Exhibit 10.1


 


EXCHANGE AGREEMENT


 


THIS EXCHANGE AGREEMENT
(the “Agreement”) is dated this 29th day of November, 2016, by and among NXT-ID, INC., a Delaware corporation
(the “Company”), all of the subsidiaries of the Company that are party to the Agreement (collectively, “Subsidiaries”),
and the parties identified on Schedule A hereto (each a “Holder” collectively the “Holders”).


 


WHEREAS, the Holders beneficially
own and hold certain Secured Subordinated Promissory Notes, as set forth on Exhibit A hereto (the “Original Securities”);
and


 


WHEREAS, the Original Securities
were originally issued on July 25, 2016, (“Original Issue Date”) to LogicMark Investment Partners, LLC, a Delaware
limited liability company (“Original Holder”) and were assigned to the Holders by the Original Holder simultaneously
with the entry of the parties into this Agreement.


 


WHEREAS, the Holders desire
to exchange (the “Exchange”) the Original Securities for new Secured Subordinated Promissory Notes (the “Exchange
Notes”) and warrants convertible into common stock of the Company (the “Warrants”) (in the aggregate,
the Exchange Notes and the Warrants shall be referred to as the “Exchange Securities”) of the Company as set
forth and memorialized on Exhibit B hereto, and the Company desires to issue the Exchange Securities in exchange for the
Original Securities, all on the terms and conditions set forth in this Agreement in reliance on the exemption from registration
provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).


 


WHEREAS, the Original Securities
are, and the Exchange Notes will be, subordinated to the Loan and Security Agreement entered into by and between the Company and
the parties signatory thereto (the “Senior Lenders”), dated July 25, 2016.


 


NOW, THEREFORE, in consideration
of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company and the Holders hereby agree as follows:


 


Section 1. Exchange.
Subject to and upon the terms and conditions set forth in this Agreement, the Holders agree to surrender to the Company the Original
Securities and, in exchange therefore, the Company shall issue to the Holders the Exchange Securities.


 


1.1 Closing.
On the Closing Date (as defined below), the Company will issue and deliver (or cause to be issued and delivered) the Exchange Securities
to the Holders, or in the name of a custodian or nominee of the Holders, or as otherwise requested by the Holders in writing, and
the Holders will surrender to the Company the Original Securities. The closing of the Exchange shall occur as on the date hereof,
or as soon thereafter as the parties may mutually agree in writing (the “Closing Dates”), subject to the provisions
of Section 4 and Section 5 herein.


 






    


     

    

 


1.2 Section
4(a)(2). Assuming the accuracy of the representations and warranties of each of the Company and the Holders set forth in Sections
2 and 3 of this Agreement, the parties acknowledge and agree that the purpose of such representations and warranties is, among
other things, to ensure that the Exchange qualifies as an exchange of securities under Section 4(a)(2) of the Securities Act.


 


1.3 Legal
Opinion. At the Closing the Company shall have a legal opinion of Company Counsel, substantially in the form of Exhibit
C attached hereto. Such opinion shall opine on the availability of an exemption from registration under the 1933 Act as it
relates to the Exchange, the tacking of the holding period of the Exchange Securities to the Original Issue Date under Rule 144
and other matters reasonably requested by the Holders;


 


Section 2. Representations
and Warranties of the Company. The Company represents and warrants to the Holders that:


 


2.1 Organization
and Qualification. The Company and each of the subsidiaries of the Company (the “Subsidiaries”) is an entity
duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation
or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as
currently conducted. Neither the Company, nor any Subsidiary is in violation or default of any of the provisions of its respective
certificate or certificates of incorporation, bylaws or other organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure
to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material
adverse effect on the legality, validity or enforceability of this Agreement or any documents executed in connection herewith (the
“Transaction Documents”), (ii) a material adverse effect on the results of operations, assets, business, prospects
or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect
on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document
(any of (i), (ii) or (iii), a “Material Adverse Effect”) and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 






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2.2 Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith
or therewith other than in connection with the Required Approvals (as defined below). This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.


