as specifically permitted by this
Note, the Company may not prepay any portion of the outstanding Principal, accrued and unpaid Interest or accrued and unpaid
Late Charges on Principal and Interest, if any.


 






    	 	A-1	 



     


    

 


(2) DEFAULT
INTEREST. This Note shall not bear any ordinary interest as this principal amount of this Note includes an original issue
discount. Interest on this Note shall commence accruing immediately upon the occurrence of, and shall continue accruing during
the continuance of, an Event of Default, at ten percent (10.0%) per annum (the “Default Rate”) and shall be
computed on the basis of a 360-day year of twelve 30-day months and shall be payable, if applicable, in arrears for each calendar
month on the first (1st) Business Day of each calendar month after any such Interest accrues after an Event of Default
(each, an “Interest Date”). Interest, if any, shall be payable on each Interest Date, to the record holder
of this Note on the applicable Interest Date in cash by wire transfer of immediately available funds pursuant to wire instruction
provided by the Holder in writing to the Company. Prior to the payment of Interest on an Interest Date, Interest on this Note
shall accrue at the Default Rate and be payable by way of inclusion of the Interest in the Conversion Amount (as defined in Section
3(b)(i)) on each Conversion Date (as defined in Section 3(c)(i)) in accordance with Section 3(c)(i) and on each Redemption Date.
In the event that such Event of Default is subsequently cured, Interest shall no longer accrue as of the date of such cure; provided,
that for the purpose of this Section 2, such Event of Default shall not be deemed cured unless and until any accrued and unpaid
Interest shall be paid to the Holder.


 


(3) CONVERSION
OF NOTES. At any time or times after the Issuance Date, this Note shall be convertible, at the Holder’s option, into
shares of the Company’s common stock, par value $0.0001 per share (including any capital stock into which such common
stock shall have been changed or any capital stock resulting from a reclassification of such common stock, the “Common
Stock”), on the terms and conditions set forth in this Section 3.


 


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


 


(b) Conversion
Rate. The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall
be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).


 


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


 


(ii)
“Conversion Price” means, as of any Conversion Date or other applicable date of determination, $2.50
per share, subject to adjustment as provided herein.


 






    	 	A-2	 



     


    




 


(c) Mechanics
of Conversion.


 


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


 


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


 






    	 	A-3	 



     


    

 


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


 






    	 	A-4	 



     


    

 


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


 


(v) Automatic
Conversion. The Conversion Amount shall automatically be converted into shares of Common Stock based on the then-effective
applicable Conversion Price (an “Automatic Conversion”) on the fifth (5th) Trading Day immediately
following the first Trading Day after the Issuance Date (the “Automatic Conversion Date”) on which (i) the
Weighted Average Price of the Common Stock for each Trading Day during a consecutive twenty (20) Trading Day period (the “Automatic
Conversion Measuring Period”) equals or exceeds $5.00 (as adjusted for any stock dividend, stock split, stock combination,
reclassification or similar transaction occurring after the Subscription Date) and (ii) no Equity Conditions Failure has occurred.
The Company shall deliver within two (2) Trading Days following the end of such Automatic Conversion Measuring Period a written
notice thereof by facsimile or electronic mail and overnight courier to all, but not less than all, of the holders of Notes and
the Transfer Agent (the “Automatic Conversion Notice” and the date the Holder and all the holders of the Other
Notes receive such notice is referred to as the “Automatic Conversion Notice Date”). The Automatic Conversion
Notice shall (i) state (a) the Automatic Conversion Date, (b) the aggregate Conversion Amount of the Notes which shall be subject
to Automatic Conversion from the Holder and all of the holders of the Other Notes pursuant to this Section 3(c)(v) (and analogous
provisions under the Other Notes) and (c) the number of shares of Common Stock to be issued to the Holder on the Automatic Conversion
Date and (ii) certify that there has been no Equity Conditions Failure on any day during the period beginning on the first day
of the Equity Conditions Measuring Period relating to the first date of the Automatic Conversion Measuring Period and ending on,
and including, the Automatic Conversion Date. This Note and all of the outstanding Other Notes shall be converted automatically
on the Automatic Conversion Date without any further action by the Holder and the holders of such Other Notes and whether or not
this Note or the Other Notes are surrendered to the Company or its Transfer Agent. Upon the occurrence of such Automatic Conversion
of this Note and the Other Notes, including, without limitation, the delivery of the applicable Conversion Shares, this Note will
be deemed converted in full on the Automatic Conversion Date, and the Holder and the holders of the Other Notes shall be deemed
to have surrendered such Notes to the Company. Notwithstanding anything to the contrary in this Section 3(c)(v), until the Automatic
Conversion has occurred, the Conversion Amount subject to the Automatic Conversion may be converted, in whole or in part, by the
Holder into shares of Common Stock pursuant to Sections 3(c)(i). All Conversion Amounts converted by the Holder after the Automatic
Conversion Notice Date shall reduce the Conversion Amount of this Note to be converted on the Automatic Conversion Date.


