Exhibit 10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This SECURITIES
PURCHASE AGREEMENT (the “Agreement”), dated as of October 14, 2015, is by and among Rock Creek Pharmaceuticals,
Inc., a Delaware corporation with offices located at 2040 Whitfield Ave., Ste. 300, Sarasota Florida 34240 (the “Company”),
and each of the investors listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively,
the “Buyers”).


 


RECITALS


 


A.          The
Company and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation
D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the 1933 Act.


 


B.           The
Company has authorized a new series of senior convertible notes of the Company, in the aggregate original principal amount of $20,000,000,
substantially in the form attached hereto as Exhibit A (the “Notes”), which Notes shall be convertible
into shares of Common Stock (as defined below) (the shares of Common Stock issuable pursuant to the terms of the Notes, including,
without limitation, upon conversion or otherwise, collectively, the “Conversion Shares”), in accordance with
the terms of the Notes.


 


C.           Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, a Note in the
aggregate original principal amount set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers.


 


D.           At
the Closing, the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit
B (the “Registration Rights Agreement”), pursuant to which the Company has agreed to provide certain
registration rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933
Act and the rules and regulations promulgated thereunder, and applicable state securities laws.


 


E.           The
Notes and the Conversion Shares are collectively referred to herein as the “Securities.”


 


F.           The
Notes will rank senior to all outstanding and future indebtedness of the Company, and its Subsidiaries (as defined below) (other
than Permitted Indebtedness (as defined in the Notes) secured by Permitted Liens (as defined in the Notes)) and will be secured
by a first priority perfected security interest in cash held in certain accounts of the Company as described in the Note (each,
a “Master Restricted Account”), pursuant to certain deposit account control agreements, in form and substance
acceptable to each Buyer, duly executed by the Company and each depositary bank (each, an “Control Account Bank”)
in which each such account is maintained in the form attached hereto as Exhibit C (collectively, the “Control
Account Agreements”).


 


G.           The
Company has engaged Maxim Group LLC as its exclusive placement agent (the “Placement Agent”) for the offering
of the Securities on a “best efforts” basis.


 




     


     

    

 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:


 


1.          PURCHASE
AND SALE OF NOTES.


 


(a)          Purchase
of Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall
issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date
(as defined below) a Note in the original principal amount as is set forth opposite such Buyer’s name in column (3) on the
Schedule of Buyers


 


(b)          Closing.
The closing (the “Closing”) of the purchase of the Notes by the Buyers shall occur at the offices of Kelley
Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The date and time of the Closing (the “Closing Date”)
shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections
6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York,
New York are authorized or required by law to remain closed.


 


(c)          Purchase
Price. The aggregate purchase price for the Notes to be purchased by each Buyer (the “Purchase Price”) shall
be the amount set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers.


 


(d)          Form
of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of the lead Buyer,
the amounts withheld pursuant to Section 4(g)) to the Company for the Notes to be issued and sold to such Buyer at the Closing,
by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the
Company shall deliver to each Buyer a Note in the aggregate original principal amount as is set forth opposite such Buyer’s
name in column (3) of the Schedule of Buyers duly executed on behalf of the Company and registered in the name of such Buyer or
its designee.


 


(e)          Existing
Warrant Partial Waiver. Each Buyer that is also holder of any of those certain Warrants to Purchase Common Stock, dated June
19, 2015 (collectively, the “Existing Warrants”), hereby waives, in part, on behalf of such Buyer (and not on
behalf of any other Buyer or other holder of Existing Warrants) any adjustment to the exercise price of such Existing Warrants
as a result of the issuance of the Notes and the Warrants (in each case, as in effect as of the Closing Date), solely to the extent
such adjustments would result in an exercise price lower than $0.66 (as adjusted for stock splits, stock dividends, stock combinations,
recapitalizations and similar events) (the “Adjusted Exercise Price”). The Company hereby acknowledges and agrees
that as of the Closing Date, the exercise price of each of the Existing Warrants shall be the Adjusted Exercise Price and nothing
herein shall be deemed to amend or waive any other provision of the Existing Warrants or limit any adjustment with respect to any
future issuance of securities by the Company after the date hereof.


 




    2 


     

    

 


2.          BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


Each Buyer, severally
and not jointly, represents and warrants to the Company with respect to only itself that, as of the date hereof and as of the Closing
Date:


 


(a)          Organization;
Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction
of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the
Transaction Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.


 


(b)          No
Public Sale or Distribution. Such Buyer (i) is acquiring its Note, and (ii) upon conversion of its Note will acquire the Conversion
Shares issuable upon conversion thereof, in each case, for its own account and not with a view towards, or for resale in connection
with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or
exempted under the 1933 Act; provided, however, by making the representations herein, such Buyer does not agree, or make any representation
or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities
at any time in accordance with or pursuant to a registration statement or an exemption from registration under the 1933 Act. Such
Buyer does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the
Securities in violation of applicable securities laws. For purposes of this Agreement, “Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other
entity and any Governmental Entity or any department or agency thereof


 


(c)          Accredited
Investor Status. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D.


 


(d)          Reliance
on Exemptions. Such Buyer understands that the Securities are being offered and sold to it 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 such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility
of such Buyer to acquire the Securities.


 


(e)          Information.
Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of
the Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and
its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other
due diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect
such Buyer's right to rely on the Company's representations and warranties contained herein. Such Buyer understands that its investment
in the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision with respect to its acquisition of the Securities. Such Buyer acknowledges that,
except for the matters that are expressly covered by the provisions of this Agreement, including the exhibits and schedules hereto,
such Buyer is relying on its own investigation and analysis in entering into this Agreement and consummating the transactions contemplated
hereby.


 




    3 


     

    

 


(f)          No
Governmental Review. Such Buyer 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 of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 


(g)          Transfer
or Resale. Such Buyer understands that except as provided in the Registration Rights Agreement and Section 4(h) hereof: (i)
the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the
Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that
such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration,
or (C) such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant
to Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”);
(ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further,
if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some
other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company
nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing, the Securities may be pledged in connection
with a bona fide margin account or other loan or financing arrangement secured by the Securities and such pledge of Securities
shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities
shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this
Agreement or any other Transaction Document (as defined in Section 3(b)), including, without limitation, this Section 2(g).


 


(h)          Validity;
Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered
on behalf of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer
in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and remedies.


 




    4 


     

    

 


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


 


(j)          Certain
Trading Activities. Such Buyer has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding
with such Buyer, engaged in any Short Sales (as defined in Regulation SHO promulgated under the 1934 Act (as defined in Section
3(f) below) involving the Company’s securities since the time that such Buyer was first contacted by the Company or any other
Person regarding an investment in the Company. Such Buyer covenants that neither it nor any Person acting on its behalf or pursuant
to any understanding with it will engage in any Short Sales prior to the time that the transactions contemplated by this Agreement
are publicly disclosed by the Company. Such Buyer has maintained, and covenants that until such time as the transactions contemplated
by this Agreement are publicly disclosed by the Company pursuant to Section 4(i) such Buyer will maintain, the confidentiality
of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction) and any
information other than the terms of this transaction that the Company provided to such Buyer on a confidential basis.


 


(k)          No
Group. Other than affiliates of such Buyer who are also Buyers under this Agreement, such Buyer is not under common control
with or acting in concert with any other Buyer and is not part of a “group” for purposes of the 1934 Act.


 


(l)          Residency.
Such Buyer is a resident of that jurisdiction specified below its address of the Schedule of Buyers.


 


3.            REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company represents
and warrants to each of the Buyers that, as of the date hereof and as of the Closing Date:


 


(a)          Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing and in
good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their
properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company
and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction
in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to
the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse
Effect (as defined below). As used in this Agreement, “Material Adverse Effect” means any material adverse effect
on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise)
or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated hereby or in
any of the other Transaction Documents or any other agreements or instruments to be entered into in connection herewith or therewith
or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations under
any of the Transaction Documents (as defined below). Other than the Persons (as defined below) set forth on Schedule 3(a),
the Company has no Subsidiaries. “Subsidiaries” means any Person in which the Company, directly or indirectly,
(I) owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (II) controls or operates
all or any part of the business, operations or administration of such Person, and each of the foregoing, is individually referred
to herein as a “Subsidiary.”


 




    5 


     

    

 


(b)          Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. Each
Subsidiary has the requisite power and authority to enter into and perform its obligations under the Transaction Documents to which
it is a party. The execution and delivery of this Agreement and the other Transaction Documents by the Company and its Subsidiaries,
and the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Notes and the reservation for issuance and issuance of the Conversion Shares issuable upon conversion
of the Notes) have been duly authorized by the Company’s board of directors and each of its Subsidiaries’ board of
directors or other governing body, as applicable, and (other than as contemplated by the Transaction Documents, including Section
4(z) of this Agreement, the filing with the SEC of one or more Registration Statements in accordance with the requirements of the
Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies)
no further filing, consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors
or their stockholders or other governing body. This Agreement has been, and the other Transaction Documents to which it is a party
will be prior to the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited
by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification
and to contribution may be limited by federal or state securities law and public policy considerations. Prior to the Closing, the
Transaction Documents to which each Subsidiary is a party will be duly executed and delivered by each such Subsidiary, and shall
constitute the legal, valid and binding obligations of each such Subsidiary, enforceable against each such Subsidiary in accordance
with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state
securities law. “Transaction Documents” means, collectively, this Agreement, the Notes, the Control Account
Agreements, the Registration Rights Agreement, the Irrevocable Transfer Agent Instructions (as defined below) and each of the other
agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions contemplated
hereby and thereby, as may be amended from time to time.


 




    6 


     

    

 


(c)          Issuance
of Securities. The issuance of the Notes are duly authorized and upon issuance in accordance with the terms of the Transaction
Documents shall be validly issued, fully paid and non-assessable and, after giving effect to any consents or waivers received by
the Company on or prior to the Closing Date, free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges,
charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”)
with respect to the issuance thereof. As of the Closing, the Company shall have reserved from its duly authorized capital stock
not less than 300% of the maximum number of Conversion Shares issuable upon conversion of the Notes (assuming for purposes hereof
that (x) the Notes are convertible at the Alternate Conversion Price (as defined in the Notes) assuming an Alternate Conversion
Date (as defined in the Note) as of the date hereof, (y) interest on the Notes shall accrue through the third anniversary of the
Closing Date and will be converted in shares of Common Stock at a conversion price equal to the Alternate Conversion Price assuming
an Alternate Conversion Date as of the date hereof and (z) any such conversion shall not take into account any limitations on the
conversion of the Notes set forth in the Notes). Upon issuance or conversion in accordance with the Notes, after giving effect
to any consents or waivers received by the Company on or prior to the Closing Date, the Conversion Shares when issued, will be
validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue
thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. Subject to the accuracy of the representations
and warranties of the Buyers in this Agreement, the offer and issuance by the Company of the Securities is exempt from registration
under the 1933 Act.


 


(d)          No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries and the
consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation,
the issuance of the Notes and the Conversion Shares and the reservation for issuance of the Conversion Shares) will not (i) result
in a violation of the Certificate of Incorporation (as defined below) (including, without limitation, any certificate of designation
contained therein), By-Laws (as defined below), certificate of formation, memorandum of association, articles of association, bylaws
or other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company
or any of its Subsidiaries, (ii) except as set forth in Schedule 3(d), conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without
limitation, foreign, federal and state securities laws and regulations and the rules and regulations of the Principal Market (as
defined in the Notes), and including all applicable foreign, federal and state laws, rules and regulations) applicable to the Company
or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.


 




    7 


     

    

 


(e)          Consents.
Except as set forth in Schedule 3(e), neither the Company nor any Subsidiary is required to obtain any consent from, authorization
or order of, or make any filing or registration with (other than as contemplated by the Transaction Documents, including Section
4(z) of this Agreement, the filing with the SEC of one or more Registration Statements in accordance with the requirements of the
Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies),
any Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any other Person in order for it to execute,
deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance
with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary
is required to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior to the Closing Date
(other than as contemplated by the Transaction Documents, including Section 4(z) of this Agreement, the filing with the SEC of
one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement, a Form D with the
SEC and any other filings as may be required by any state securities agencies), and, except as set forth in the SEC Documents,
neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent the Company or any
of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated by the Transaction
Documents. Except as set forth in the SEC Documents, the Company is not in violation of the requirements of the Principal Market
and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in
the foreseeable future. “Governmental Entity” means any nation, state, county, city, town, village, district,
or other political jurisdiction of any nature, federal, state, local, municipal, foreign, or other government, governmental or
quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any
court or other tribunal), multi-national organization or body; or body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature or instrumentality of any of the
foregoing, including any entity or enterprise owned or controlled by a government or a public international organization or any
of the foregoing.


 


(f)          Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby
and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner”
of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended (the “1934 Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor or
fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and
the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection
with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Buyer’s
purchase of the Securities. The Company further represents to each Buyer that the Company’s and each Subsidiary’s decision
to enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation by the Company,
each Subsidiary and their respective representatives.


 




    8 


     

    

 


(g)          No
General Solicitation; Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any
Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning
of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer
or its investment advisor) relating to or arising out of the transactions contemplated hereby, including, without limitation, placement
agent fees payable to the Placement Agent in connection with the sale of the Securities. The fees and expenses of the Placement
Agent to be paid by the Company or any of its Subsidiaries are as set forth on Schedule 3(g) attached hereto. The Company shall
pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, attorney's fees and out-of-pocket
expenses) arising in connection with any such claim. The Company acknowledges that it has engaged the Placement Agent in connection
with the sale of the Securities. Other than the Placement Agent, neither the Company nor any of its Subsidiaries has engaged any
placement agent or other agent in connection with the offer or sale of the Securities.


 


(h)          No
Integrated Offering. None of the Company, its Subsidiaries or any of their 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 require registration of any of the Securities under the 1933 Act, whether through integration with prior offerings or
otherwise, or cause this offering of the Securities to require approval of stockholders of the Company for purposes of the 1933
Act or under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the securities of the Company are listed or designated for quotation.
None of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that
would require registration of any of the Securities under the 1933 Act or cause the offering of any of the Securities to be integrated
with other offerings of securities of the Company.