 


2.3 Issuance
of Exchange Securities. The issuance of the Exchange Securities is duly authorized and, upon issuance in accordance with the
terms hereof, the Exchange Securities shall be validly issued, fully paid and non-assessable. The shares of Common Stock issued
upon conversion or exercise of the Exchange Securities (the “Underlying Shares”), when issued and delivered
in accordance with the terms of the Exchange Securities, will be duly and validly issued, fully paid and non-assessable, free and
clear of all Liens (as defined below) imposed by the Company, other than restrictions on transfer under applicable state and federal
securities laws. The shares of Common Stock issued upon exercise of the Exchange Securities, when issued and delivered in accordance
with the terms of the Exchange Securities for the consideration expressed therein, will be duly and validly issued, fully paid
and non-assessable, free and clear of all Liens imposed by the Company, other than restrictions on transfer under applicable state
and federal securities laws. Upon issuance in accordance herewith, the issuance by the Company of the Exchange Securities is exempt
from the registration requirements of the Securities Act under Section 4(a)(2) of the Securities Act and all of the shares of Common
Stock issuable upon conversion of the Exchange Securities and upon exercise of the Exchange Securities will be freely transferable
and freely tradable by each Holder without restriction pursuant to Rule 144 of the Securities Act, assuming the Holder is not an
Affiliate and the holding period requirements of Rule 144 have been met. The shares of Common Stock issuable upon conversion or
exercise, as applicable, of the Exchange Securities shall not bear any restrictive or other legends or notations. The Company has
reserved from its duly authorized capital stock a number of shares of Common Stock for issuance of the shares underlying the Exchange
Securities at least equal to 100% of the Required Minimum on the date hereof. “Required Minimum” means, as of
any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to
the Transaction Documents, including any shares of Common Stock issuable upon exercise in full of all Exchange Securities or conversion
in full of all Exchange Securities (including shares of Common Stock issuable as payment of interest on the Exchange Securities),
ignoring any conversion or exercise limits set forth therein, and assuming that the Conversion Price or Exercise Price, as applicable,
is at all times on and after the date of determination 75% of the then Conversion Price or Exercise Price, as applicable, on the
Trading Day immediately prior to the date of determination.


 






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2.4 No Conflicts.
The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party,
the issuance of the Exchange Securities and the consummation by it of the transactions contemplated hereby and thereby do not and
will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or certificates
of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any options, contracts, agreements,
liens, security interests, or other encumbrances (“Liens”) upon any of the properties or assets of the Company
or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company
or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.


 


2.5 Acknowledgment
Regarding the Exchange. The Company acknowledges and agrees that each Holder is acting solely in the capacity of an arm’s
length third party with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges the
Holders are not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement
and the transactions contemplated hereby, and any advice given by the Holders or any of their representatives or agents in connection
with this Agreement is merely incidental to the Exchange.


 


2.6 No Commission;
No Other Consideration. The Company has not paid or given, and has not agreed to pay or give, directly or indirectly, any commission
or other remuneration for soliciting the Exchange. The Exchange Securities are being issued exclusively for the exchange of the
Original Securities and no other consideration has or will be paid for the Exchange Securities.


 






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2.7 4(a)(2)
Representation. The Company has not, nor has any person acting on its behalf, directly or indirectly made any offers or sales
of any security or solicited any offers to buy any security under circumstances that would cause the Exchange and the issuance
of the Exchange Securities pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the
Securities Act which would prevent the Company from delivering the Exchange Securities to the Holders pursuant to Section 4(a)(2)
of the Securities Act, nor will the Company take any action or steps that would cause the Exchange, issuance and delivery of the
Exchange Securities to be integrated with other offerings to the effect that the delivery of the Exchange Securities to the Holders
would be seen not to be exempt pursuant to Section 4(a)(2) of the Securities Act.


 


2.8 No Third-party
Advisors. Other than legal counsel, the Company has not engaged any third parties to assist in the solicitation with respect
to the Exchange.