 






    	 	A-5	 



     


    

 


(d) Limitations
on Conversions. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the
right to convert any portion of this Note, to the extent that after giving effect to such conversion, the Holder together with
the other Attribution Parties collectively would beneficially own in excess of [4.99%/9.99%]1
(the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving
effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially
owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and
all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of this Note with respect to
which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon
(i) conversion of the remaining, nonconverted portion of this Note beneficially owned by the Holder or any of the other Attribution
Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including,
without limitation, any convertible notes or convertible preferred stock or warrants, including the Other Notes) beneficially
owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation
contained in this Section 3(d). For purposes of this Section 3(d), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may
acquire upon the conversion of the Note without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding
shares of Common Stock as reflected in (i) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (ii) a more recent public announcement
by the Company or (iii) any other written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion Notice from
a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number,
the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that
such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 3(d),
to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of shares of Common Stock to be issued
pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall
within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise
of securities of the Company, including this Note, by the Holder and any other Attribution Party since the date as of which the
Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon conversion
of this Note results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more
than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange
Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial
ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled
ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice
to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first (61st)
day after delivery of such notice) or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified
in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st)
day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the
other Attribution Parties and not to any other holder of Notes that is not an Attribution Party of the Holder. For purposes of
clarity, the shares of Common Stock issuable pursuant to the terms of this Note in excess of the Maximum Percentage shall not
be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of
the Exchange Act. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 3(d) to the extent necessary to correct this paragraph (or any portion of this paragraph) which
may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 3(d) or to make changes
or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may
not be waived and shall apply to a successor holder of this Note.




 





 



1
NTD: At the Holder’s election.


 






    	 	A-6	 



     


    

 


(4) RIGHTS
UPON EVENT OF DEFAULT.


 


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


  


 


(i)       [Intentionally
omitted];


 


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


 


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


 


(iv)       at
any time following the fifth (5th) consecutive Business Day that the Holder’s Authorized Share Allocation is
less than the number of shares of Common Stock that the Holder would be entitled to receive upon a conversion of the full Conversion
Amount of this Note (without regard to any limitations on conversion set forth in Section 3(d) or otherwise) calculated using
the initial Conversion Price of $2.50 (as adjusted for any stock dividend, stock split, stock combination, reclassification or
similar transaction occurring after the Subscription Date) (the “Initial Conversion Price”);


 


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


 


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


 


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


 






    	 	A-7	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	A-8	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 



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


 


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


 






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


 






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(6) RIGHTS
UPON ISSUANCE OF OTHER SECURITIES.


 


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


 


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


 