 


(i)          Dilutive
Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances.
The Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of the Notes in accordance
with this Agreement and the Notes is, in each case, absolute and unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other stockholders of the Company.


 


(j)          Application
of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill (including,
without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover provision
under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation
or otherwise which is or could become applicable to any Buyer as a result of the transactions contemplated by this Agreement, including,
without limitation, the Company’s issuance of the Securities and any Buyer’s ownership of the Securities. The Company
and its board of directors have taken all necessary action, if any, in order to render inapplicable any stockholder rights plan
or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the
Company or any of its Subsidiaries.


 




    9 


     

    

 


(k)          SEC
Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all reports,
schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting
requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein
and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred
to as the “SEC Documents”). The Company has delivered or has made available to the Buyers or their respective
representatives true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective
dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations
of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As of their respective dates, and except for any restatement, correction, revision, or update described in any subsequent SEC Document
filed prior to the date hereof, the financial statements of the Company included in the SEC Documents complied in all material
respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in
effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting
principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may
exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position
of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the
aggregate). The reserves, if any, established by the Company or the lack of reserves, if applicable, are reasonable based upon
facts and circumstances known by the Company on the date hereof and there are no loss contingencies that are required to be accrued
by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided for
by the Company in its financial statements or otherwise. No other information provided by or on behalf of the Company to any of
the Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e)
of this Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under
which they are or were made. The Company is not currently contemplating to amend or restate any of the financial statements (including,
without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the
SEC Documents (the “Financial Statements”), nor is the Company currently aware of facts or circumstances which
would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials
Statements to be in compliance with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent
accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for
the Company to amend or restate any of the Financial Statements.


 




    10 


     

    

 


(l)          Absence
of Certain Changes. Except as disclosed in Schedule 3(l) or in the SEC Documents, since the date of the Company’s most
recent audited financial statements contained in a Form 10-K, there has been no material adverse change and no material adverse
development in the business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise)
or prospects of the Company or any of its Subsidiaries. Except as disclosed in Schedule 3(l) or in the SEC Documents, since the
date of the Company’s most recent audited financial statements contained in a Form 10-K, neither the Company nor any of its
Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary
course of business or (iii) made any capital expenditures, individually or in the aggregate, in excess of $100,000, outside of
the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant
to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the
Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. Except as disclosed
in Schedule 3(l), the Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and
after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below).
For purposes of this Section 3(l), “Insolvent” means, (i) with respect to the Company and its Subsidiaries,
on a consolidated basis, (A) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less
than the amount required to pay the Company’s and its Subsidiaries’ total Indebtedness (as defined below), (B) the
Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur
debts that would be beyond their ability to pay as such debts mature; and (ii) with respect to the Company and each Subsidiary,
individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s (as the case may be) assets
is less than the amount required to pay its respective total Indebtedness, (B) the Company or such Subsidiary (as the case may
be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to incur or believes that it will
incur debts that would be beyond its respective ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries
has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which
the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is proposed to be conducted.


 


(m)          No
Undisclosed Events, Liabilities, Developments or Circumstances. Except as disclosed in the SEC Documents, no event, liability,
development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the Company, any
of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including results thereof)
or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under applicable securities laws
on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by the Company of its Common Stock
and which has not been publicly announced, (ii) would reasonably be expected to have a material adverse effect on any Buyer’s
investment hereunder or (iii) would reasonably be expected to have a Material Adverse Effect.


 




    11 


     

    

 


(n)          Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default
under its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding series of
preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation,
memorandum of association, articles of association, Certificate of Incorporation or certificate of incorporation or bylaws, respectively.
Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule
or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct
its business in violation of any of the foregoing, except in all cases for possible violations which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except
as described on Schedule 3(n) attached hereto, the Company is not in violation of any of the rules, regulations or requirements
of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension
of the Common Stock by the Principal Market in the foreseeable future. During the two years prior to the date hereof, except as
described on Schedule 3(n) attached hereto, (i) the Common Stock has been listed or designated for quotation on the Principal Market,
(ii) trading in the Common Stock has not been suspended by the SEC or the Principal Market and (iii) the Company has received no
communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock
from the Principal Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued
by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess
such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and except
as disclosed on Schedule 3(n) attached hereto, neither the Company nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit. Except as disclosed in on Schedule
3(n) attached hereto, there is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any
of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected to
have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition
of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently
conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to
have a Material Adverse Effect on the Company or any of its Subsidiaries.


 


(o)          Foreign
Corrupt Practices. Except as disclosed in the SEC Documents, neither the Company, the Company’s subsidiary or any director,
officer, agent, employee, nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company
Affiliate”) have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable
anti-bribery or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of
any money, or offered, given, promised to give, or authorized the giving of anything of value, to any officer, employee or any
other person acting in an official capacity for any Governmental Entity to any political party or official thereof or to any candidate
for political office (individually and collectively, a “Government Official”) or to any person under circumstances
where such Company Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would
be offered, given or promised, directly or indirectly, to any Government Official, for the purpose of:


 




    12 


     

    

 


(i)          (A)
influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official
to do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government
Official to influence or affect any act or decision of any Governmental Entity, or


 


(ii)         assisting
the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.


 


(p)          Sarbanes-Oxley
Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of
2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder, in each case that are effective
as of the date hereof.


 


(q)          Transactions
With Affiliates. Except as set forth on Schedule 3(q) or in the SEC Documents, no current or former employee, director, or
officer of the Company or its Subsidiaries, or, to the knowledge of the Company, any affiliate or any relative, with a relationship
no more remote than first cousin, of any of the foregoing, is presently, or has ever been, (i) a party to any transaction with
the Company or its Subsidiaries (including any contract, agreement or other arrangement providing for the furnishing of services
by, or rental of real or personal property from, or otherwise requiring payments to, any such employee, director, officer or, to
the knowledge of the Company, affiliate or relative, with a relationship no more remote than first cousin, of any of the foregoing
(other than for ordinary course services as employees, officers or directors of the Company or any of its Subsidiaries)) or (ii)
the direct or indirect owner of an interest in any corporation, firm, association or business organization which is a competitor,
supplier or customer of the Company or its Subsidiaries (except for a passive investment (direct or indirect) in less than 5% of
the common stock of a company whose securities are traded on or quoted through an Eligible Market (as defined in the Notes)), nor,
to the Company’s knowledge, does any such Person receive income from any source other than the Company or its Subsidiaries
which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries.
No employee, officer, stockholder or director of the Company or any of its Subsidiaries or member of his or her immediate family
is indebted to the Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted (or
committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered,
(ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made
generally available to all employees or executives (including stock option agreements outstanding under any stock option plan approved
by the Board of Directors of the Company).


 


(r)          Equity
Capitalization. 


 


(i)          Definitions:


 


(A)         “Common
Stock” means (x) the Company’s shares of common stock, $0.0001 par value per share, and (y) any capital stock
into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 




    13 


     

    

 


(B)         “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.0001 par value per share, the terms of which may
be designated by the board of directors of the Company in a certificate of designations and (y) any capital stock into which such
preferred stock shall have been changed or any share capital resulting from a reclassification of such preferred stock (other than
a conversion of such preferred stock into Common Stock in accordance with the terms of such certificate of designations).


 


(ii)         Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 314,800,000
shares of Common Stock, of which, 10,873,863 shares are issued and outstanding and 4,768,974 shares are reserved for issuance pursuant
to Convertible Securities (as defined below) (other than the Common Shares) exercisable or exchangeable for, or convertible into,
shares of Common Stock and (B) 100,000 shares of Preferred Stock, none of which are issued and outstanding. No shares of Common
Stock are held in the treasury of the Company.


 


(iii)        Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance
will be, validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of shares of Common
Stock that are (A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes) and (B) that
are, as of the date hereof, owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated
based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding
Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of
federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more
of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities
(as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the
case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without
conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).


 


(iv)        Existing
Securities; Obligations. Except as set forth in Schedule 3(r)(iv) or as disclosed in the SEC Documents: (A) none of
the Company’s or any Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar
rights or Liens suffered or permitted by the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into,
or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional
shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable
for, any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements
under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933
Act (except pursuant to the Registration Rights Agreement); (D) there are no outstanding securities or instruments of the Company
or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries; (E) except as set forth on Schedule 3(r)(iv)(E), there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (F) neither the Company nor any
Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.


 




    14 


     

    

 


(v)         Organizational
Documents. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”),
and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms
of all Convertible Securities and the material rights of the holders thereof in respect thereto.


 


(s)          Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed on Schedule 3(s),
has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments
evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may
become bound, (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the
other party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect,
(iii) has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries;
(iv) is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except
where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is
a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the
Company’s officers, has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries
have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents,
other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which,
individually or in the aggregate, do not or could not have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness”
of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance
with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement
or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced
by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness
(even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession
or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP,
consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses
(A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even
though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and
(H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through
(G) above; and (y) “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent
or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary
purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee
of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with,
or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.


 




    15 


     

    

 


(t)          Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public
board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors , whether of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in
Schedule 3(t) or in the SEC Documents. To the Company’s knowledge, no director, officer or employee of the Company
or any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation of litigation.
Without limitation of the foregoing, except as set forth in the SEC Documents, 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, any of its Subsidiaries or any
current or former director or officer of the Company or any of its Subsidiaries. The SEC has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company under the 1933 Act or the 1934 Act. After
reasonable inquiry of its employees, except as set forth in the SEC Documents, the Company is not aware of any fact which might
result in or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the Company
nor any of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental
Entity.


 


(u)          Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company
and its Subsidiaries are engaged (including, without limitation, a directors and officers liability insurance policy with at least
$15.0 million in coverage (subject to customary exclusions)). Neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will
be unable 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 at a cost that would not have a Material Adverse Effect.


 




    16 


     

    

 


(v)         Employee
Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any
member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer
(as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has
notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise
terminate such officer’s employment with the Company or any such Subsidiary. No executive officer or other key employee of
the Company or any of its Subsidiaries, to the knowledge of the Company, is, or is now expected to be, in violation of any material
term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or
any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer or other
key employee (as the case may be) does not, to the knowledge of the Company, 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 federal,
state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms and conditions
of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.


 


(w)         Title.


 


(i)          Real
Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities
or other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”)
owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject
to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for (a)
Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or anticipated
use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.


 


(ii)         Fixtures
and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in,
the tangible personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used
by the Company or its Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”).
The Fixtures and Equipment are structurally sound, are in good operating condition and repair, are adequate for the uses to which
they are being put, are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient
for the conduct of the Company’s and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior
to the Closing. Each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except
for (a) liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present
or anticipated use of the property subject thereto.


 




    17 


     

    

 


(x)          Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks,
trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications
and registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses
as now conducted in all material respects. Each of patents owned by the Company or any of its Subsidiaries is listed on Schedule
3(x)(i). Except as set forth in Schedule 3(x)(ii), none of the Company's Intellectual Property Rights have expired or terminated
or have been abandoned or are expected to expire or terminate or are expected to be abandoned, within three years from the date
of this Agreement. The Company does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual
Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or
any of its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights.
Neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any of the foregoing
infringements or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their Intellectual Property Rights, other than with respect to Intellectual Property
Rights that by their nature involve the disclosure thereof.


 


(y)          Environmental
Laws(i)          . (i) The Company and its Subsidiaries (A) are in compliance
with any and all Environmental Laws (as defined below), (B) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions
of any such permit, license or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could
be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws”
means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation,
laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.


 


(ii)         No
Hazardous Materials:


 


(A)         have
been disposed of or otherwise released from any Interest of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or


 


(B)         are
present on, over, beneath, in or upon the Real Property or any portion thereof in quantities that would constitute a violation
of any Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates
any Environmental Laws, which violation would have a material adverse effect on the business of the Company or any of its Subsidiaries.


 




    18 


     

    

 


(iii)        Neither
the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed of
or otherwise located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and
polychlorinated biphenyls.


 


(iv)        None
of the Real Property is on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related
Liens.


 


(z)          Subsidiary
Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable
law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such Subsidiary.


 


(aa)        Tax
Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely 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, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate
for the payment of all 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 and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify as
a passive foreign investment company, as defined in Section 1297 of the Internal Revenue Code of 1986, as amended (the “Code”).
The net operating loss carryforwards (“NOLs”) for United States federal income tax purposes of the consolidated
group of which the Company is the common parent, if any, shall not be adversely effected by the transactions contemplated hereby.
The transactions contemplated hereby do not constitute an “ownership change” within the meaning of Section 382 of the
Code, thereby preserving the Company’s ability to utilize such NOLs.


 


(bb)       Internal
Accounting and Disclosure Controls. The Company and each of its Subsidiaries maintains internal control over financial reporting
(as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including
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 and liability
accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general
or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets
and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. Except as otherwise disclosed
in the SEC Documents, the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under
the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files
or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and
forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate,
to allow timely decisions regarding required disclosure. Except as otherwise disclosed in the SEC Documents, neither the Company
nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental Entity or other Person
relating to any potential material weakness or significant deficiency in any part of the internal controls over financial reporting
of the Company or any of its Subsidiaries.


 




    19 


     

    

 


(cc)        Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries
and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings
and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.


 


(dd)       Investment
Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment company,”
an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company” as
such terms are defined in the Investment Company Act of 1940, as amended.