 


2.9 SEC Reports;
Financial Statements.  The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act of 1934, as amended (the “Exchange Act”),
including pursuant to Section 13(a) or 15(d) of the Exchange Act, for the two years preceding the date hereof (or such shorter
period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension.  As of their respective dates, the SEC Reports complied in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, 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 financial statements of the
Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing.  Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved
(“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit
adjustments.


 


2.10 Subsidiaries.  All
of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports.  Other than Liens on the equity
interests of the Subsidiaries held by the Senior Lender, the Holders and the Original Holder, the Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities.  If the Company has no subsidiaries, all other references to the Subsidiaries
or any of them in the Transaction Documents shall be disregarded.


 






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2.11
Filings, Consents and Approvals.  Other than as set forth on Schedule 2.11, the Company is not required
to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court
or other federal, state, local or other governmental authority or any natural person, firm, partnership, association, corporation,
company, trust, business trust or other entity (each, a “Person”) in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the notice and/or application(s)
to each applicable Trading Market for the issuance and the listing of the shares of Common Stock issuable upon conversion of the
Exchange Securities and the shares of Common Stock issuable upon exercise of the Exchange Securities for trading thereon in the
time and manner required thereby, and (ii) the filing of Form D with the SEC and such filings as are required to be made under
applicable state securities laws (collectively, the “Required Approvals”). 


 


2.12 Capitalization. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents.  Other than as set forth in the SEC Reports, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire
any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or any securities of the Company which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or
other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.  No
further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance of the Exchange
Securities.  There are no stockholder agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 


2.13 DTC
Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer
(FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer
(FAST) Program. 


 






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2.14 Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof: (i) there has
been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed in filings made with the SEC, (iii) the Company has not altered
its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its
stockholder or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company
has not issued any equity securities to any officer, director or Affiliate (as defined below), except pursuant to existing Company
stock option plans. The Company does not have pending before the SEC any request for confidential treatment of information. Except
for the issuance of the Exchange Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence
or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, properties, operations, assets or financial condition, that would be required to be disclosed by
the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly
disclosed at least 1 Trading Day prior to the date that this representation is made.


 


2.15 Litigation.  Other
than as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local
or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Exchange Securities or (ii) could, if there were an unfavorable decision,
have or reasonably be expected to result in a Material Adverse Effect.  Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal
or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there
is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer
of the Company.  The SEC has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.


 






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2.16 Labor
Relations.  No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect.  None of the Company’s
or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company
or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their employees are good.  To the knowledge of the
Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term
of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any
other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such
executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing
matters.  The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


2.17 Compliance. Except
as set forth in the SEC Reports, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event
has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it
or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment,
decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule,
ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws
relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor
matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.


 


2.18 Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit.


 






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2.19 Title
to Assets.  The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and
the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries,
(ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance
with GAAP and, the payment of which is neither delinquent nor subject to penalties, (iii) Liens held by the Senior Lender and (iv)
Liens held by the Holders.  Any real property and facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.


 


2.20 Intellectual
Property.  Other than as set forth in the SEC Reports, the Company and the Subsidiaries have, or have rights to use,
all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights as described in the SEC Reports as necessary or required for
use in connection with their respective businesses and which the failure to so have could have a Material Adverse Effect (collectively,
the “Intellectual Property Rights”).  None of, and neither the Company nor any Subsidiary has received
a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is
expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.  Neither the Company
nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written
notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any
Person, except as could not have or reasonably be expected to not have a Material Adverse Effect.  To the knowledge of
the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any
of the Intellectual Property Rights.  The Company and its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


2.21 Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but
not limited to, directors and officers insurance coverage at least equal to the aggregate principal amount of the Exchange Securities.  Neither
the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without
a significant increase in cost.


 






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2.22 Transactions
With Affiliates and Employees.  Except as set forth in the SEC Reports, none of the officers or directors of the
Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case
in excess of $120,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan
of the Company.