(7) OPTIONAL
REDEMPTION AT THE HOLDER’S ELECTION. At any time from and after January 1, 2018 and provided that the Company shall
not have received either (i) initial deposits for at least eight 2 megawatt (MW) Power Oxidizer units or (ii) firm purchase orders
totaling not less than $3,500,000 and initial payment collections of at least $1,600,000, in each case during the period commencing
on the Issuance Date and ending on December 31, 2017 (inclusive), the Holder shall have the right, in its sole and absolute discretion,
at any time or times, to require that the Company redeem (a “Holder Optional Redemption”) all or any portion
of the Conversion Amount of this Note then outstanding by delivering written notice thereof (a “Holder Optional Redemption
Notice” and the date the Holder delivers such notice, the “Holder Optional Redemption Notice Date”)
to the Company, which notice shall state (i) the portion of this Note that is being redeemed and (ii) the date on which the Holder
Optional Redemption shall occur, which date shall be not less than three (3) Business Days from the Holder Optional Redemption
Notice Date (the “Holder Optional Redemption Date”). The portion of this Note subject to redemption pursuant
to this Section 7 shall be redeemed by the Company in cash at a price (the “Holder Optional Redemption Price”)
equal to 100% of the Conversion Amount of the portion of this Note being redeemed. On the applicable Holder Optional Redemption
Date, the Company shall deliver or shall cause to be delivered to the Holder the applicable Holder Optional Redemption Price in
cash by wire transfer of immediately available funds pursuant to wire instructions provided by the Holder in writing to the Company.
Holder Optional Redemptions made pursuant to this Section 7 shall be made in accordance with Section 11. To the extent redemptions
required by this Section 7 are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the
Company, such redemptions shall be deemed to be voluntary prepayments.


 






    	 	A-12	 



     


    

 


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


 


(a) General.
At any time after the Issuance Date, the Company shall have the right to redeem all or any portion of the Conversion Amount then
remaining under this Note and the Other Notes (the “Company Optional Redemption Amount”) as designated in the
Company Optional Redemption Notice on the Company Optional Redemption Date (each as defined below) (a “Company Optional
Redemption”); provided, that the aggregate Conversion Amount under this Note and the Other Notes being redeemed
pursuant to this Section 8 (and analogous provisions under the Other Notes) shall be at least $500,000, or such lesser amount
that is then outstanding under this Note and the Other Notes, in the aggregate. The portion of this Note and the Other Notes subject
to redemption pursuant to this Section 8(a) shall be redeemed by the Company on the Company Optional Redemption Date (as defined
below) in cash by wire transfer of immediately available funds pursuant to wire instructions provided by the Holder in writing
to the Company at a price equal to the greater of (x) 110% of the Conversion Amount of this Note to be redeemed and (y) the product
of (A) the Conversion Amount being redeemed and (B) the quotient determined by dividing (I) the greatest Weighted Average Price
of the shares of Common Stock during the period beginning on the date immediately preceding the Company Optional Redemption Notice
Date (as defined below) and ending on the Company Optional Redemption Date (as defined below), by (II) the lowest Conversion Price
in effect during such period (the “Company Optional Redemption Price”). The Company may exercise its right
to require redemption under this Section 8 by delivering prior written notice thereof fifteen (15) days prior to the Company Optional
Redemption Date (as defined below) by facsimile or electronic mail and overnight courier to the Holder and all, but not less than
all, of the holders of the Other Notes (the “Company Optional Redemption Notice” and the date all of the holders
of the Notes received such notice is referred to as the “Company Optional Redemption Notice Date”). The Company
Optional Redemption Notice shall be irrevocable. The Company Optional Redemption Notice shall (i) state the date on which the
Company Optional Redemption shall occur (the “Company Optional Redemption Date”), which date shall be fifteen
(15) days following the Company Optional Redemption Notice Date or, if such date falls on a Holiday, the next day that is not
a Holiday and (ii) state the aggregate Conversion Amount of the Notes which the Company has elected to be subject to Company Optional
Redemption from the Holder and all of the holders of the Other Notes pursuant to this Section 8(a) (and analogous provisions under
the Other Notes) on the Company Optional Redemption Date and (iii) certify that there is no Event of Default that is continuing
as of the applicable Company Optional Redemption Notice Date. If the Company confirmed that there was no such Event of Default
continuing as of the applicable Company Optional Redemption Notice Date but an Event of Default occurs between the applicable
Company Optional Redemption Notice Date and any time through the applicable Company Optional Redemption Date (the “Company
Optional Redemption Interim Period”), the Company shall provide the Holder a subsequent notice to that effect. If there
is an Event of Default that is continuing (which is not waived in writing by the Holder) during such Company Optional Redemption
Interim Period, then the Company Optional Redemption shall be null and void with respect to all or any part designated by the
Holder of the unconverted Company Optional Redemption Amount and the Holder shall be entitled to all the rights of a holder of
this Note with respect to such amount of the Company Optional Redemption Amount. Notwithstanding anything to the contrary in this
Section 8, until the Company Optional Redemption Price is paid in full, the Company Optional Redemption Amount may be converted,
in whole or in part, by the Holder into shares of Common Stock pursuant to Section 3. All Conversion Amounts converted by the
Holder after the Company Optional Redemption Notice Date shall reduce the Company Optional Redemption Amount of this Note required
to be redeemed on the Company Optional Redemption Date, unless the Holder otherwise indicates in the applicable Conversion Notice.
Company Optional Redemptions made pursuant to this Section 8 shall be made in accordance with Section 11. To the extent redemptions
required by this Section 8 are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the
Company, such redemptions shall be deemed to be voluntary prepayments.