 


(ee)       Acknowledgement
Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that, other than with respect to
the restrictions on Short Sales (as defined below) set forth in Section 4(aa) below, (i) following the public disclosure of the
transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none of the Buyers have been asked
by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its Subsidiaries, to desist
from effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short)
any securities of the Company, or “derivative” securities based on securities issued by the Company or to hold any
of the Securities for any specified term; (ii) subject to Section 2(k) of this Agreement, any Buyer, and counterparties in “derivative”
transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short” position in the
Common Stock which was established prior to such Buyer’s knowledge of the transactions contemplated by the Transaction Documents;
and (iii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length counterparty in any
“derivative” transaction. Subject to Section 4(aa) of this Agreement, the Company further understands and acknowledges
that following the public disclosure of the transactions contemplated by the Transaction Documents pursuant to the Press Release
(as defined below) one or more Buyers may engage in hedging and/or trading activities at various times during the period that the
Securities are outstanding, including, without limitation, during the periods that the value and/or number of the Conversion Shares
deliverable with respect to the Securities are being determined and such hedging and/or trading activities, if any, can reduce
the value of the existing stockholders’ equity interest in the Company both at and after the time the hedging and/or trading
activities are being conducted. The Company acknowledges that, subject to Section 2(k) and Section 4(aa) of this Agreement, such
aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Notes or any other Transaction
Document or any of the documents executed in connection herewith or therewith.


 




    20 


     

    

 


(ff)         Manipulation
of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their
behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of
the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities,
(ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other than the Placement
Agent), (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the
Company or any of its Subsidiaries (other than the Placement Agent) or (iv) paid or agreed to pay any Person for research services
with respect to any securities of the Company or any of its Subsidiaries.


 


(gg)       U.S.
Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any
of the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section 897
of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.


 


(hh)       Registration
Eligibility. The Company is eligible to register the Registrable Securities for resale by the Buyers using Form S-1 promulgated
under the 1933 Act.


 


(ii)         Transfer
Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be
paid in connection with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have
been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


(jj)          Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries 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 (25%) 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.


 


(kk)        Shell
Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).


 


(ll)          Illegal
or Unauthorized Payments; Political Contributions. Except as disclosed in the SEC Documents, neither the Company nor any of
its Subsidiaries nor, to the best of the Company’s knowledge (after reasonable inquiry of its officers and directors), any
of the officers, directors, employees, agents or other representatives of the Company or any of its Subsidiaries or any other business
entity or enterprise with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly,
made or authorized any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable
law, (i) as a kickback or bribe to any Person or (ii) to any political organization, or the holder of or any aspirant to any elective
or appointive public office except for personal political contributions not involving the direct or indirect use of funds of the
Company or any of its Subsidiaries.


 




    21 


     

    

 


(mm)      Money
Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act
of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the
laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including,
but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations
contained in 31 CFR, Subtitle B, Chapter V.


 


(nn)       Management.
Except as set forth in Schedule 3(nn) hereto or in the SEC Documents, during the past five year period, no current
or former officer or director or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company
or any of its Subsidiaries has been the subject of:


 


(i)          a
petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent
or similar officer for such Person, or any partnership in which such person was a general partner at or within two years before
the filing of such petition or such appointment, or any corporation or business association of which such person was an executive
officer at or within two years before the time of the filing of such petition or such appointment;


 


(ii)         a
conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not
relate to driving while intoxicated or driving under the influence);


 


(iii)        any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining any such person from, or otherwise limiting, the following activities:


 


(1)         Acting
as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person
of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person,
director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing
any conduct or practice in connection with such activity;


 


(2)         Engaging
in any particular type of business practice; or


 




    22 


     

    

 


(3)         Engaging
in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of securities
laws or commodities laws;


 


(iv)        any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph,
or to be associated with persons engaged in any such activity;


 


(v)         a
finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities
law, regulation or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently
reversed, suspended or vacated; or


 


(vi)        a
finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated
any federal commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or
vacated.


 


(oo)       Stock
Option Plans. Each stock option granted by the Company was granted
(i) in accordance with the terms of the applicable stock option plan of the Company and (ii) with an exercise price at least equal
to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable
law. No stock option granted under the Company's stock option plan has been backdated. The Company has not knowingly granted, and
there is no and has been no policy or practice of the Company to knowingly grant, stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company
or its Subsidiaries or their financial results or prospects.


 


(pp)       No
Disagreements with Accountants and Lawyers. There are no material
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.
In addition, on or prior to the date hereof, the Company had discussions with its accountants about its financial statements previously
filed with the SEC. Based on those discussions, the Company has no reason to believe that it will need to restate any such financial
statements or any part thereof.


 


(qq)       No
Disqualification Events. With respect to Securities to be offered
and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“Regulation D Securities”), none of the Company,
any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in
the offering contemplated hereby, any beneficial owner of 20% or more of the Company's outstanding voting equity securities, calculated
on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with the Company
in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered
Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii)
under the 1933 Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2)
or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification
Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished
to the Buyers a copy of any disclosures provided thereunder.


 




    23 


     

    

 


(rr)         Other
Covered Persons. The Company is not aware of any Person (other
than the Placement Agent) that has been or will be paid (directly or indirectly) remuneration for solicitation of Buyers or potential
purchasers in connection with the sale of any Regulation D Securities.


 


(ss)        No
Additional Agreements. The Company does not have any agreement or understanding with any Buyer with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents.


 


(tt)         Public
Utility Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate”
of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.


 


(uu)       Federal
Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under
the Federal Power Act, as amended.


 


(vv)       Ranking
of Notes. Other than as set forth in Schedule 3(vv), no Indebtedness of the Company, at the Closing, will be senior to, or
pari passu with, the Notes in right of payment, whether with respect to payment or redemptions, interest, damages, upon
liquidation or dissolution or otherwise.


 


(ww)      Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents or
counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning
the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other
Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations
in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf
of the Company or any of its Subsidiaries is true and correct in all material respects 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 the light of the
circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or
on behalf of the Company or any of its Subsidiaries to each Buyer pursuant to or in connection with this Agreement and the other
Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date on which such information
is so provided and will 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 the light of the circumstances under which they were made, not misleading. Each press release
issued by the Company or any of its Subsidiaries during the twelve (12) months preceding the date of this Agreement did not at
the time of release 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 the light of the circumstances under which they are made, not misleading.
Except for the execution of the Transaction Documents and the closing of the transactions contemplated thereby, no event or circumstance
has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties,
liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable
law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not
been so publicly disclosed. All financial projections and forecasts that have been prepared by or on behalf of the Company or any
of its Subsidiaries and made available to you have been prepared in good faith based upon reasonable assumptions and represented,
at the time each such financial projection or forecast was delivered to each Buyer, the Company’s reasonable best estimate
of future financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts
and that the actual results during the period or periods covered by any such financial projections or forecasts may differ from
the projected or forecasted results). The Company acknowledges and agrees that no Buyer makes or has made any representations or
warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.


 




    24 


     

    

 


4.          COVENANTS.


 


(a)          Best
Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied
by it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants
hereunder and conditions to be satisfied by it as provided in Section 7 of this Agreement.


 


(b)          Form
D and Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation D and to provide
a copy thereof to each Buyer promptly after such filing. The Company shall, on or before the Closing Date, take such action as
the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale
to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states
of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken
to the Buyers on or prior to the Closing Date. Without limiting any other obligation of the Company under this Agreement, the Company
shall timely make all filings and reports relating to the offer and sale of the Securities required under all applicable securities
laws (including, without limitation, all applicable federal securities laws and all applicable “Blue Sky” laws), and
the Company shall comply with all applicable foreign, federal, state and local laws, statutes, rules, regulations and the like
relating to the offering and sale of the Securities to the Buyers.


 


(c)          Reporting
Status. Until the date on which the Buyers shall have sold all of the Registrable Securities (the “Reporting Period”),
the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not
terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations
thereunder would no longer require or otherwise permit such termination.


 




    25 


     

    

 


(d)          Use
of Proceeds. The Company will use the proceeds from the sale of the Securities for general corporate purposes, but not, directly
or indirectly, for (i) except as set forth on Schedule 4(d), the satisfaction of any indebtedness of the Company or any of its
Subsidiaries, (ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement
of any outstanding litigation (excluding payment of defense costs).


 


(e)          Financial
Information.


 


(i)          General.
The Company agrees to send the following to each Investor (as defined in the Registration Rights Agreement) during the Reporting
Period (A) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system,
within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements
and/or cash flow statements for any period other than annual, any Current Reports on Form 8-K and any registration statements (other
than on Form S-8) or amendments filed pursuant to the 1933 Act, (B) unless the following are either filed with the SEC through
EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire), on the same day as the
release thereof, facsimile or emailed copies of all press releases issued by the Company or any of its Subsidiaries and (C) unless
the following are filed with the SEC through EDGAR, copies of any notices and other information made available or given to the
stockholders of the Company generally, contemporaneously with the making available or giving thereof to the stockholders.


 


(ii)         Financial
Statements and Inspection. The Company shall deliver to each Buyer (unless the following are filed with the SEC through EDGAR)
and, to the extent the following includes material non-public information, shall, no later than the first (1st) Business
Day (or such other date as mutually agreed to by the Company and each Buyer in writing) after such disclosure to one or more Buyers,
make publically available:


 


(A)         as
soon as practicable following the end of each fiscal quarter (other than the fourth fiscal quarter of each fiscal year), but in
no event later than forty-five (45) Business Days after the end of such fiscal quarter, the Company's consolidated unaudited balance
sheet, income statement, a statement of stockholder's equity and a statement of cash flows for such quarter, such quarter-end financial
reports to be in reasonable detail, prepared in accordance with GAAP (except that such financial statements may (I) be subject
to normal year-end audit adjustments and (II) not contain all notes thereto that may be required in accordance with GAAP); and


 


(B)          as soon
as practicable following the end of each fiscal year, but in no event later than ninety (90) Business Days following the end of
such fiscal year, the Company's audited consolidated balance sheet, income statement, a statement of stockholder's equity and a
statement of cash flows for such year and, if applicable, the immediately preceding fiscal year, such year-end financial reports
to be in reasonable detail, prepared in accordance with GAAP, and audited by independent public accountants of nationally recognized
standing selected by the Company and reasonably acceptable to the Required Holders.


 




    26 


     

    

 


(f)          Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Registrable Securities
upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated
for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation for
quotation (as the case may be) of all Registrable Securities from time to time issuable under the terms of the Transaction Documents
on such national securities exchange or automated quotation system. The Company shall maintain the Common Stock’s listing
or authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE MKT, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the OTCQX and the OTCQB (each, an “Eligible
Market”). Neither the Company nor any of its Subsidiaries shall take any action which would be reasonably expected to
result in the delisting or suspension of the Common Stock on an Eligible Market. The Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section 4(f).


 


(g)          Fees.
The Company shall reimburse the lead Buyer for all reasonable out-of-pocket costs and expenses incurred by it or its affiliates
in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction
Documents (including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley
Drye & Warren LLP, counsel to the lead Buyer, any other reasonable fees and expenses in connection with the structuring, documentation,
negotiation and closing of the transactions contemplated by the Transaction Documents and due diligence and regulatory filings
in connection therewith) (the “Transaction Expenses”) and shall be withheld by the lead Buyer from its Purchase
Price at the Closing, less $30,000 previously paid by the Company to the lead Buyer; provided, that the Company shall promptly
reimburse Kelley Drye & Warren LLP on demand for all Transaction Expenses not so reimbursed through such withholding at the
Closing. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, Control
Account Bank fees, transfer agent fees, DTC (as defined below) fees or broker’s commissions (other than for Persons engaged
by any Buyer) relating to or arising out of the transactions contemplated hereby (including, without limitation, any fees or commissions
payable to the Placement Agent, who is the Company’s sole placement agent in connection with the transactions contemplated
by this Agreement). The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without
limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such
payment described in the immediately preceding sentence. Except as otherwise set forth in the Transaction Documents, each party
to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Buyers.


 


(h)          Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that
the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement
that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities
hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company with any notice thereof or
otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation,
Section 2(g) hereof; provided that an Investor and its pledgee shall be required to comply with the provisions of Section
2(g) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to execute
and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities
to such pledgee by a Buyer.


 




    27 


     

    

 


(i)          Disclosure
of Transactions and Other Material Information.


 


(i)          Disclosure
of Transaction. The Company shall, on or before 9:30 a.m., New York time, on the first (1st) Business Day after
the date of this Agreement, issue a press release (the “Press Release”) reasonably acceptable to the Buyers
disclosing all the material terms of the transactions contemplated by the Transaction Documents. On or before 9:30 a.m., New York
time, on the first (1st) Business Day after the date of this Agreement, the Company shall file a Current Report on Form
8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the
1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (and all schedules
to this Agreement), the form of Notes and the form of the Registration Rights Agreement) (including all attachments, the “8-K
Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information
(if any) provided to any of the Buyers 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. In addition, effective upon
the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate.


 




    28 


     

    

 


(ii)         Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company
or any of its Subsidiaries from and after the filing of the 8-K Filing without the express prior written consent of such Buyer
(which may be granted or withheld in such Buyer’s sole discretion), unless the Company is affirmatively obligated by a Transaction
Document to provide such information to a Buyer (including without limitation pursuant to Section 4(o) of this Agreement) (“Required
Disclosures”). If a Buyer has, or believes it has, received any such material, nonpublic information regarding the Company
or any of its Subsidiaries from the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates
or agents, it may provide the Company with written notice thereof. Other than in the case of Required Disclosures, the Company
shall, within two (2) Business Days of receipt of such notice, make public disclosure of such material, nonpublic information.
All material non-public information provided to any Investor in any Required Disclosures shall be publicly disclosed no later than
the first (1st) Business Day after any Investor’s receipt of such Required Disclosure (or such later time as the
Required Holders shall agree in writing). In the event of a breach of any of the foregoing covenants by the Company, any of its
Subsidiaries, or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good
faith judgment of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall
have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material,
non-public information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their
respective officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees, affiliates, stockholders or agents, for any such disclosure that
is accurately made in good faith. To the extent that the Company delivers any material, non-public information to a Buyer without
such Buyer's consent or fails to timely make Required Disclosures publicly available, the Company hereby covenants and agrees that
such Buyer shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public
information. Subject to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any
other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled,
without the prior approval of any Buyer, to make the Press Release and any press release or other public disclosure with respect
to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required
by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its release). Except for the Registration Statements required to
be filed pursuant to the Registration Rights Agreement, without the prior written consent of the applicable Buyer (which may be
granted or withheld in such Buyer’s sole discretion), the Company shall not (and shall cause each of its Subsidiaries and
affiliates to not) disclose the name of such Buyer in any filing, announcement, release or otherwise. Notwithstanding anything
contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly
acknowledges and agrees that, except with respect to the Required Disclosures, no Buyer shall have (unless expressly agreed to
by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the Company and such particular
Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality
with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its
Subsidiaries.


