Exhibit 10.1


 


EXCHANGE
AGREEMENT


 


THIS
EXCHANGE AGREEMENT (the “Agreement”) is dated March 8, 2017, by and among InterCloud Systems, Inc., a Delaware
corporation (the “Company”), all of the subsidiaries of the Company (collectively, “Subsidiaries”),
and the parties identified on Schedule A hereto (each a “Holder” collectively the “Holders”).


 


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


 


WHEREAS,
the Original Securities were originally issued on December 29, 2015, (“Original Issue Date”) to a financial
institution that is not an affiliate of the 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 Convertible Promissory Notes
(the “Exchange Notes”) of the Company as set forth and memorialized on Exhibit B hereto, and the Company
desires to issue the Exchange Notes 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”).


 


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 Notes.


 


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 Notes 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 3(a)(9). 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 3(a)(9) 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 Notes 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 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.


 


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 of 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.


 



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2.3
Issuance of Exchange Notes. The issuance of the Exchange Notes is duly authorized and, upon issuance in accordance with
the terms hereof, the Exchange Notes shall be validly issued, fully paid and non-assessable. The shares of Common Stock issued
upon conversion or exercise of the Exchange Notes (the “Underlying Shares”), when issued and delivered in accordance
with the terms of the Exchange Notes, 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 of the Company (the “Common Stock”) issued upon exercise of the Exchange Notes,
when issued and delivered in accordance with the terms of the Exchange Notes 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 Notes 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 Notes and upon exercise of the Exchange Notes
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 Notes 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 Notes at least equal to 100% of the Required Minimum on the date hereof. “Required
Minimum” means, as of any date, at least million (2,000,000) shares of Common Stock; provided, however, after a reverse
split by the Company to be effected on or around March 31, 2017, such amount shall be equal to fifty million (50,000,000) shares
of Common Stock.


 


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 Notes 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 (a “Material Adverse Effect”).


 






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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 Notes are being issued exclusively
for the exchange of the Original Securities and no other consideration has or will be paid for the Exchange Notes.


 


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 Notes 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 Notes 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 Notes to be integrated with other offerings to the effect that the delivery of the Exchange Notes 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.


 



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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.


 


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 Notes and
the shares of Common Stock issuable upon exercise of the Exchange Notes 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”). 


 






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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 Notes.  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. 


 


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 Notes 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.


 



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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 Notes 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.


 


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.


 



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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.


 


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.


 



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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 Notes.  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.


 


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.


 



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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.


 


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
Notes, 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.


 



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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 Notes pursuant to the Exchange.


 


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.


 



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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.


 


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.


 



    	 	12	 



     


    

 


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 Notes or the shares of Common Stock into which the Exchange
Notes are convertible or exercisable, as applicable, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases
of, any of the Exchange Notes or the shares of Common Stock into which the Exchange Notes 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.


 


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.


 


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.


 



    	 	13	 



     


    

 


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.


 


2.40
Purchase Premium. The Company acknowledges that the Holder has paid a premium of $50,000 over the aggregate principal amount
of the Exchange Note and that the Company may pay the premium to the Holder in Common Stock or cash, at the Company’s discretion.
For the avoidance of doubt and notwithstanding anything contained to the contrary in any of the Transaction Documents, all payments
of the premium shall be paid, at the Company’s option, in shares of Common Stock or in cash to the Holder.


 


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 Original 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.


 


3.2
No Public Sale or Distribution. The Holder is acquiring the Exchange Notes 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 Notes 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 Notes 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 Notes.


 



    	 	14	 



     


    

 


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 Notes.


 


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 Notes involves a high degree of risk. The Holder is able
to bear the risk of an investment in the Exchange Notes 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 Notes or any securities into which the Exchange Notes 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.


 


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 Notes nor have such authorities passed upon or endorsed the merits of the Exchange
Notes.


 



    	 	15	 



     


    

 


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 Notes, 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 Notes 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.


 


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


 



    	 	16	 



     


    

 


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 Notes 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 Notes may be tacked on the holding period of the Original Securities, and the Company agrees not to a position
contrary to this Section 6.


 



    	 	17	 



     


    

 


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 Notes 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) (if the Company files for an extension and files its periodic reports within
the applicable grace period, it shall not be considered a failure to file periodic reports hereunder) (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 Underlying Shares, an amount in cash equal to one percent (1.0%) of the aggregate principal amount of
Exchange Notes of such Holder’s Exchange Notes 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 a Holder shall be entitled
pursuant to this Section 7.1 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 Notes or that would be integrated
with the offer of the Exchange Notes 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.


 



    	 	18	 



     


    

 


7.3 Public
Announcement. 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).


 



    	 	19	 



     


    

 


7.4 Indemnification
of Holders. Subject to the provisions of this Section 7.4, 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 7.4 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.


 


7.5 Share
Reserve. 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.


 


7.6 Replacement
of Securities. If any certificate or instrument evidencing any of the Exchange Notes 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 Exchange Notes.


 



    	 	20	 



     


    

 


7.7 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.


 


7.8 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.


 


7.9
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 Notes 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 $[___] without the consent of the Holders of a majority of then outstanding Exchange Notes.


 


7.10
The Company shall at all times reserve not less than two million (2,000,000) of the shares necessary to convert the Exchange
Notes; provided, however, after a reverse split of its shares by the Company to be effected on or around March 31, 2017, such
reserve amount shall equal fifty million (50,000,000) shares of Common Stock of the Company.


 



    	 	21	 



     


    

 


7.11
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.


 


7.12
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.


 


7.14
At the Closing Dates, the Company shall be responsible for and shall pay up to $25,000 of legal fees incurred by the Holder
with respect to the Transaction Documents.


 


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.


 


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.


 



    	 	22	 



     


    

 


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:


 


InterCloud
Systems, Inc. 


1030
Broad Street, Suite 102


Shrewsbury,
NJ 07702


Attn:
Chief Financial 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.


 


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 Notes. 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]





 






    	 	23	 



     


    

 


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


 


	INTERCLOUD
SYSTEMS, INC.





	 
	 	 
	By:		 
	Name:	 	 
	Title:	Chief
    Executive Officer 	 
	 
	 	 
	AW
    Solutions, inc.	 
	

	 	 
	By:		 
	Name:	 	 
	Title:	Chief
    Executive Officer 	 





 


[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


 


	Holder	Principal
    Amount of Notes Held	Address
	 	 	 


  






     


     

    

 


Exhibit
A


 


Convertible
Notes





 


	Notes	Face Value	Interest	Date
	 	 	 	 



 






     


     

    

 


EXHIBIT
B


 


Form
of and Schedule of Exchanged Securities


 









     


     

    

 


EXHIBIT
C


  


Form
of Legal Opinion


 


 


29