 


2.23 Sarbanes-Oxley;
Internal Accounting Controls.  The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the SEC thereunder that are effective as of the date hereof and as of the Closing Dates.  The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The
Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the SEC’s rules and forms.  The Company’s certifying officers
have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of
the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”).  The
Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.  Since
the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the
Exchange Act) that have materially affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries.


 






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2.24 Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiaries to any broker,
financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents.


 


2.25 Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Exchange Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.  The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.


 


2.26 Registration
Rights. Other than as disclosed in the SEC Reports and the Transaction Documents, no Person has any right to cause the Company
to effect the registration under the Securities Act of any securities of the Company or any Subsidiaries.


 


2.27 Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating
such registration.  Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date
hereof, received notice from the OTCBB or any other exchange or quotation service on which the Common Stock is or has been listed
or quoted (the “Trading Market”) to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. Except as set forth in the SEC Reports, the Company is, and has no reason to believe that
it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.


 


2.28 Application
of Takeover Protections.  The Company and the Board of Directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter
documents) or the laws of its state of incorporation that is or could become applicable to the Holders as a result of the Holders
and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation
as a result of the Company’s issuance of the Exchange Securities pursuant to the Exchange.


 






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2.29 Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor any other Person acting on its behalf has provided the Holders or their agents or counsel with any
information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms
that the Holders will rely on the foregoing representation in effecting transactions in securities of the Company.  All
of the disclosure furnished by or on behalf of the Company to the Holders regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct
and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated
by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees
that the Holders make no nor have made any representations or warranties with respect to the transactions contemplated hereby other
than those specifically set forth in Section 3 hereof.


 


2.30 No Integrated
Offering. Assuming the accuracy of the Holders’ representations and warranties set forth in Section 3, neither the Company,
nor any of its Affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security
or solicited any offers to buy any security, under circumstances that would cause the Exchange to be integrated with prior offerings
by the Company for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities
Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company
are listed or designated.


 


2.31 Solvency.
The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing
and amounts of cash to be payable on or in respect of its debt).   The SEC Reports set forth as of the date hereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has
commitments.  For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed
money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y)
all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same, are,
or should be, reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Except as
set forth in the SEC Reports, neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 






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2.32 Tax Status.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign
income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all
taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know
of no basis for any such claim.


 


2.33 Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent
or other person acting on behalf of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person
acting on its behalf of which the Company is aware) which is  in violation of law or (iv) violated in any material respect
any provision of FCPA.


 


2.34 No Disagreements
with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated by the Company
to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is
current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform
any of its obligations under any of the Transaction Documents.


 


2.35 Acknowledgment
Regarding Holders’ Exchange of the Original Securities. The Company acknowledges and agrees that the Holders are
acting solely in the capacity of an arm’s length party with respect to the Transaction Documents and the transactions contemplated
thereby.


 


2.36 Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the issuance or resale of any of the Exchange Securities or the shares of Common Stock into which the Exchange Securities are convertible
or exercisable, as applicable, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the
Exchange Securities or the shares of Common Stock into which the Exchange Securities are convertible or exercisable, as applicable,
or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.


 






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2.37 Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 


2.38 Bank
Holding Company Act.  Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”).  Neither the Company nor any of its Subsidiaries or Affiliates owns
or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five
percent or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.  Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


2.39 Money
Laundering.  The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.


 


Section 3. Representations
and Warranties of the Holders. Each Holder, for itself only represents and warrants, severally and not jointly, to the Company
that:


 


3.1 Ownership
of the Original Securities. The Holder is the legal and beneficial owner of its pro rata portion the Original Securities.
The Holder paid for the Original Securities, and has continuously held the Securities since its purchase. The Holder, individually
or through an affiliate, owns its pro rata portion of the Original Securities outright and free and clear of any options, contracts,
agreements, liens, security interests, or other encumbrances.


