Exhibit 4.4


 


WAIVER


 


This WAIVER
(the “Waiver”), dated as of November 1, 2017, is made by the investor listed on the signature page attached
hereto (the “Holder”). Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the November 2016 SPA (as defined below), as applicable.


 


RECITALS


 


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


 


B. Reference
is made to that certain Securities Purchase Agreement dated as of September 19, 2017, by and among the Company and the investors
listed on the signature pages attached thereto (as amended, restated, modified or joined from time to time, the “September
2017 SPA”), pursuant to which the Company issued convertible senior secured promissory notes in an aggregate principal
amount of approximately $0.56 million and related warrants to purchase up to an aggregate of 220,000 shares of the Company’s
Common Stock;


 


C. In
order to support its working capital needs, the Company desires to issue additional convertible senior secured promissory notes
pursuant to the September 2017 SPA in an aggregate principal amount of up to $444,445 (the “Additional September 2017
Notes”) and related warrants to purchase up to an aggregate of 177,778 shares of the Company’s Common Stock (the
“Additional September 2017 Warrants”) and the Holder desires to waive the application of certain provisions
in the November 2016 SPA and November 2016 Notes in connection with the issuance of the Additional September 2017 Notes and Additional
September 2017 Warrants; and


 


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


 


AGREEMENT


 


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


 


ARTICLE I


SECURITIES PURCHASE
AGREEMENT


 


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


 






    


     


    

 


ARTICLE II


NOTES


 


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


 


article
iII

MISCELLANEOUS


 


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


 


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


 


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


 


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


 


[Signature Page Follows]


 




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


 





	 	HOLDER:	 
	 	 	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 




 


 





Signature
Page to Waiver—September 2017


 


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