 


(j)          Additional
Registration Statements. Until the Applicable Date (as defined below) and at any time thereafter while any Registration Statement
is not effective or the prospectus contained therein is not available for use or any Current Public Information Failure (as defined
in the Registration Rights Agreement) exists, the Company shall not file a registration statement under the 1933 Act relating to
securities that are not the Registrable Securities (other than a registration statement on Form S-8 or such supplements or amendments
to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely to the
extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)).
“Applicable Date” means the earlier of (x) the first date on which a Registration Statement filed with the SEC
pursuant to the Registration Rights Agreement registering the resale by the Buyers of the Required Registration Amount (as defined
in the Registration Rights Agreement) of the Registrable Securities is declared effective by the SEC (and each prospectus contained
therein is available for use by the Buyers on such date) or (y) the first date on which all of the Registrable Securities are eligible
to be resold by the Buyers pursuant to Rule 144 (or, if a Current Public Information Failure has occurred and is continuing, such
later date after which the Company has cured such Current Public Information Failure).


 




    29 


     

    

 


(k)          Additional
Issuance of Securities. So long as any Buyer beneficially owns any Notes, the Company will not, without the prior written consent
of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any
other securities that would cause a breach or default under the Notes. The Company agrees that for the period commencing on the
date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that
such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this
proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any
Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of
its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of
(or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or
any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined
under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or
any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted
Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing,
this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common
Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined
below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options)
after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2,000,000 shares of the Common Stock
(as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events) and (2) the exercise
price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder
and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any
of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard
options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to
the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible
Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such
Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise
or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an
Approved Stock Plan that are covered by clause (i) above) is not lowered, except pursuant to the terms thereof that were in effect
on the date immediately prior to the date of this Agreement, none of such Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the
number of shares issuable thereunder, except pursuant to the terms thereof that were in effect on the date immediately prior to
the date of this Agreement, and none of the terms or conditions of any such Convertible Securities (other than standard options
to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially
changed in any manner that adversely affects any of the Buyers, except pursuant to the terms thereof that were in effect on the
date immediately prior to the date of this Agreement; (iii) the Conversion Shares, and (iv) shares of Common Stock, Options and
Convertible Securities issued pursuant to equipment lease financings, strategic mergers or acquisitions of other assets or businesses,
or strategic licensing or development transactions; provided that (x) the primary purpose of such issuance is not to raise capital
as determined in good faith by the Buyers, (y) the purchaser or acquirer of such shares of Common Stock in such issuance solely
consists of either (1) the actual participants in such equipment lease financings, or strategic licensing or development transactions,
(2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the shareholders, partners or
members of the foregoing Persons, and (z) the number or amount (as the case may be) of such shares of Common Stock issued to such
Person by the Company shall not be disproportionate to such Person’s actual participation in such equipment lease financings,
or strategic licensing or development transactions or ownership of such assets or securities to be acquired by the Company (as
applicable) (each of the foregoing in clauses (i) through (iv), collectively the “Excluded Securities”). “Approved
Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to
or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be
issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible
Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and
under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the
holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or
any of its Subsidiaries.


 




    30 


     

    

 


(l)           Reservation
of Shares. So long as any of the Notes remain outstanding, the Company shall take all action necessary to at all times have
authorized, and reserved for the purpose of issuance, no less than 300% of the maximum number of shares of Common Stock issuable
upon conversion of all the Notes then outstanding (assuming for purposes hereof that (x) the Notes are convertible at the Alternate
Conversion Price assuming an Alternate Conversion Date as of the applicable date of determination, (y) interest on the Notes shall
accrue through the third anniversary of the Closing Date and will be converted in shares of Common Stock at a conversion price
equal to the Alternate Conversion Price assuming an Alternate Conversion Date as of the applicable date of determination and (z)
any such conversion shall not take into account any limitations on the conversion of the Notes set forth in the Notes), (collectively,
the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock reserved
pursuant to this Section 4(l) be reduced other than proportionally in connection with any conversion and/or redemption, as applicable
of Notes. If at any time the number of shares of Common Stock authorized and reserved for issuance is not sufficient to meet the
Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number
of shares, including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the
Company's obligations pursuant to the Transaction Documents, in the case of an insufficient number of authorized shares, obtain
stockholder approval of an increase in such authorized number of shares, and voting the management shares of the Company in favor
of an increase in the authorized shares of the Company to ensure that the number of authorized shares is sufficient to meet the
Required Reserve Amount.


 




    31 


     

    

 


(m)         Conduct
of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or
regulation of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually
or in the aggregate, in a Material Adverse Effect.


 


(n)          Other
Notes; Variable Securities. . So long as any Notes remain outstanding, the Company and each Subsidiary shall be prohibited
from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable
Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities
either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of
or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with
a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such
Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business
of the Company or the market for the Common Stock, or (ii) enters into any agreement (including, without limitation, an equity
line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future
determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer
shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy
shall be in addition to any right to collect damages.


 


(o)          Participation
Right. From the date hereof until the second anniversary of the date hereof, neither the Company nor any of its Subsidiaries
shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4(o).
The Company acknowledges and agrees that the right set forth in this Section 4(o) is a right granted by the Company, separately,
to each Buyer.


 




    32 


     

    

 


(i)          At
least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Buyer a written
notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation,
material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material,
non-public information, a statement asking whether the Investor is willing to accept material non-public information or (B) if
the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes
or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material,
non-public information and (z) a statement informing such Buyer that it is entitled to receive an Offer Notice (as defined below)
with respect to such Subsequent Placement upon its written request. Upon the written request of a Buyer within three (3) Trading
Days after the Company’s delivery to such Buyer of such Pre-Notice, and only upon a written request by such Buyer, the Company
shall promptly, but no later than one (1) Trading Day after such request, deliver to such Buyer an irrevocable written notice (the
“Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities
being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe
the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number
or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which
the Offered Securities are to be offered, issued, sold or exchanged and (D) offer to issue and sell to or exchange with such Buyer
in accordance with the terms of the Offer such Buyer’s pro rata portion of 35% of the Offered Securities, provided that the
number of Offered Securities which such Buyer shall have the right to subscribe for under this Section 4(o) shall be (x) based
on such Buyer’s pro rata portion of the aggregate original principal amount of the Notes purchased hereunder by all Buyers
(the “Basic Amount”), and (y) with respect to each Buyer that elects to purchase its Basic Amount, any additional
portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase
or acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”),
which process shall be repeated until each Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.


 


(ii)         To
accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the fifth (5th)
Business Day after such Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion
of such Buyer’s Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic
Amount, the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”).
If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has
set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts
subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed
for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available
Undersubscription Amount”), each Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase
only that portion of the Available Undersubscription Amount as the Basic Amount of such Buyer bears to the total Basic Amounts
of all Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably
necessary. Notwithstanding the foregoing, if the Company desires to materially modify or materially amend the terms and conditions
of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Buyer a new Offer Notice and the Offer
Period shall expire on the fifth (5th) Business Day after such Buyer’s receipt of such new Offer Notice.


 




    33 


     

    

 


(iii)        The
Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all
or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Buyer (the “Refused
Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only
to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without
limitation, unit prices and interest rates) that are not materially more favorable to the acquiring Person or Persons or materially
less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent
Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement
or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K
with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.


 


(iv)        In
the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the
terms specified in Section 4(o)(iii) above), then each Buyer may, at its sole option and in its sole discretion, reduce the
number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number
or amount of the Offered Securities that such Buyer elected to purchase pursuant to Section 4(o)(ii) above multiplied by a
fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue,
sell or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section 4(o) prior to such
reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Buyer
so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue,
sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been
offered to the Buyers in accordance with Section 4(o)(i) above.


 


(v)         Upon
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Buyer shall acquire from
the Company, and the Company shall issue to such Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance,
as reduced pursuant to Section 4(o)(iv) above if such Buyer has so elected, upon the terms and conditions specified in the
Offer. The purchase by such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery
by the Company and such Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form
and substance to such Buyer and its counsel.


 


(vi)        Any
Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(o) may not be issued, sold or
exchanged until they are again offered to such Buyer under the procedures specified in this Agreement, but the Company will not
be obligated to enter into a purchase agreement with the Buyers that is materially different that the purchase agreement that the
Company enters into with other investors in the Subsequent Placement (unless such purchase agreement violates the terms and conditions
of this Section 4(o)).


 




    34 


     

    

 


(vii)       The
Company and each Buyer agree that if any Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement
with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement
Documents”) shall include any term or provision whereby such Buyer shall be required to agree to any restrictions on
trading as to any securities of the Company owned by Buyer prior to such Subsequent Placement, or be required to consent to any
amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously
entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent
Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.


 


(viii)      Notwithstanding
anything to the contrary in this Section 4(o) and unless otherwise agreed to by such Buyer, the Company shall either confirm in
writing to such Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose
its intention to issue the Offered Securities, in either case, in such a manner such that such Buyer will not be in possession
of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If
by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities
has been made, and no notice regarding the abandonment of such transaction has been received by such Buyer, such transaction shall
be deemed to have been abandoned and such Buyer shall not be in possession of any material, non-public information with respect
to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities,
the Company shall provide such Buyer with another Offer Notice and such Buyer will again have the right of participation set forth
in this Section 4(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Buyer in any sixty
(60) day period, except as expressly contemplated by the last sentence of Section 4(o)(ii).


 


(ix)         The
restrictions contained in this Section 4(o) shall not apply in connection with the issuance of any Excluded Securities. The Company
shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to
all.


 


(p)          Dilutive
Issuances. For so long as any Notes remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive
Issuance (as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon
conversion of any Notes any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue
upon conversion of the Notes without breaching the Company’s obligations under the rules or regulations of the Eligible Market
on which shares of Common Stock are then listed or quoted.


 


(q)          Passive
Foreign Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries to conduct their respective
businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign investment company
within the meaning of Section 1297 of the Code.


 


(r)          Restriction
on Redemption and Cash Dividends. So long as any Notes are outstanding, the Company shall not, directly or indirectly, redeem,
or declare or pay any cash dividend or distribution on, any securities of the Company without the prior express written consent
of the Buyers.


 




    35 


     

    

 


(s)          Corporate
Existence. So long as any Buyer beneficially owns any Notes, the Company shall not be party to any Fundamental Transaction
(as defined in the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions
set forth in the Notes.


 


(t)          Investor’s
Note Acknowledgement and Agreement. Each Investor, solely with respect to such Investor and the Note held by such Investor
and such Master Restricted Account related thereto (and not with respect to any other Investor or Note held by such other Investor
or such other Master Restricted Account related thereto), hereby acknowledges and agrees to the terms and conditions set forth
in Section 14(o) of the Note of such Investor.


 


(u)          Conversion
and Exercise Procedures. The form of Conversion Notice (as defined in the Notes) included in the Notes set forth the totality
of the procedures required of the Buyers in order to convert the Notes. Except as provided in Section 5(d), no additional legal
opinion, other information or instructions shall be required of the Buyers to convert their Notes. The Company shall honor conversions
of the Notes and shall deliver the Conversion Shares in accordance with the terms, conditions and time periods set forth in the
Notes.


 


(v)         Regulation
M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the distribution
of the Securities contemplated hereby.


 


(w)         General
Solicitation. None of the Company, any of its affiliates (as
defined in Rule 501(b) under the 1933 Act) or any person acting on behalf of the Company or such affiliate will solicit any offer
to buy or offer or sell the Securities by means of any form of general solicitation or general advertising within the meaning of
Regulation D, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine
or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.


 


(x)          Integration.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of the
Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration
of the Securities under the 1933 Act and the Company will take all action that is appropriate or necessary to assure that its offerings
of other securities will not be integrated for purposes of the 1933 Act or the rules and regulations of the Principal Market, with
the issuance of Securities contemplated hereby.


 


(y)          Notice
of Disqualification Events. The Company will notify the Buyers
in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event
that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.


 




    36 


     

    

 


(z)          Stockholder
Approval. The Company shall provide each stockholder entitled to vote at a special meeting of stockholders of the Company (the
“Stockholder Meeting”), which shall be promptly called and held not later than January 4, 2016 (the “Stockholder
Meeting Deadline”), a proxy statement, in a form reasonably acceptable to the Buyers and Kelley Drye & Warren LLP,
at the expense of the Company, with the Company obligated to reimburse the expenses of Kelley Drye & Warren LLP incurred in
connection therewith in an amount not exceed $5,000, soliciting each such stockholder’s affirmative vote at the Stockholder
Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the issuance of the Securities
in compliance with the rules and regulations of the Principal Market (the “Stockholder Approval”, and the date
the Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall use its reasonable
best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors of the Company
to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder
Approval by the Stockholder Meeting Deadline. If, despite the Company's reasonable best efforts the Stockholder Approval is not
obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to be held
on or prior to April 4, 2016. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained after
such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually thereafter
until such Stockholder Approval is obtained.


 


(aa)        Short
Sales. So long as any Notes remain outstanding, no holder of Notes or Registrable Securities bearing a restricted legend as
provided in Section 5(c) below (collectively, the “Restricted Persons” and each of the foregoing is referred
to herein as a “Restricted Person”) shall, directly or indirectly, engage in any “Short Sales” of
the Common Stock (other than any sale marked “short exempt” or any sale of shares deemed to be held “long”
hereunder). For purposes hereof, “Short Sales” shall mean “short sales” as defined in Rule 200 promulgated
under Regulation SHO under the 1934 Act (other than any sale marked “short exempt” or any sale of shares deemed to
be held “long” hereunder). Notwithstanding the foregoing, no “Short Sale” or “short” position
shall be deemed to exist, as a result of any failure by the Company (or its agents) to deliver Conversion Shares upon conversion
of the Notes or to timely remove any legend from any Registrable Securities, to any Restricted Person converting such Notes or
removing legends from any Registrable Securities, as applicable. For purposes of determining whether a Restricted Person is deemed
to have a “long” position in the Common Stock, at any given time of determination, such Restricted Person shall be
deemed to hold “long” all Common Stock that is either (i) then owned by such Restricted Person, if any, or (ii) issuable
to such Restricted Person as Conversion Shares pursuant to the terms of the Notes then held by such Restricted Person, if any,
pursuant to a valid Conversion Notice delivered to the Company on or prior to the applicable time of determination. Notwithstanding
the foregoing, nothing contained herein shall (without implication that the contrary would otherwise be true) prohibit any
Restricted Person from selling “long” (as defined under Rule 200 promulgated under Regulation SHO under the 1934 Act)
the Securities or any other Common Stock then owned by such Restricted Person.