 






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


 


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


 


(10) RESERVATION
OF AUTHORIZED SHARES.


 


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


 






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


 


(11) REDEMPTIONS.


 


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


 






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


 


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


 


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


 


(14) COVENANTS.


 


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


 


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


 


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


 


(d) Restricted
Payments.


 


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


 






    	 	A-16	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


(16)       TRANSFER.
This Note and any shares of Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by
the Holder without the consent of the Company. 


 


(17) REISSUANCE
OF THIS NOTE.


 


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


 


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


 


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


 






    	 	A-18	 



     


    

 


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


 


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


 


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


 


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


 


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


 






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


 


(23) NOTICES;
PAYMENTS.


 


(a) Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance
with Section 8(f) of the Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant
to this Note, including in reasonable detail a description of such action and the reason therefore. Without limiting the generality
of the foregoing, the Company shall give written notice to the Holder (i) immediately upon any adjustment of the Conversion Price,
setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least twenty (20) days prior
to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the
Common Stock, (B) with respect to any pro rata subscription offer to holders of Common Stock or (C) for determining rights to
vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall
be made known to the public prior to or in conjunction with such notice being provided to the Holder.


 


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


 


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


 


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


 






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


 


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


 


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


 


(29) NO
NOVATION. The Agreements are not in any way intended to (1) constitute a novation of the obligations and liabilities
existing under these Notes or evidence payment of all or any portion of such obligations and liabilities hereunder or (2)
impair or affect the liens and/or security interests granted, pledged or assigned by the Grantors (as defined in the Security
Agreement (as defined in the Agreement)) to the Collateral Agent (as defined in the Security Agreement (as defined in the
Agreement)) for the Holders of the Notes in accordance with the terms of the Security Agreement and the various other
security documents, executed in connection therewith or related thereto. The Grantors acknowledge their prior grant of liens
and security interests under the Security Agreement and confirm that such liens continue to secure the Obligations (as
defined in the Security Agreement) under the Notes. 


 






    	 	A-21	 



     


    

 


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


 


(a) “Additional
Notes” means those certain senior secured convertible notes issued by the Company pursuant to that certain Securities
Purchase Agreement, dated as of the Subscription Date by and among the Company, the investors listed on the signature pages attached
thereto and the investors, if any, party to a joinder agreement with respect thereto.


 


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


 


(c) “Agreement”
means, collectively, those certain amendment agreements dated as of the Subscription Date by and among the Company and each holder
listed on the signature page attached thereto pursuant to which the Company amended and restated the Notes.


 


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


 


(e) “Backstop
Agreement” means that certain Backstop Security Support Agreement entered into on November 2, 2015 by an individual
investor and the Company.


 


(f)“Bloomberg”
means Bloomberg Financial Markets.


 


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


 


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


 






    	 	A-22	 



     


    

 


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


 


(j)       “Closing Date” shall have the meaning set
forth in the Agreement, which date is the date the Company initially issued Notes pursuant to the terms of the Agreement. 


 


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


 


(l) “Conversion
Shares” means shares of Common Stock issuable by the Company pursuant to the terms of any of the Notes, including, without
limitation, any related Interest and Late Charges, if any, so converted or redeemed.


 


(m)“Eligible
Market” means The New York Stock Exchange, The Nasdaq Global Market,
The Nasdaq Global Select Market, The NASDAQ Capital Market or the NYSE MKT or,
on or prior to December 31, 2017, the Principal Market.