 






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3.2 No Public
Sale or Distribution. The Holder is acquiring the Exchange Securities in the ordinary course of business for its own account
and not with a view toward, or for resale in connection with, the public sale or distribution thereof; provided, however, that
by making the representations herein, the Holder does not agree to hold any of the Exchange Securities or the shares of Common
Stock into which such securities are convertible or exercisable, as applicable, for any minimum or other specific term and reserves
the right to dispose of the Exchange Securities and the Underlying Shares at any time in accordance with an exemption from the
registration requirements of the Securities Act and applicable state securities laws. Except as contemplated herein, the Holder
does not presently have any agreement or understanding, directly or indirectly, with any person to distribute, or transfer any
interest or grant participation rights in, the Original Securities or the Exchange Securities.


 


3.3 Accredited
Investor and Affiliate Status. The Holder is an “accredited investor” as that term is defined in Rule 501 of Regulation
D under the Securities Act. The Holder is not, and has not been, for a period of at least three months prior to the date of this
Agreement (a) an officer or director of the Company, (b) an “affiliate” of the Company (as defined in Rule 144) (an
“Affiliate”) or (c) a “beneficial owner” of more than 10% of the common stock (as defined for purposes
of Rule 13d-3 of the Exchange Act).


 


3.4 Reliance
on Exemptions. The Holder understands that the Exchange is being made in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy
of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of
the Holder set forth herein in order to determine the availability of such exemptions and the eligibility of the Holder to complete
the Exchange and to acquire the Exchange Securities.


 


3.5 Information.
The Holder has been furnished with all materials relating to the business, finances and operations of the Company and materials
relating to the Exchange which have been requested by the Holder. The Holder has been afforded the opportunity to ask questions
of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Holder or its representatives
shall modify, amend or affect the Holder’s right to rely on the Company’s representations and warranties contained
herein. The Holder acknowledges that all of the documents filed by the Company with the SEC under Sections 13(a), 14(a) or 15(d)
of the Exchange Act that have been posted on the SEC’s EDGAR site are available to the Holder, and the Holder has not relied
on any statement of the Company not contained in such documents in connection with the Holder’s decision to enter into this
Agreement and the Exchange.


 


3.6 Risk.
The Holder understands that its investment in the Exchange Securities involves a high degree of risk. The Holder is able to bear
the risk of an investment in the Exchange Securities including, without limitation, the risk of total loss of its investment. The
Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision
with respect to the Exchange. There is no assurance that the Exchange Securities or any securities into which the Exchange Securities
may convert will continue to be quoted, traded or listed for trading or quotation on the OTCBB or on any other organized market
or quotation system.


 






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3.7 No Governmental
Review. The Holder understands that no United States federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement in connection with the Exchange or the fairness or suitability of the investment
in the Exchange Securities nor have such authorities passed upon or endorsed the merits of the Exchange Securities.


 


3.8 Organization;
Authorization. The Holder is duly organized, validly existing and in good standing under the laws of its state of formation
and has the requisite organizational power and authority to enter into and perform its obligations under this Agreement.


 


3.9 Validity;
Enforcement. 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.
The execution, delivery and performance of this Agreement by the Holder and the consummation by the Holder of the transactions
contemplated hereby (including, without limitation, the irrevocable surrender of the Original Securities) will not result in a
violation of the organizational documents of the Holder.


 


3.10 Prior
Investment Experience. The Holder acknowledges that it has prior investment experience, including investment in securities
of the type being exchanged, including the Original Securities and the Exchange Securities, and has read all of the documents furnished
or made available by the Company to it and is able to evaluate the merits and risks of such an investment on its behalf, and that
it recognizes the highly speculative nature of this investment.


 


3.11 Tax Consequences.
The Holder acknowledges that the Company has made no representation regarding the potential or actual tax consequences for the
Holder which will result from entering into the Agreement and from consummation of the Exchange. The Holder acknowledges that it
bears complete responsibility for obtaining adequate tax advice regarding the Agreement and the Exchange.


 


3.12 No Registration,
Review or Approval. The Holder acknowledges, understands and agrees that the Exchange Securities are being exchanged hereunder
pursuant to an exchange offer exemption under Section 4(a)(2) of the Securities Act.