 


(bb)       Closing
Documents. On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or cause to be
delivered, to each Buyer and Kelley Drye & Warren LLP a complete closing set of the executed Transaction Documents, Securities
and any other document required to be delivered to any party pursuant to Section 7 hereof or otherwise.


 




    37 


     

    

 


5.          REGISTER;
TRANSFER AGENT INSTRUCTIONS; LEGEND.


 


(a)          Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate
by notice to each holder of Securities), a register for the Notes in which the Company shall record the name and address of the
Person in whose name the Notes have been issued (including the name and address of each transferee), the principal amount of the
Notes held by such Person, the number of Conversion Shares issuable pursuant to the terms of the Notes held by such Person. The
Company shall keep the register open and available at all times during business hours for inspection of any Buyer or its legal
representatives.


 


(b)          Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer agent
in a form acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”) to issue certificates
or credit shares to the applicable balance accounts at The Depository Trust Company (“DTC”), registered in the
name of each Buyer or its respective nominee(s), for the Conversion Shares in such amounts as specified from time to time by each
Buyer to the Company upon conversion of the Notes. The Company represents and warrants that no instruction other than the Irrevocable
Transfer Agent Instructions referred to in this Section 5(b), and stop transfer instructions to give effect to Section 2(g)
hereof, will be given by the Company to its transfer agent with respect to the Securities, and that the Securities shall otherwise
be freely transferable on the books and records of the Company, as applicable, to the extent provided in this Agreement and the
other Transaction Documents. If a Buyer effects a sale, assignment or transfer of the Securities in accordance with Section 2(g),
the Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates or credit
shares to the applicable balance accounts at DTC in such name and in such denominations as specified by such Buyer to effect such
sale, transfer or assignment. In the event that such sale, assignment or transfer involves Conversion Shares sold, assigned or
transferred pursuant to an effective registration statement or in compliance with Rule 144, the transfer agent shall issue such
shares to such Buyer, assignee or transferee (as the case may be) without any restrictive legend in accordance with Section 5(d)
below. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly,
the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5(b) will be inadequate
and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5(b), that a Buyer
shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring
immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required.
The Company shall cause its counsel to issue the legal opinion referred to in the Irrevocable Transfer Agent Instructions to the
Company’s transfer agent on each Effective Date (as defined in the Registration Rights Agreement). Any fees (with respect
to the transfer agent, counsel to the Company or otherwise) associated with the issuance of such opinion or the removal of any
legends on any of the Securities shall be borne by the Company.


 




    38 


     

    

 


(c)          Legends.
Each Buyer understands that the Securities have been issued (or will be issued in the case of the Conversion Shares) pursuant to
an exemption from registration or qualification under the 1933 Act and applicable state securities laws, and except as set forth
below, the Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend
in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):


 


[NEITHER THE ISSUANCE AND SALE
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN][THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER
(IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 


(d)          Removal
of Legends. Certificates evidencing Securities shall not be required to contain the legend set forth in Section 5(c) above
or any other legend (i) while a registration statement (including a Registration Statement) covering the resale of such Securities
is effective under the 1933 Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor is not
an affiliate of the Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144 (provided
that a Buyer provides the Company with reasonable assurances that such Securities are eligible for sale, assignment or transfer
under Rule 144 which shall not include an opinion of Buyer’s counsel), (iv) in connection with a sale, assignment or other
transfer (other than under Rule 144), provided that such Buyer provides the Company with an opinion of counsel to such Buyer, in
a form reasonably acceptable to the Company, to the effect that such sale, assignment or transfer of the Securities may be made
without registration under the applicable requirements of the 1933 Act or (v) if such legend is not required under applicable requirements
of the 1933 Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC). If
a legend is not required pursuant to the foregoing, the Company shall no later than three (3) Trading Days (or such earlier date
as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade initiated on the
date such Buyer delivers such legended certificate representing such Securities to the Company) following the delivery by a Buyer
to the Company or the transfer agent (with notice to the Company) of a legended certificate representing such Securities (endorsed
or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer,
if applicable), together with any other deliveries from such Buyer as may be required above in this Section 5(d), as directed
by such Buyer, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated Securities
Transfer Program and such Securities are Conversion Shares, credit the aggregate number of shares of Common Stock to which such
Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal at
Custodian system or (B) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities Transfer
Program, issue and deliver (via reputable overnight courier) to such Buyer, a certificate representing such Securities that is
free from all restrictive and other legends, registered in the name of such Buyer or its designee (the date by which such credit
is so required to be made to the balance account of such Buyer’s or such Buyer’s designee with DTC or such certificate
is required to be delivered to such Buyer pursuant to the foregoing is referred to herein as the “Required Delivery Date”,
and the date such shares of Common Stock are actually delivered without restrictive legend to such Buyer or such Buyer’s
designee with DTC, as applicable, the “Share Delivery Date”). The Company shall be responsible for any transfer
agent fees or DTC fees with respect to any issuance of Securities or the removal of any legends with respect to any Securities
in accordance herewith.


 




    39 


     

    

 


(e)          Failure
to Timely Deliver; Buy-In. If the Company fails to fail, for any reason or for no reason, to issue and deliver (or cause to
be delivered) to a Buyer (or its designee) by the Required Delivery Date, either (I) if the Transfer Agent is not participating
in the DTC Fast Automated Securities Transfer Program, a certificate for the number of Conversion Shares to which such Buyer is
entitled and register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in
the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer or such Buyer’s designee
with DTC for such number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II)
if the Registration Statement covering the resale of the Conversion Shares submitted for legend removal by such Buyer pursuant
to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares
and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so
notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate
number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or
its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately
foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in
clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the
Company shall pay in cash to such Buyer on each day after the Share Delivery Date and during such Delivery Failure an amount equal
to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required
Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing
as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable
Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required
Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the
Company shall fail to issue and deliver a certificate to a Buyer and register such shares of Common Stock on the Company's share
register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account
of such Buyer or such Buyer’s designee with DTC for the number of shares of Common Stock to which such Buyer submitted for
legend removal by such Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after such
Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that
such Buyer anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading
Days after such Buyer’s request and in such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal
to such Buyer’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any, for the shares
of Common Stock so purchased) (the “Buy-In Price”), at which point the Company’s obligation to so deliver
such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly
honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such
Buyer’s designee with DTC representing such number of shares of Common Stock that would have been so delivered if the Company
timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In
Price over the product of (A) such number of shares of Conversion Shares that the Company was required to deliver to such Buyer
by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as defined in the Notes) of the Common Stock on
any Trading Day during the period commencing on the date of the delivery by such Buyer to the Company of the applicable Conversion
Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right
to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares
of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding
anything herein to the contrary, with respect to any given Notice Failure and/or Delivery Failure, this Section 5(e) shall not
apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice
Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.


 




    40 


     

    

 


(f)          FAST
Compliance. While any Notes remain outstanding, the Company shall maintain a transfer agent that participates in the DTC Fast
Automated Securities Transfer Program.


 


6.          CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.


 


(a)          The
obligation of the Company hereunder to issue and sell the Notes to each Buyer at the Closing is subject to the satisfaction,
at or before the Closing Date, 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 each Buyer with prior written notice
thereof: 


 


(i)          Such
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(ii)         Such
Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of the lead Buyer, the amounts
withheld pursuant to Section 4(g)) for the Note being purchased by such Buyer at the Closing by wire transfer of immediately
available funds in accordance with the Flow of Funds Letter.


 




    41 


     

    

 


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


 


7.          CONDITIONS
TO EACH BUYER’S OBLIGATION TO PURCHASE.


 


(a)          The
obligation of each Buyer hereunder to purchase its Note at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may
be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: 


 


(i)          The
Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to such Buyer a Note (in such original principal
amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers) being purchased by such Buyer
at the Closing pursuant to this Agreement.


 


(ii)         Such
Buyer and the Placement Agent shall have received the opinion of Foley & Lardner LLP, the Company’s counsel, dated as
of the Closing Date, in the form acceptable to such Buyer.


 


(iii)        The
Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such
Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.


 


(iv)        The
Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of
its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office)
of such jurisdiction of formation as of a date within ten (10) days of the Closing Date.


 


(v)         The
Company shall have delivered to such Buyer a certificate evidencing the Company’s and each Subsidiary’s qualification
as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which
the Company and each Subsidiary conducts business and is required to so qualify, as of a date within ten (10) days of the Closing
Date.


 


(vi)        The
Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Delaware Secretary
of State within ten (10) days of the Closing Date.


 




    42 


     

    

 


(vii)       Each
Subsidiary shall have delivered to such Buyer a certified copy of its Certificate of Incorporation (or such equivalent organizational
document) as certified by the Secretary of State (or comparable office) of such Subsidiary’s jurisdiction of incorporation
within ten (10) days of the Closing Date.


 


(viii)      The
Company and each Subsidiary shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by
the Secretary of the Company and each Subsidiary and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b)
as adopted by the Company’s and each Subsidiary’s board of directors in a form reasonably acceptable to such Buyer,
(ii) the Certificate of Incorporation of the Company and the organizational documents of each Subsidiary and (iii) the Bylaws
of the Company and the bylaws of each Subsidiary, each as in effect at the Closing.


 


(ix)         Each
and every representation and warranty of the Company shall be true and correct in all material respects (other than representations
and warranties qualified by Material Adverse Effect or materiality, which shall be true and correct in all respects) as of the
date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that
speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied
and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with
by the Company pursuant to the Transaction Documents at or prior to the Closing Date. Such Buyer shall have received a certificate,
duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such
other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.


 


(x)          The
Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of
Common Stock outstanding as of a date within two (2) calendar days of the Closing Date immediately prior to the Closing.


 


(xi)         The
Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been
suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market.


 


(xii)        Except
as contemplated by Section 4(z) hereof, the Company shall have obtained all governmental, regulatory or third party consents and
approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market,
if any.


 


(xiii)       No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents.


 




    43 


     

    

 


(xiv)      Since
the date of execution of this Agreement, no event or series of events shall have occurred that would reasonably be expected to
have or result in a Material Adverse Effect.


 


(xv)       Except
as contemplated by this Agreement, including Section 4(z) hereof, the Company shall have obtained any approval required by the
Eligible Market on which the Common Stock is then traded to list or designate for quotation (as the case may be) the Conversion
Shares.


 


(xvi)      Within
two (2) Business Days prior to the Closing, the Company shall have delivered or caused to be delivered to each Buyer (A) certified
copies of requests for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the
Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of the
Buyers, desirable to perfect the security interests purported to be created by the Notes, together with copies of such financing
statements, none of which, except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in
the Notes), and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results,
except as otherwise agreed to in writing by the Buyers, shall not show any such Liens; and (B) a perfection certificate, duly completed
and executed by the Company and each of its Subsidiaries, in form and substance satisfactory to the Buyers.


 


(xvii)     Each
Control Account Bank shall have duly executed and delivered to such Buyer a Control Account Agreement with respect to such Buyer’s
Master Restricted Account of the Company held at such Control Account Bank.


 


(xviii)    Such
Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company,
setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company with respect to the portion of the
Purchase Price set forth in column (5) of the Schedule of Buyers and, the wire instructions of the Control Account Bank with respect
to the portion of the Purchase Price set forth in column (6) of the Schedule of Buyers related to the Master Restricted Account
(the “Flow of Funds Letter”).


 


(xix)      The
Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the
transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.


 


8.          TERMINATION.


 


In the event that the
Closing shall not have occurred with respect to a Buyer within five (5) Business Days of the date hereof due to the Company’s
failure to satisfy the conditions set forth in Section 7 hereof, then such Buyer shall have the right to terminate its obligations
under this Agreement with respect to itself at any time on or after the close of business on such date by delivering a written
notice to that effect to each other party to this Agreement, without liability of such Buyer to any other party; provided, however,
(i) the right to terminate this Agreement under this Section 8 shall not be available to such Buyer if the failure of the
transactions contemplated by this Agreement to have been consummated by such date is the result of such Buyer’s breach of
this Agreement and (ii) the abandonment of the sale and purchase of the Notes shall be applicable only to such Buyer providing
such written notice, provided further that no such termination shall affect any obligation of the Company under this Agreement
to reimburse the lead Buyer for the expenses described in Section 4(g) above. Nothing contained in this Section 8 shall
be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or
the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations
under this Agreement or the other Transaction Documents.


 




    44 


     

    

 


9.           MISCELLANEOUS.


 


(a)          Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or under any of the other Transaction Documents or with any transaction contemplated hereby or thereby,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address
for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted
by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal action
against the Company in any other jurisdiction to collect on the Company’s obligations to such Buyer or to enforce a judgment
or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT
TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.


 


(b)          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. In the event that
any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an
executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such signature page were an original thereof.


 




    45 


     

    

 


(c)          Headings;
Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine,
feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include”
and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision
in which they are found.


 


(d)          Severability;
Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations
or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the
parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
Notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document (and without implication
that the following is required or applicable), it is the intention of the parties that in no event shall amounts and value paid
by the Company and/or any of its Subsidiaries (as the case may be), or payable to or received by any of the Buyers, under the Transaction
Documents (including without limitation, any amounts that would be characterized as “interest” under applicable law)
exceed amounts permitted under any applicable law. Accordingly, if any obligation to pay, payment made to any Buyer, or collection
by any Buyer pursuant to the Transaction Documents is finally judicially determined to be contrary to any such applicable law,
such obligation to pay, payment or collection shall be deemed to have been made by mutual mistake of such Buyer, the Company and
its Subsidiaries and such amount shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment shall be effected, to the extent
necessary, by reducing or refunding, at the option of such Buyer, the amount of interest or any other amounts which would constitute
unlawful amounts required to be paid or actually paid to such Buyer under the Transaction Documents. For greater certainty, to
the extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by such Buyer under any
of the Transaction Documents or related thereto are held to be within the meaning of “interest” or another applicable
term to otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which they relate.