 






    	 	A-23	 



     


    

 


(n) “Equity
Conditions” means each of the following conditions: (i) on each day during an Equity Conditions Measuring Period, either
(x) one or more registration statements shall have been continuously effective and available for the resale of all shares of Common
Stock issuable upon conversion of the Notes (without regard to any limitations on conversions set forth in the Notes), including
the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the Automatic Conversion or (y)
all Conversion Shares issuable pursuant to the terms of this Note and the Other Notes, including the shares of Common Stock issuable
upon conversion of the Conversion Amount that is subject to the Automatic Conversion, shall be eligible for sale without restriction
pursuant to Rule 144 and without the need for registration under any applicable federal or state securities laws; (ii) on each
day during the Equity Conditions Measuring Period, the Common Stock is designated for quotation on the Principal Market or any
other Eligible Market and shall not have been suspended from trading on such exchange or market (other than suspensions of not
more than two (2) days and occurring prior to the applicable date of determination due to business announcements by the Company)
nor shall delisting or suspension by such exchange or market been threatened, commenced or pending either (A) in writing by such
exchange or market or (B) as a result of the Company’s failure to meet the then effective minimum requirements for continued
listing on such exchange or market; (iii) during the Equity Conditions Measuring Period, in the event of an Automatic Conversion
or the transmission to the Company of a Conversion Notice pursuant to Section 3(c)(i), the Company shall have delivered Conversion
Shares pursuant to the terms of this Note and the Other Notes to the holders on a timely basis as set forth in Section 3(c) hereof
(and analogous provisions under the Other Notes); (iv) the shares of Common Stock issuable upon conversion of the Conversion Amount
that is subject to the Automatic Conversion requiring the satisfaction of the Equity Conditions may be issued in full without
violating Section 3(d) hereof and the rules or regulations of the Principal Market or any other applicable Eligible Market; (v)
during the Equity Conditions Measuring Period, the Company shall not have failed to timely make any payments within five (5) Business
Days of when such payment is due pursuant to any Transaction Document; (vi) during the Equity Conditions Measuring Period, there
shall not have occurred either (A) the public announcement of a pending, proposed or intended Fundamental Transaction which has
not been abandoned, terminated or consummated, (B) an Event of Default or (C) an event that with the passage of time or giving
of notice would constitute an Event of Default; (vii) the Company shall have no knowledge of any fact that would cause (x) one
or more registration statements not to be continuously effective and available for the resale of all shares of Common Stock issuable
upon conversion of the Notes (without regard to any limitations on conversions set forth in the Notes), including the shares of
Common Stock issuable upon conversion of the Conversion Amount that is subject to the Automatic Conversion requiring the satisfaction
of the Equity Conditions or (y) any shares of Common Stock issuable pursuant to the terms of this Note and the Other Notes, including
the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the Automatic Conversion requiring
the satisfaction of the Equity Conditions, not to be eligible for sale without restriction pursuant to Rule 144 and without the
requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act and any applicable
state securities laws; (viii) during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance
with and shall not have breached any provision, covenant, representation or warranty of any Transaction Document; (ix) the Holder
shall not be in possession of any material, nonpublic information received from the Company, any Subsidiary or its respective
agent or affiliates; and (x) the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the
Automatic Conversion requiring the satisfaction of the Equity Conditions are duly authorized and listed and eligible for trading
without restriction on an Eligible Market.


 


(o) “Equity
Conditions Failure” means that on any day during the applicable Equity Conditions Measuring Period, the Equity Conditions
have not each been satisfied (or waived in writing by the Holder).


 


(p) “Equity
Conditions Measuring Period” means each day during the period beginning twenty (20) Trading Days prior to the applicable
date of determination and ending on and including the applicable date of determination.


 


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


 






    	 	A-24	 



     


    

 


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


 





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


 


(t) “GAAP”
means United States generally accepted accounting principles, consistently applied.


 






    	 	A-25	 



     


    

 


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


 


(v)“Guaranty
Agreements” means (A) that certain Guaranty Agreement dated as of April 23, 2015, made by Ener-Core Power, Inc. in favor
of the buyers that are party to that certain Securities Purchase Agreement, dated as of April 22, 2015 by and among the Company
and the investors listed on the signature pages thereto, as amended from time to time and (B) that certain Guaranty Agreement
dated as of November 23, 2016 made by Ener-Core Power, Inc. in favor of the buyers that are party to that certain Securities Purchase
Agreement, dated as of November 23, 2016 by and among the Company and the investors listed on the signature pages thereto, as
amended from time to time.