 


Section 4. Conditions
Precedent to Obligations of the Company. The obligation of the Company to consummate the transactions contemplated by this
Agreement is 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 Holders with prior written notice
thereof:


 


4.1 Delivery.
The Holders shall have delivered to the Company the Original Securities.


 






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4.2 No Prohibition.
No order of any court, arbitrator, or governmental or regulatory authority shall be in effect which purports to enjoin or restrain
any of the transactions contemplated by this Agreement; and


 


4.3 Representations.
The accuracy in all material respects when made and on the applicable Closing Dates of the representations and warranties of the
Holders contained herein (unless as of a specific date therein);


 


Section 5. Conditions
Precedent to Obligations of the Holders. The obligation of the Holders to consummate the transactions contemplated by this
Agreement is subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holders’
sole benefit and may be waived by the Holders at any time in its sole discretion by providing the Company with prior written notice
thereof:


 


5.1 No order
of any court, arbitrator, or governmental or regulatory authority shall be in effect which purports to enjoin or restrain any of
the transactions contemplated by this Agreement;


 


5.2 the representations
and warranties of the Company (i) shall be true and correct in all material respects when made and on the applicable Closing Dates
(unless as of a specific date therein) for such representations and warranties contained herein that are not qualified by “materiality”
or “Material Adverse Effect” and (ii) shall be true and correct when made and on the applicable Closing Dates (unless
as of specific date therein) for such representations and warranties contained herein that are qualified by “materiality”
or “Material Adverse Effect”;


 


5.3 all obligations,
covenants and agreements of the Company required to be performed at or prior to the applicable Closing Dates shall have been performed;
and


 


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


 


Section 6. Holding Period.
For the purposes of Rule 144 of the Securities Act, the Company acknowledges that the holding period of the Exchange Securities
may be tacked on the holding period of the Original Securities, and the Company agrees not to a position contrary to this Section
6.


 






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Section 7. Other Agreements
between the Parties.


 


7.1 At
any time during the period commencing from the date hereof and ending at such time that all of the Exchange Securities and Underlying
Shares may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction
or limitation pursuant to Rule 144, if the Company shall fail for any reason to satisfy the current public information requirement
under Rule 144(c) (a “Public Information Failure”) then, in addition to such Holder’s other available
remedies, the Company shall pay to an Holder, in cash, as partial liquidated damages and not as a penalty, by reason of any such
delay in or reduction of its ability to sell the Securities, an amount in cash equal to two percent (2.0%) of the aggregate principal
amount of Exchange Notes of such Holder’s Exchange Securities on the day of a Public Information Failure and on every thirtieth
(30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such
Public Information Failure is cured and (b) such time that such public information is no longer required  for the Holders
to transfer the Underlying Shares pursuant to Rule 144.  The payments to which an Holder shall be entitled pursuant to this
Section 4.3(b) are referred to herein as “Public Information Failure Payments.”  Public Information Failure
Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments
are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information
Failure Payments is cured.  In the event the Company fails to make Public Information Failure Payments in a timely manner,
such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until
paid in full. Nothing herein shall limit such Holder’s right to pursue actual damages for the Public Information Failure,
and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief.


 


7.2 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined
in Section 2 of the Securities Act) that would be integrated with the Exchange of the Original Securities in a manner that would
require the registration under the Securities Act of the sale of the Exchange Securities or that would be integrated with the
offer of the Exchange Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent
transaction.




 


7.3 The
Company shall (a) by 9:00 a.m. (New York City time) on the Trading Day immediately following the date hereof, issue a press release
disclosing the material terms of the transactions contemplated hereby and (b) file a Current Report on Form 8-K, including the
Transaction Documents as exhibits thereto, with the Commission on or prior to the second (2nd) Trading Day immediately following
the date hereof. From and after the issuance of such press release the Company represents to the Holders that it shall have publicly
disclosed all material, non-public information delivered to any of the Holders by the Company or any of its Subsidiaries, or any
of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction
Documents. The Company and each Holder shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Holder shall issue any such press release nor otherwise make any such public
statement without the prior consent of the Company, with respect to any press release of any Holder, or without the prior consent
of each Holder, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed,
except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior
notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name
of any Holder, or include the name of any Holder in any filing with the Commission or any regulatory agency or Trading Market,
without the prior written consent of such Holder, except: (a) as required by federal securities law in connection with the filing
of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations,
in which case the Company shall provide the Holders with prior notice of such disclosure permitted under this clause (b).