 




    46 


     

    

 


(e)          Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the
Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions
by any Buyer with respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement,
the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and
therein contain the entire understanding of the parties solely with respect to the matters covered herein and therein; provided,
however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect
on any agreements any Buyer has entered into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries
prior to the date hereof with respect to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or
amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any
other Person, in any agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries
and any Buyer, or any instruments any Buyer received from the Company and/or any of its Subsidiaries prior to the date hereof,
and all such agreements and instruments shall continue in full force and effect. Except as specifically set forth herein or therein,
neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. For
clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Required Holders (as defined below), and any amendment to any provision of
this Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities,
as applicable; provided that no such amendment shall be effective to the extent that it (A) applies to less than all of the holders
of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without such Buyer’s prior written
consent (which may be granted or withheld in such Buyer’s sole discretion). No waiver shall be effective unless it is in
writing and signed by an authorized representative of the waiving party, provided that the Required Holders may waive any provision
of this Agreement, and any waiver of any provision of this Agreement made in conformity with the provisions of this Section 9(e)
shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be effective to the
extent that it (1) applies to less than all of the holders of the Securities then outstanding (unless a party gives a waiver as
to itself only) or (2) imposes any obligation or liability on any Buyer without such Buyer’s prior written consent (which
may be granted or withheld in such Buyer’s sole discretion). No consideration (other than reimbursement of legal fees) shall
be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties to the Transaction Documents, all holders of the Notes (except
that a holder of Notes that does not have any of its Notes secured by cash amounts in a Master Control Account will not be entitled
to any consideration granted to any other holder of Notes in connection with any amendment, consent, waiver or modification related
to any provision relating to any Master Control Account). From the date hereof and while any Notes are outstanding, the Company
shall not be permitted to receive any consideration from a Buyer or a holder of Notes that is not otherwise contemplated by the
Transaction Documents in order to, directly or indirectly, induce the Company or any Subsidiary (i) to treat such Buyer or holder
of Notes in a manner that is more favorable than to other similarly situated Buyers or holders of Notes, or (ii) to treat any Buyer(s)
or holder(s) of Notes in a manner that is less favorable than the Buyer or holder of Notes that is paying such consideration; provided,
however, that the determination of whether a Buyer has been treated more or less favorably than another Buyer shall disregard any
securities of the Company purchased or sold by any Buyer. The Company has not, directly or indirectly, made any agreements with
any Buyers relating to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth
in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement,
no Buyer has made any commitment or promise or has any other obligation to provide any financing to the Company, any Subsidiary
or otherwise. As a material inducement for each Buyer to enter into this Agreement, the Company expressly acknowledges and agrees
that (x) no due diligence or other investigation or inquiry conducted by a Buyer, any of its advisors or any of its representatives
shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s
representations and warranties contained in this Agreement or any other Transaction Document and (y) unless a provision of this
Agreement or any other Transaction Document is expressly preceded by the phrase “except as disclosed in the SEC Documents,”
nothing contained in any of the SEC Documents shall affect such Buyer’s right to rely on, or shall modify or qualify in any
manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other
Transaction Document. “Required Holders” means (I) prior to the Closing Date, each Buyer entitled to purchase
Notes at the Closing and (II) on or after the Closing Date, holders of a majority of the Registrable Securities as of such time
(excluding any Registrable Securities held by the Company or any of its Subsidiaries as of such time) issued or issuable hereunder
or pursuant to the Notes (or the Buyers, with respect to any waiver or amendment of Section 4(o)); provided, that such majority
must include Alto Opportunity Master Fund, SPC (including any successor and assigns, collectively, “Alto”),
so long as Alto beneficially owns at least $500,000 in aggregate principal amount of Notes.


 




    47 


     

    

 


(f)          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: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent
by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party) or electronic mail; or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses
for such communications shall be:


 


If to the Company:


 


Rock Creek Pharmaceuticals, Inc.


2040 Whitfield Ave.


Ste. 300


Sarasota Florida 34240


Telephone: (941) 251-0497


Facsimile: (941) 251-0496


Attention: Chief Financial Officer


E-Mail: wmcmahon@rockcreekpharmaceuticals.com


 




    48 


     

    

 


With a copy (for informational purposes only) to:


 


Foley & Lardner LLP


100 N. Tampa Street, Suite 2700


Tampa, FL 33602


Telephone: (813)229-2300


Facsimile: (813) 221-4210


Attention: Curt P. Creely, Esq.


E-Mail: ccreely@foley.com


 


If to the Transfer Agent:


 


Wells Fargo Shareowner Services


1110 Centre Pointe Curve, Suite 101


Mendota Heights, MN 55120


Attention: Marty Knapp


Tel: (651) 450-4027


WFSSRelationshipManagement@wellsfargo.com


 


If to a Buyer, to its address, e-mail address
and facsimile number set forth on the Schedule of Buyers, with copies to such Buyer’s representatives as set forth on the
Schedule of Buyers,


 


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

101 Park Avenue

New York, NY 10178

Telephone: (212) 808-7540

Facsimile: (212) 808-7897

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


or to such other address, e-mail 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, provided that Kelley Drye & Warren LLP shall only
be provided copies of notices sent to the lead Buyer. Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine or
e-mail containing the time, date, recipient facsimile number and, with respect to each facsimile transmission, an image of the
first page of such transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 




    49 


     

    

 


(g)         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 any of the Notes. The Company shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Required Holders, including, without limitation, by way of a Fundamental Transaction
(as defined in the Notes) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions
set forth in the Notes). A Buyer may assign some or all of its rights hereunder in connection with any transfer of any of its Securities
without the consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned
rights.


 


(h)          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, other than
the Indemnitees referred to in Section 9(k).


 


(i)          Survival.
Unless this Agreement is terminated pursuant to Section 8, the representations, warranties, agreements and covenants shall survive
the Closing. Each Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder.


 


(j)          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.


 


(k)          Indemnification.
In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless each Buyer and each holder of any Securities and all of their stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including,
without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation
or warranty made by the Company or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement
or obligation of the Company or any Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit,
proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action
brought on behalf of the Company or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from
(A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (C) any disclosure
properly made by such Buyer pursuant to Section 4(i), or (D) the status of such Buyer or holder of the Securities either as
an investor in the Company pursuant to the transactions contemplated by the Transaction Documents or as a party to this Agreement
(including, without limitation, as a party in interest or otherwise in any action or proceeding for injunctive or other equitable
relief). To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable
law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 9(k)
shall be the same as those set forth in Section 6 of the Registration Rights Agreement.


 




    50 


     

    

 


(l)           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. No specific representation or warranty shall limit the generality
or applicability of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock
and any other numbers in this Agreement that relate to the Common Stock shall be automatically adjusted for any stock splits, stock
dividends, stock combinations, recapitalizations or other similar transactions that occur with respect to the Common Stock after
the date of this Agreement. It is expressly understood and agreed that for all purposes of this Agreement, and without implication
that the contrary would otherwise be true, neither transactions nor purchases nor sales shall include the location and/or reservation
of borrowable shares of Common Stock.


 


(m)         Remedies.
Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have
all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted
at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having
any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond
or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights
granted by law. Furthermore, the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge
any or all of its or such Subsidiary’s (as the case may be) obligations under the Transaction Documents, any remedy at law
may prove to be inadequate relief to the Buyers. The Company therefore agrees that the Buyers shall be entitled to seek specific
performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction
in any such case without the necessity of proving actual damages and without posting a bond or other security. The remedies provided
in this Agreement and the other Transaction Documents shall be cumulative and in addition to all other remedies available under
this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other
injunctive relief).


 


(n)         Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction
Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any
Subsidiary does not timely perform its related obligations within the periods therein provided, then such Buyer may rescind or
withdraw, in its sole discretion from time to time upon written notice to the Company or such Subsidiary (as the case may be),
any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.


 




    51 


     

    

 


(o)          Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of
the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such payment
or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company,
a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal
law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other
Transaction Documents are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement
and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be
converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange
Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Agreement,
the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation.


 


(p)          Judgment
Currency.


 


(i)          If
for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction
Document in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter
in this Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement,
the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:


 


(1)         the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(2)         the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as
of which such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment
Conversion Date”).


 


(ii)         If
in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change
in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted
at the Exchange Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with
the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion
Date.


 




    52 


     

    

 


(iii)        Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.


 


(q)          Independent
Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents are several and
not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations
of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action
taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the
Buyers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption
that the Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with
respect to such obligations or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges
that the Buyers are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such
obligations or the transactions contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant
to the Transaction Documents has been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other
Buyer has acted as agent for such Buyer in connection with such Buyer making its investment hereunder and that no other Buyer will
be acting as agent of such Buyer in connection with monitoring such Buyer’s investment in the Securities or enforcing its
rights under the Transaction Documents. The Company and each Buyer confirms that each Buyer has independently participated with
the Company and its Subsidiaries in the negotiation of the transaction contemplated hereby with the advice of its own counsel and
advisors. Each Buyer shall be entitled to independently protect and enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other Buyer to be
joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate the purchase and
sale of the Securities contemplated hereby was solely in the control of the Company, not the action or decision of any Buyer, and
was done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested to do so by
any Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction
Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its Subsidiaries and the Buyers
collectively and not between and among the Buyers.


 


[signature pages follow]


 




    53 


     

    

 


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


 


	 	COMPANY:
	 	 
	 	ROCK CREEK PHARMACEUTICALS, INC.
	 	 	 
	 	By:	/s/ Michael J. Mullan
	 	 	Name: Michael J. Mullan
	 	 	Title: Chief Executive Officer



 







     


     


    

 


Exhibit
A


 


[FORM OF SENIOR SECURED
CONVERTIBLE NOTE]


 


NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE
TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144
OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE
TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii) AND 19(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY,
THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iii)
OF THIS NOTE.


 


Rock
Creek Pharmaceuticals, Inc.


 


Senior
Secured Convertible Note


 


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


 


FOR VALUE RECEIVED,
Rock Creek Pharmaceuticals, Inc., a Delaware corporation (the “Company”), hereby promises to pay to the order
of [BUYER] or its registered assigns (“Holder”) the amount set forth above as the Original Principal Amount
(as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when
due, whether upon the Maturity Date, on any Installment Date with respect to the Installment Amount due on such Installment Date
(each as defined below), or upon acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to
pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate (as defined below) from
the date set forth above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable,
whether upon the Maturity Date, on any Installment Date with respect to the Installment Amount due on such Installment Date, or
upon acceleration, conversion, redemption or otherwise (in each case in accordance with the terms hereof). This Senior Secured
Convertible Note (including all Senior Secured Convertible Notes issued in exchange, transfer or replacement hereof, this “Note”)
is one of an issue of Senior Secured Convertible Notes issued pursuant to the Securities Purchase Agreement, dated as of October
14, 2015 (the “Subscription Date”), by and among the Company and the investors (the “Buyers”)
referred to therein, as amended from time to time (collectively, the “Notes”, and such other Senior Secured
Convertible Notes, the “Other Notes”). Certain capitalized terms used herein are defined in Section 32.


 




     


     


    

 


1.            PAYMENTS
OF PRINCIPAL. On each Installment Date, the Company shall pay to the Holder an amount equal to the Installment Amount due on
such Installment Date in accordance with Section 8. On the Maturity Date, the Company shall pay to the Holder an amount in cash
(excluding any amounts paid in shares of Common Stock on the Maturity Date in accordance with Section 8) representing all outstanding
Principal, accrued and unpaid Interest and accrued and unpaid Late Charges (as defined in Section 25(c)) on such Principal and
Interest. Other than as specifically permitted by this Note, the Company may not prepay any portion of the outstanding Principal,
accrued and unpaid Interest or accrued and unpaid Late Charges on Principal and Interest, if any.


 


2.            INTEREST;
INTEREST RATE.


 


(a)          Interest
on this Note shall commence accruing on the Issuance Date and shall be computed on the basis of a 360-day year and twelve 30-day
months and shall be payable in arrears on each Interest Date and shall compound each calendar month and shall be payable in accordance
with the terms of this Note. Interest shall be paid (i) on each Interest Date occurring on an Installment Date in accordance with
Section 8 as part of the applicable Installment Amount due on the applicable Installment Date, and (ii) with respect to each other
Interest Date, on such Interest Date, in cash.


 


(b)          Prior
to the payment of Interest on an Interest Date, Interest on this Note shall accrue at the Interest Rate and be payable by way of
inclusion of the Interest in the Conversion Amount on each Conversion Date in accordance with Section 3(b)(i) or upon any redemption
in accordance with Section 12, or any required payment upon any Bankruptcy Event of Default. From and after the occurrence and
during the continuance of any Event of Default, the Interest Rate shall automatically be increased to fifteen percent (15.0%) per
annum, simple interest (the “Default Rate”). In the event that such Event of Default is subsequently cured,
the adjustment referred to in the preceding sentence shall cease to be effective as of the calendar day immediately following the
date of such cure; provided that the Interest as calculated and unpaid at such increased rate during the continuance of such Event
of Default shall continue to be payable with respect to the days after the occurrence of such Event of Default through and including
the date of such cure of such Event of Default.


 


3.             CONVERSION
OF NOTES. At any time after the Issuance Date, this Note shall be convertible into validly issued, fully paid and non-assessable
shares of Common Stock (as defined below), on the terms and conditions set forth in this Section 3.


 


(a)           Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the Issuance Date, the Holder shall be entitled
to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into validly issued, fully paid and non-assessable
shares of Common Stock in accordance with Section 3(c), at the Conversion Rate (as defined below). The Company shall not issue
any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share
of Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole share. The Company shall
pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses
of the Transfer Agent (as defined below)) that may be payable with respect to the issuance and delivery of Common Stock upon conversion
of any Conversion Amount.