 


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


 


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


 


(y)“Lead
Investor” means Empery Asset Master, Ltd.


 


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


 


(aa)“Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) trade payables incurred in the
ordinary course of business consistent with past practice, (iii) Indebtedness incurred by the Company that is made expressly subordinate
in right of payment to the Indebtedness evidenced by this Note, as reflected in a written agreement acceptable to the Required
Holders and approved by the Required Holders in writing, and which Indebtedness does not provide at any time for (a) the payment,
prepayment, repayment, repurchase or defeasance, directly or indirectly, of any principal or premium, if any, thereon until ninety-one
(91) days after the Maturity Date or later and (b) total interest and fees at a rate in excess of twelve percent (12.0%) per annum,
(iv) Indebtedness secured by Permitted Liens described in clauses (iv) of the definition of Permitted Liens, (v) deemed Indebtedness
arising from one or more operating leases, including, without limitation, the leases for one or more test turbines from Dresser-Rand,
but only if such lease, if secured, is secured solely by such test turbine, (vi) Indebtedness incurred pursuant to the Backstop
Agreement, (vii) Indebtedness by the notes issued pursuant to the Securities Purchase Agreement dated as of September 1, 2016
by and among the Company and the investors thereto, as subsequently amended, restated or modified thereafter), (viii) the Additional
Notes, provided that the Indebtedness evidenced by the Additional Notes is not increased, refinanced, amended, changed or modified
on or after the respective first date of issuance of such Additional Notes and (ix) the guarantees pursuant to the Guaranty Agreements.


 






    	 	A-26	 



     


    

 


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


 


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


 


(dd)“Principal
Market” means the OTCQB.


 


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


 


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


 






    	 	A-27	 



     


    

 


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


 


(hh)[Intentionally
omitted.]


 


(ii) [Intentionally
omitted.]


 


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


 


(kk)“Required
Holders” means (i) the holders of Notes representing at least a majority of the aggregate principal amount of the Notes
then outstanding and shall include the Lead Investor so long as the Lead Investor or any of its Affiliates holds any Notes and
(ii) the Collateral Agent.


 


(ll)“SEC”
means the United States Securities and Exchange Commission.


 


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


 


(nn)“Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
principal Eligible Market with respect to the Common Stock that is in effect on the date of receipt of an applicable Conversion
Notice.


 


(oo) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.


 


(pp)“Subscription
Date” means November 23, 2016.


 


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


 


(rr)“Trading
Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common
Stock is then traded.


 


(ss)[Intentionally omitted.] 


 


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


 


[Signature
Page Follows]


  




    	 	A-28	 



     


    

 


 


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


 


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




  




     


     


    

 


EXHIBIT
I



Ener-Core, inc.


  


CONVERSION
NOTICE


 


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


 





Date of
Conversion:  ______________________________________________________


         


Aggregate
Conversion Amount to be converted: ______________________________________________________


 


Please confirm the following information:


 


Conversion
Price:  ______________________________________________________


 


Number
of shares of Common Stock to be issued:  __________________________________________________


 


Please issue the Common Stock into which the Note is being converted
in the following name and to the following address:


Issue
to: ______________________________________________________


                 ______________________________________________________


                 ______________________________________________________


 


Facsimile
Number and Electronic Mail:  ______________________________________________________


 


Authorization:
 ______________________________________________________


 


By:  ______________________________________________________


 


Title:
 ______________________________________________________


 


Dated:
 ______________________________________________________


 


Account
Number:  ______________________________________________________


  (if
electronic book entry transfer)


 


Transaction
Code Number:  ______________________________________________________


  (if
electronic book entry transfer)


  






     


     


    

 


ACKNOWLEDGMENT


 


The
Company hereby acknowledges this Conversion Notice and hereby directs VStock Transfer, LLC to issue the above indicated number
of shares of Common Stock in accordance with the Transfer Agent Instructions dated November 23, 2016 from the Company and acknowledged
and agreed to by VStock Transfer, LLC.


  





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