 






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7.3 Indemnification
of Holders. Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Holder and its
directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who
controls such Holder (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling
persons (each, a “Holder Party”) harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any such Holder Party may suffer or incur as a result of or relating to
(a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in
the other Transaction Documents or (b) any action instituted against the Holder Parties in any capacity, or any of them or
their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Holder Party, with respect to
any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Holder
Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Holder Party may have with any such stockholder or any violations by such Holder Party of state or federal securities
laws or any conduct by such Holder Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If
any action shall be brought against any Holder Party in respect of which indemnity may be sought pursuant to this
Agreement, such Holder Party shall promptly notify the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the Holder Party. Any Holder Party shall have the
right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Holder Party except to the extent that (i) the employment thereof has been
specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume
such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the position of such Holder Party, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will
not be liable to any Holder Party under this Agreement (y) for any settlement by an Holder Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to
the extent that a loss, claim, damage or liability is attributable to any Holder Party’s breach of any of the
representations, warranties, covenants or agreements made by such Holder Party in this Agreement or in the other Transaction
Documents. The indemnification required by this Section 4.10 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or are incurred. The indemnity
agreements contained herein shall be in addition to any cause of action or similar right of any Holder Party against the
Company or others and any liabilities the Company may be subject to pursuant to law.


 


7.4 The
Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents
in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.


 


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


 






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7.6 Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim,
and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or
at any time hereafter in force, in connection with any claim, action or proceeding that may be brought by any Holder in order
to enforce any right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in any
Transaction Document, it is expressly agreed and provided that the total liability of the Company under the Transaction
Documents for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law
(the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or
default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be
obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of
interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official
governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the
Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such application is
precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the
Company to any Holder with respect to indebtedness evidenced by the Transaction Documents, such excess shall be applied by
such Holder to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling
such excess to be at such Holder’s election.


 


7.7 Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder under any Transaction Document are
several and not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the
performance or non-performance of the obligations of any other Holder under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. Each Holder shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it
shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. Each
Holder has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Holder and its respective counsel have chosen to communicate with the
Company through Grushko & Mittman, P.C. (“G&M”). G&M does not represent any of the Holders and
only represents Alpha Capital Anstalt. The Company has elected to provide all Holders with the same terms and Transaction
Documents for the convenience of the Company and not because it was required or requested to do so by any of the Holders.


 






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7.8 Issuances
of Common Stock. At any time during the period commencing from the date hereof and ending at such time that all of the
Exchange Securities and Underlying Shares are no longer held by the Holders, the Company shall not issue any shares of its
common stock at a price below $3.00 without the consent of the Holders of a majority of then outstanding Exchange Notes.


 


7.9 The
Company shall at all times reserve not less than 150% of the shares necessary to convert the Exchange Notes.


 


7.10 The
Company shall at all times maintain a listing for its common stock on a trading market and ensure not regulatory or judicial stop
orders are entered against trading its common stock.


 


7.11 The
Company shall ensure that no monetary judgment, writ or similar final process shall be entered or filed against the Company, any
subsidiary or any of their respective property or other assets for more than $150,000, and such judgment, writ or similar final
process shall remain unvacated, unbonded or unstayed for a period of 45 calendar days.