 




    	 	2	 



     


    

 


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


 


(i)          “Conversion
Amount” means the sum of (x) portion of the Principal to be converted, redeemed or otherwise with respect to which this
determination is being made, (y) all accrued and unpaid Interest with respect to such portion of the Principal amount and accrued
and unpaid Late Charges with respect to such portion of such Principal and such Interest and (z) the applicable Make-Whole Amount,
if any.


 


(ii)         “Conversion
Price” means, as of any Conversion Date or other date of determination, $1.12, subject to adjustment as provided herein.


 


(c)           Mechanics
of Conversion.


 


(i)          Optional
Conversion. To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”),
the Holder shall deliver (whether via facsimile, electronic mail or otherwise), for receipt on or prior to 9:00 p.m., New York
time, on such date, a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion
Notice”) to the Company. If required by Section 3(c)(iii), within three (3) Trading Days following a conversion of this
Note as aforesaid, the Holder shall surrender this Note to a nationally recognized overnight delivery service for delivery to the
Company (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction as contemplated
by Section 19(b)). On or before the first (1st) Trading Day following the date of receipt of a Conversion Notice, the Company shall
transmit by facsimile or electronic mail an acknowledgment of confirmation, in the form attached hereto as Exhibit II, of
receipt of such Conversion Notice to the Holder and the Company’s transfer agent (the “Transfer Agent”)
which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the
terms herein. On or before the third (3rd) Trading Day following the date on which the Company has received a Conversion Notice
(or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a
trade initiated on the applicable Conversion Date of such shares of Common Stock issuable pursuant to such Conversion Notice) (the
“Share Delivery Deadline”), the Company shall (1) provided that the Transfer Agent is participating in The Depository
Trust Company’s (“DTC”) Fast Automated Securities Transfer Program, credit such aggregate number of shares
of Common Stock to which the Holder shall be entitled pursuant to such conversion to the Holder’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at Custodian system or (2) if the Transfer Agent is not participating in
the DTC Fast Automated Securities Transfer Program, upon the request of the Holder, issue and deliver (via reputable overnight
courier) to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee,
for the number of shares of Common Stock to which the Holder shall be entitled pursuant to such conversion. If this Note is physically
surrendered for conversion pursuant to Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal
portion of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than three
(3) Business Days after receipt of this Note and at its own expense, issue and deliver to the Holder (or its designee) a new Note
(in accordance with Section 19(d)) representing the outstanding Principal not converted. The Person or Persons entitled to receive
the shares of Common Stock issuable upon a conversion of this Note shall be treated for all purposes as the record holder or holders
of such shares of Common Stock on the Conversion Date. In the event of a partial conversion of this Note pursuant hereto, the Principal
amount converted shall be deducted from the Installment Amount(s) relating to the Installment Date(s) as set forth in the applicable
Conversion Notice. Notwithstanding anything to the contrary contained in this Note or the Registration Rights Agreement, after
the effective date of the Registration Statement (as defined in the Registration Rights Agreement) and prior to the Holder’s
receipt of the notice of a Grace Period (as defined in the Registration Rights Agreement), the Company shall cause the Transfer
Agent to deliver unlegended shares of Common Stock to the Holder (or its designee) in connection with any sale of Registrable Securities
(as defined in the Registration Rights Agreement) with respect to which the Holder has entered into a contract for sale, and delivered
a copy of the prospectus included as part of the particular Registration Statement to the extent applicable, and for which the
Holder has not yet settled.


 




    	 	3	 



     


    

 


(ii)         Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share
Delivery Deadline, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program,
to issue and deliver to the Holder (or its designee) a certificate for the number of shares of Common Stock to which the Holder
is entitled and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating
in the DTC Fast Automated Securities Transfer Program, to credit the balance account of the Holder or the Holder’s designee
with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of this Note
(as the case may be) or (II) if the Registration Statement covering the resale of the shares of Common Stock that are the subject
of the Conversion Notice (the “Unavailable Conversion Shares”) is not available for the resale of such Unavailable
Conversion Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights
Agreement (x) so notify the Holder and (y) deliver the shares of Common Stock electronically without any restrictive legend by
crediting such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s
or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the
immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event
described in clause (I) above, a “Conversion Failure”), then, in addition to all other remedies available to
the Holder, (1) the Company shall pay in cash to the Holder on each day after such Share Delivery Deadline that the issuance of
such shares of Common Stock is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares
of Common Stock not issued to the Holder on or prior to the Share Delivery Deadline and to which the Holder is entitled, multiplied
by (B) any trading price of the Common Stock selected by the Holder in writing as in effect at any time during the period beginning
on the applicable Conversion Date and ending on the applicable Share Delivery Deadline and (2) the Holder, upon written notice
to the Company, may void its Conversion Notice with respect to, and retain or have returned (as the case may be) any portion of
this Note that has not been converted pursuant to such Conversion Notice, provided that the voiding of a Conversion Notice shall
not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice pursuant to
this Section 3(c)(ii) or otherwise. In addition to the foregoing, if on or prior to the Share Delivery Deadline either (A) if the
Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company shall fail to issue and
deliver to the Holder (or its designee) a certificate and register such shares of Common Stock on the Company’s share register
or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, the Transfer Agent shall fail
to credit the balance account of the Holder or the Holder’s designee with DTC for the number of shares of Common Stock to
which the Holder is entitled upon the Holder’s conversion hereunder or pursuant to the Company’s obligation pursuant
to clause (II) below or (B) a Notice Failure occurs, and if on or after such Share Delivery Deadline the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of all or any portion
of the number of shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a
“Buy-In”), then, in addition to all other remedies available to the Holder, the Company shall, within three
(3) Business Days after receipt of the Holder’s request and in the Holder’s discretion, either: (I) pay cash to the
Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses,
if any) for the shares of Common Stock so purchased (including, without limitation, by any other Person in respect, or on behalf,
of the Holder) (the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such
certificate (and to issue such shares of Common Stock) or credit the balance account of such Holder or such Holder’s designee,
as applicable, with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion
hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate, or (II) promptly honor its obligation
to so issue and deliver to the Holder a certificate or certificates representing such shares of Common Stock or credit the balance
account of such Holder or such Holder’s designee, as applicable, with DTC for the number of shares of Common Stock to which
the Holder is entitled upon the Holder’s conversion hereunder (as the case may be) and pay cash to the Holder in an amount
equal to the excess (if any) of the Buy-In Price over the product of (x) such number of shares of Common Stock multiplied by (y)
the lowest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date of the applicable
Conversion Notice and ending on the date of such issuance and payment under this clause (II) (the “Buy-In Payment Amount”).
Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including,
without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the conversion
of this Note as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given
Notice Failure and/or Conversion Failure, this Section 3(c)(ii) shall not apply to the Holder to the extent the Company has already
paid such amounts in full to such Holder with respect to such Notice Failure and/or Conversion Failure, as applicable, pursuant
to the analogous sections of the Securities Purchase Agreement.


 




    	 	4	 



     


    

 


(iii)        Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and
addresses of the holders of each Note and the principal amount of the Notes and Restricted Principal held by such holders held
by such holders (the “Registered Notes”). The entries in the Register shall be conclusive and binding for all
purposes absent manifest error. The Company and the holders of the Notes shall treat each Person whose name is recorded in the
Register as the owner of a Note for all purposes (including, without limitation, the right to receive payments of Principal and
Interest hereunder) notwithstanding notice to the contrary. A Registered Note may be assigned, transferred or sold in whole or
in part only by registration of such assignment or sale on the Register. Upon its receipt of a written request to assign, transfer
or sell all or part of any Registered Note by the holder thereof, the Company shall record the information contained therein in
the Register and issue one or more new Registered Notes in the same aggregate principal amount as the principal amount of the surrendered
Registered Note to the designated assignee or transferee pursuant to Section 19, provided that if the Company does not so
record an assignment, transfer or sale (as the case may be) of all or part of any Registered Note within two (2) Business Days
of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer or sale (as the
case may be). Notwithstanding anything to the contrary set forth in this Section 3, following conversion of any portion of
this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company
unless (A) the full Conversion Amount represented by this Note is being converted (in which event this Note shall be delivered
to the Company following conversion thereof as contemplated by Section 3(c)(i)) or (B) the Holder has provided the Company with
prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Note upon physical surrender
of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and Late Charges converted and/or
paid (as the case may be) or Restricted Principal becoming unrestricted and the dates of such conversions, Control Account Release
(as defined below) and/or payments (as the case may be) or shall use such other method, reasonably satisfactory to the Holder and
the Company, so as not to require physical surrender of this Note upon conversion. If the Company does not update the Register
to record such Principal, Interest and Late Charges converted and/or paid (as the case may be) or Restricted Principal becoming
unrestricted and the dates of such conversions, Control Account Release and/or payments (as the case may be) within two (2) Business
Days of such occurrence, then the Register shall be automatically deemed updated to reflect such occurrence.


 


(iv)         Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one holder of Notes for
the same Conversion Date and the Company can convert some, but not all, of such portions of the Notes submitted for conversion,
the Company, subject to Section 3(d), shall convert from each holder of Notes electing to have Notes converted on such date a pro
rata amount of such holder’s portion of its Notes submitted for conversion based on the principal amount of Notes submitted
for conversion on such date by such holder relative to the aggregate principal amount of all Notes submitted for conversion on
such date. In the event of a dispute as to the number of shares of Common Stock issuable to the Holder in connection with a conversion
of this Note, the Company shall issue to the Holder the number of shares of Common Stock not in dispute and resolve such dispute
in accordance with Section 24.


 




    	 	5	 



     


    

 


(d)           Limitations
on Conversions.


 


(i)           Beneficial
Ownership Limitation. The Company shall not affect the conversion of any portion of this Note, and the Holder shall not have
the right to convert any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be
null and void and treated as if never made, to the extent that after giving effect to such conversion, the Holder together with
the other Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”)
of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence,
the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include
the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock
issuable upon conversion of this Note with respect to which the determination of such sentence is being made, but shall exclude
shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted portion of this Note beneficially
owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or nonconverted portion
of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or
warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous
to the limitation contained in this Section 3(d)(i). For purposes of this Section 3(d)(i), beneficial ownership shall be calculated
in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock
the Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage, the Holder may rely on the number
of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public
announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number
of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion
Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding
Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the
extent that such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this
Section 3(d)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of shares of Common Stock
to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder,
the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares
of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including this Note, by the Holder and any other Attribution
Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of
Common Stock to the Holder upon conversion of this Note results in the Holder and the other Attribution Parties being deemed to
beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined
under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’
aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and
void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery
of a written notice to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first
(61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage not in excess of
9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the
sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply
only to the Holder and the other Attribution Parties and not to any other holder of Notes that is not an Attribution Party of the
Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Note in excess of the Maximum
Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or
Rule 16a-1(a)(1) of the 1934 Act. No prior inability to convert this Note pursuant to this paragraph shall have any effect on the
applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section
3(d)(i) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent
with the intended beneficial ownership limitation contained in this Section 3(d)(i) or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall
apply to a successor holder of this Note.


 




    	 	6	 



     


    

 


(ii)          Exchange
Cap. The Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms
of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the
Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching the Company’s
obligations under the rules or regulations of the Principal Market (the number of shares which may be issued without violating
such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable,
the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the
approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock
upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written
opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory
to the Holder. Until such approval or such written opinion is obtained, no Buyer shall be issued in the aggregate, upon conversion
of any Notes or otherwise pursuant to the terms of this Note, shares of Common Stock in an amount greater than the product of (i)
the Exchange Cap multiplied by (ii) the quotient of (A) the aggregate original principal amount of Notes issued to such Buyer pursuant
to the Securities Purchase Agreement on the Closing Date divided by (B) the aggregate original principal amount of all Notes issued
to the Buyers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each Buyer, the “Exchange
Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s Notes, the transferee
shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation with respect to such portion of such Notes
so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange
Cap Allocation so allocated to such transferee. Upon conversion in full of a holder’s Notes, the difference (if any) between
such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s
conversion in full of such holder’s Notes shall be allocated to the respective Exchange Cap Allocations of the remaining
holders of Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Notes then held by each such holder.
In the event that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii) (the “Exchange
Cap Shares”) after the date that is 80 calendar days following the Issuance Date, the Company shall pay cash in exchange
for the cancellation of such shares of Common Stock at a price equal to the sum of (i) the product of (x) such number of Exchange
Cap Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date
the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the
date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment
Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively,
the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall
be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap
Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange
Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange
Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to
the applicable Share Delivery Deadline.


 




    	 	7	 



     


    

 


(e)          Right
of Alternate Conversion.


 


(i)            General.


 


(1)         Alternate
Optional Conversion. Subject to the provisions of Section 3(d), at any time, at the option of the Holder, the Holder may convert
(each, an “Alternate Optional Conversion”, and the date of such Alternate Optional Conversion, an “Alternate
Optional Conversion Date”) all, or any part, of the Conversion Amount of this Note into shares of Common Stock (such
portion of the Conversion Amount subject to such Alternate Optional Conversion, the “Alternate Optional Conversion Amount”)
at the Alternate Conversion Price; provided, that shares of Common Stock sold pursuant to an Alternate Optional Conversion by the
Holder (or its Affiliates), in the aggregate, on any Trading Day may not exceed 25% of the aggregate daily share trading volume
(as reported on Bloomberg) of the Common Stock on the Principal Market as of such Trading Day. In the event that the Holder shall
sell or otherwise transfer all or any portion of this Note on any Alternate Optional Conversion Date, each transferee shall be
allocated such portion of the Conversion Amount eligible to be an Alternate Optional Conversion Amount on such Alternate Optional
Conversion Date, if any, as specified in the documentation with respect to such transfer (or, if unspecified therein, pro rata
based on the portion of this Note transferred);


 


(2)         Alternate
Conversion Upon an Event of Default. At any time during any Event of Default Redemption Right Period (as defined below) or
if the Holder has delivered an Event of Default Redemption Notice to the Company), the Holder may, at the Holder’s option,
convert (each, an “Alternate Event of Default Conversion” and together with each Alternate Optional Conversion,
each, an “Alternate Conversion”, and the date of such Alternate Event of Default Conversion, each, an “Alternate
Event of Default Conversion Date”, and together with each Alternate Optional Conversion Date, each, an “Alternate
Conversion Date”) all, or any part of, the Conversion Amount (such portion of the Conversion Amount subject to such Alternate
Conversion, the “Alternate Event of Default Conversion Amount” and together with each Alternate Optional Conversion
Amount, each, an “Alternate Conversion Amount”) into shares of Common Stock at the Alternate Conversion Price.