 


Section 8. Governing
Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be construed under the laws of the state of New York, without
regard to principles of conflicts of law or choice of law that would permit or require the application of the laws of another jurisdiction.
The Company and the Holders each hereby agrees that all actions or proceedings arising directly or indirectly from or in connection
with this Agreement shall be litigated only in the Supreme Court of the State of New York or the United States District Court for
the Southern District of New York located in New York County, New York. The Company and the Holders each consents to the exclusive
jurisdiction and venue of the foregoing courts and consents that any process or notice of motion or other application to either
of said courts or a judge thereof may be served inside or outside the State of New York or the Southern District of New York by
generally recognized overnight courier or certified or registered mail, return receipt requested, directed to such party at its
or his address set forth below (and service so made shall be deemed “personal service”) or by personal service or in
such other manner as may be permissible under the rules of said courts. THE COMPANY AND THE HOLDERs EACH HEREBY WAIVES ANY RIGHT
TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS AGREEMENT.


 


Section 9. Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile
signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if
the signature were an original, not a facsimile signature.


 


Section 10. Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.


 






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Section 11. Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


Section 12. No Strict
Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.


 


Section 13. Entire Agreement;
Amendments. This Agreement supersedes all other prior oral or written agreements between the Holders, the Company, their affiliates
and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced
herein contain the entire understanding of the parties with respect to the matters covered herein and therein. No provision of
this Agreement may be amended other than by an instrument in writing signed by the Company and the Holders. No provision hereof
may be waived other than by an instrument in writing signed by the party against whom enforcement is sought.


 


Section 14. Notices.
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: (a) upon receipt, when delivered personally; (b) upon receipt, when sent
by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party); or (c) one calendar day (excluding Saturdays, Sundays, and national banking holidays) after deposit with an overnight courier
service, in each case properly addressed to the party to receive the same.


 


The addresses and facsimile numbers for such
communications shall be:


 


If to the Company:


 


Nxt-ID, Inc.


285 North Drive, Suite D


Melbourne, FL 32934


Attn: Gino M. Pereira, Chief Executive Officer


 


If to the Holders:


 


to the addresses set forth on Schedule
A.


 


or to such other address and/or facsimile number
and/or to the attention of such other person as the recipient party has specified by written notice given to each other party five
(5) days prior to the effectiveness of such change.


 






    22


     

    

 


Section 15. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and
assigns, including any purchasers of the Exchange Securities. The Holders may assign some or all of its rights hereunder without
the consent of the Company, in which event such assignee shall be deemed to be the Holder hereunder with respect to such assigned
rights.


 


Section 16. No Third
Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.


 


Section 17. Survival
of Representations. The representations and warranties of the Company and the Holders contained in Sections 2 and 3, respectively,
will survive the closing of the transactions contemplated by this Agreement.


 


Section 18. Further
Assurances. Each party 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 Agreement and the consummation of the transactions contemplated
hereby.


 


[Signature Page Follows]


 




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IN WITNESS WHEREOF, the parties have executed
this Exchange Agreement as of the date first written above.


 





	NXT-ID, INC.	 
	 	 	 
	By:	 	 
	Name:	Gino M. Pereira	 
	Title:	Chief Executive Officer	 
	 	 	 
	3D-ID, LLC	 
	 	 	 
	By:	 	 
	Name:	Gino M. Pereira	 
	Title:	Manager	 
	 	 	 
	Logicmark, LLC	 
	 	 	 
	By:	 	 
	Name:	Gino M. Pereira	 
	Title:	Manager	 




 


[Company signature page to the Exchange Agreement]


 






    24


     

    

 


IN WITNESS WHEREOF, the parties have executed
this Exchange Agreement as of the date first written above.


 


HOLDER
NAME:


 


 





 



 





	By:	 	 
	Name:	 	 
	Title:	 	 
	 	 	 
	Address:	 
	 	 	 
	 	 	 
	 	 	 
	Fax:	 	 
	 	 	 
	 	 	 
	Email:	 	 
	 	 	 
	 	 	 
	 	 	 




 


[Holder signature page to the Exchange Agreement]


 






    25


     

    

 


 


SCHEDULE A


 


Holders


 


 


 


 




    26


     

    

 


EXHIBIT A


 


Convertible Notes


 


 


 


 










    27


     

    

 










 







EXHIBIT B


 


Form of and Schedule of Exchanged Securities


 


 


 


 




    28


     

    

 


EXHIBIT C


 


Form of Legal Opinion


 


 


 


 


29