 


(ii)           Mechanics
of Alternate Conversion. On any Alternate Conversion Date, the Holder may voluntarily convert any Alternate Conversion Amount
pursuant to Section 3(c) (with “Alternate Conversion Price” replacing “Conversion Price” for all purposes
hereunder with respect to such Alternate Conversion and, solely with respect to the calculation of the number of shares of Common
Stock issuable upon conversion of any Conversion Amount in an Alternate Event of Default Conversion, with “Redemption Premium
of the Conversion Amount” replacing “Conversion Amount” in clause (x) of the definition of Conversion Rate above
with respect to such Alternate Conversion) by designating in the Conversion Notice delivered pursuant to this Section 3(e) of this
Note that the Holder is electing to use the Alternate Conversion Price for such conversion. Notwithstanding anything to the contrary
in this Section 3(e), but subject to Section 3(d), until the Company delivers shares of Common Stock representing the applicable
Alternate Conversion Amount to the Holder, such Alternate Conversion Amount may be converted by the Holder into shares of Common
Stock pursuant to Section 3(c) without regard to this Section 3(e).


 




    	 	8	 



     


    

 


(f)           Mandatory
Conversion.


 


(i)            General.
If at any time (x) the VWAP of the Common Stock listed on the Principal Market exceeds $3.36 (as adjusted for stock splits, stock
dividends, recapitalizations and similar events) (the “Mandatory Conversion Minimum Price”) for ninety (90)
consecutive Trading Days (each, a “Mandatory Conversion Measuring Period”), and (y) no Equity Conditions Failure
then exists, the Company shall have the right to require the Holder to convert all, or any part, of the Conversion Amount of this
Note, as designated in the Mandatory Conversion Notice (as defined below) into fully paid, validly issued and nonassessable shares
of Common Stock in accordance with Section 3(c) hereof at the Conversion Rate as of the Mandatory Conversion Date (as defined
below) (a “Mandatory Conversion”). The Company may exercise its right to require conversion under this Section
3(f) by delivering within five Trading Days following the end of such Mandatory Conversion Measuring Period a written notice thereof
by electronic mail or facsimile and overnight courier to all, but not less than all, of the holders of Notes and the Transfer Agent
(the “Mandatory Conversion Notice” and the date all of the holders received such notice by electronic mail or
facsimile is referred to as the “Mandatory Conversion Notice Date”). The Mandatory Conversion Notice shall be
irrevocable. The Mandatory Conversion Notice shall state (i) the Trading Day selected for the Mandatory Conversion in accordance
with this Section 3(f), which Trading Day shall be no less than sixty (60) Trading Days and no more than ninety (90) Trading
Days following the Mandatory Conversion Notice Date (the “Mandatory Conversion Date”), (ii) the aggregate Conversion
Amount, of the Notes subject to mandatory conversion from the Holder and all of the holders of the Notes pursuant to this Section 3(f)
(and analogous provisions under the Other Notes) (the “Mandatory Conversion Amount”), (iii) the number of shares
of Common Stock to be issued to the Holder on the Mandatory Conversion Date and (iv) that there has been no Equity Conditions Failure.
Notwithstanding the foregoing, the Company may effect only one (1) Mandatory Conversion during any six (6) calendar month period.
Notwithstanding anything herein to the contrary, (i) if the Closing Sale Price of the Common Stock listed on the Principal Market
fails to exceed the Mandatory Conversion Minimum Price for each Trading Day commencing on the Mandatory Conversion Notice Date
and ending and including the Trading Day immediately prior to the applicable Mandatory Conversion Date (a “Mandatory Conversion
Price Failure”) or an Equity Conditions Failure occurs at any time prior to the Mandatory Conversion Date, (A) the Company
shall provide the Holder a subsequent notice to that effect and (B) unless the Holder waives the applicable Equity Conditions Failure
and/or Mandatory Conversion Price Failure, as applicable, the Mandatory Conversion shall be cancelled and the applicable Mandatory
Conversion Notice shall be null and void and (ii) at any time prior to the date all of the shares of Common Stock to be delivered
to the Holder (or its designee) in such Mandatory Conversion have been delivered in full in compliance with Section 3(c) above.
the Mandatory Conversion Amount may be converted, in whole or in part, by the Holders into shares of Common Stock pursuant to Section
3 (including, without limitation, Section 3(e)). Notwithstanding the foregoing, any Conversion Amount subject to a Mandatory Conversion
may be converted by the Holder hereunder prior to the applicable Mandatory Conversion Date and such aggregate Conversion Amount
converted hereunder on or after the Mandatory Conversion Notice Date and prior to such Mandatory Conversion Date shall reduce the
Mandatory Conversion Amount to be converted on such Mandatory Conversion Date. For the avoidance of doubt, the Company shall have
no right to effect a Mandatory Conversion if any Event of Default has occurred and continuing, but any Event of Default shall have
no effect upon the Holder’s right to convert this Note in its discretion.


 




    	 	9	 



     


    

 


(ii)           Pro
Rata Conversion Requirement. If the Company elects to cause a Mandatory Conversion of this Note pursuant to Section 3(f), then
it must simultaneously take the same action with respect to all of the Other Notes.


 


4.            RIGHTS
UPON EVENT OF DEFAULT.


 


(a)           Event
of Default. Each of the following events shall constitute an “Event of Default” and each of the events in
clauses (ix), (x) and (xi) shall constitute a “Bankruptcy Event of Default”:


 


(i)            the
failure of the applicable Registration Statement (as defined in the Registration Rights Agreement) to be filed with the SEC on
or prior to the date that is five (5) days after the applicable Filing Deadline (as defined in the Registration Rights Agreement)
or the failure of the applicable Registration Statement to be declared effective by the SEC on or prior to the date that is five
(5) days after the applicable Effectiveness Deadline (as defined in the Registration Rights Agreement);


 


(ii)           while
the applicable Registration Statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement,
the effectiveness of the applicable Registration Statement lapses for any reason (including, without limitation, the issuance of
a stop order) or such Registration Statement (or the prospectus contained therein) is unavailable to any holder of Registrable
Securities (as defined in the Registration Rights Agreement) for sale of all of such holder’s Registrable Securities in accordance
with the terms of the Registration Rights Agreement (or such lesser number of Registrable Securities as required to be registered
in accordance with Section 2(f) of the Registration Rights Agreement), and such lapse or unavailability continues for a period
of five (5) consecutive days or for more than an aggregate of ten (10) days in any 365-day period (excluding days during an Allowable
Grace Period (as defined in the Registration Rights Agreement));


 




    	 	10	 



     


    

 


(iii)          the
suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on an Eligible Market for a
period of five (5) consecutive Trading Days;


 


(iv)          the
Company’s (A) failure to cure a Conversion Failure by delivery of the required number of shares of Common Stock within five
(5) Trading Days after the applicable Conversion Date or (B) notice, written or oral, to any holder of the Notes, including, without
limitation, by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required,
with a request for conversion of any Notes into shares of Common Stock that is requested in accordance with the provisions of the
Notes, other than pursuant to Section 3(d);


 


(v)           except to the extent the Company is in compliance with Section 11(b) below, at any time following the
tenth (10th) consecutive Business Day that the Holder’s Authorized Share Allocation (as defined in Section
11(a) below) is less than the number of shares of Common Stock that the Holder would be entitled to receive upon a conversion
by the Holder of the full Conversion Amount of this Note (without regard to any limitations on conversion set forth in
Section 3(d) or otherwise);


 


(vi)          the Company’s or any Subsidiary’s failure to pay to the Holder any amount of Principal,
Interest, Late Charges or other amounts when and as due under this Note (including, without limitation, the Company’s
or any Subsidiary’s failure to pay any redemption payments or amounts hereunder) or any other Transaction Document (as
defined in the Securities Purchase Agreement) or any other agreement, document, certificate or other instrument delivered in
connection with the transactions contemplated hereby and thereby, except, in the case of a failure to pay Interest and Late
Charges when and as due, in which case only if such failure remains uncured for a period of at least five (5) Trading
Days;


 


(vii)         the
Company fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the Holder upon conversion
of any Securities (as defined in the Securities Purchase Agreement) acquired by the Holder under the Securities Purchase Agreement
(including this Note) as and when required by such Securities or the Securities Purchase Agreement, unless otherwise then prohibited
by applicable federal securities laws, and any such failure remains uncured for at least five (5) Trading Days;


 


(viii)        the
occurrence of any default under, redemption of or acceleration prior to maturity of at least an aggregate of $250,000 of Indebtedness
(as defined in the Securities Purchase Agreement) of the Company or any of its Subsidiaries, other than with respect to (A) the
Permitted Default Indebtedness and (B) any Other Notes;


 




    	 	11	 



     


    

 


(ix)          bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or
against the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be dismissed
within thirty (30) days of their initiation;


 


(x)           the
commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company or
any Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the
consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the execution of a composition of debts, or the occurrence
of any other similar federal, state or foreign proceeding, or, except with respect to the payment when due of the Permitted Default
Indebtedness, the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate
action by the Company or any Subsidiary in furtherance of any such action or the taking of any action by any Person to commence
a Uniform Commercial Code foreclosure sale or any other similar action under federal, state or foreign law;


 


(xi)          the
entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary
or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or
insolvent, or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order,
judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree, order, judgment or other similar document or any such other decree, order,
judgment or other similar document unstayed and in effect for a period of thirty (30) consecutive days;


 


(xii)         a
final judgment or judgments for the payment of money aggregating in excess of $250,000 are rendered against the Company and/or
any of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled
or stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any
judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $250,000
amount set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which
written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an
indemnity and the Company or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within
thirty (30) days of the issuance of such judgment;


 




    	 	12	 



     


    

 


(xiii)        the
Company and/or any Subsidiary, individually or in the aggregate, either (i) other than with respect to the Permitted Default Indebtedness,
fails to pay, when due, or within any applicable grace period, any payment with respect to any Indebtedness in excess of $250,000
due to any third party (other than, with respect to unsecured Indebtedness only, payments contested by the Company and/or such
Subsidiary (as the case may be) in good faith by proper proceedings and with respect to which adequate reserves have been set aside
for the payment thereof in accordance with GAAP) or is otherwise in breach or violation of any agreement for monies owed or owing
in an amount in excess of $250,000, which breach or violation permits the other party thereto to declare a default or otherwise
accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance or event that would, with or without the passage
of time or the giving of notice, result in a default or event of default under any agreement (other than such agreements evidencing
the Permitted Default Indebtedness) binding the Company or any Subsidiary, which default or event of default would or is likely
to have a material adverse effect on the business, assets, operations (including results thereof), liabilities, properties, condition
(including financial condition) or prospects of the Company or any of its Subsidiaries, individually or in the aggregate;


 


(xiv)        other
than as specifically set forth in another clause of this Section 4(a), the Company or any
Subsidiary breaches any representation or warranty in any material respect (other than representations or warranties subject to
material adverse effect or materiality limitations, which may not be breached in any respect) or any covenant or other term or
condition of any Transaction Document, except, in the case of a breach of a covenant or other term or condition that is curable,
only if such breach remains uncured for a period of ten (10) consecutive Trading Days;


 


(xv)         a
false or inaccurate certification (including a false or inaccurate deemed certification) by the Company that either (A) the Equity
Conditions are satisfied, (B) there has been no Equity Conditions Failure, or (C) as to whether any Event of Default has occurred;


 


(xvi)        any
breach or failure in any respect by the Company or any Subsidiary to comply with any provision of Section 14 of this Note;


 


(xvii)       any
Material Adverse Effect (as defined in the Securities Purchase Agreement) occurs;


 




    	 	13	 



     


    

 


(xviii)      any
provision of any Transaction Document shall at any time for any reason (other than pursuant to the express terms thereof) cease
to be valid and binding on or enforceable against the parties thereto, or the validity or enforceability thereof shall be contested
by any party thereto, or a proceeding shall be commenced by the Company or any Subsidiary or any governmental authority having
jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or the Company or any Subsidiary
shall deny in writing that it has any liability or obligation purported to be created under any Transaction Document to which it
is a party;


 


(xix)        except
to the extent no Restricted Principal remains outstanding pursuant to the terms thereof, this Note shall, for any reason, fail
or cease to create a separate valid and perfected first priority Lien (as defined in the Securities Purchase Agreement) on the
Collateral (as defined below) in favor of the Holder; or


 


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


 


(b)           Notice
of an Event of Default; Redemption Right. Upon the occurrence of an Event of Default with respect to this Note or any Other
Note, the Company shall within one (1) Business Day deliver written notice thereof via facsimile or electronic mail and overnight
courier (with next day delivery specified) (an “Event of Default Notice”) to the Holder. At any time after the
earlier of the Holder’s receipt of an Event of Default Notice and the Holder becoming aware of an Event of Default (such
earlier date, the “Event of Default Right Commencement Date”) and ending (such ending date, the “Event
of Default Right Expiration Date”, and each such period, an “Event of Default Redemption Right Period”)
on the twentieth (20th) Trading Day after the later of (x) the date such Event of Default is cured and (y) the Holder’s
receipt of an Event of Default Notice that includes (I) a reasonable description of the applicable Event of Default, (II) a certification
as to whether, in the opinion of the Company, such Event of Default is capable of being cured and, if applicable, a reasonable
description of any existing plans of the Company to cure such Event of Default and (III) a certification as to the date the Event
of Default occurred and, if cured on or prior to the date of such Event of Default Notice, the applicable Event of Default Right
Expiration Date, the Holder may require the Company to redeem all or any portion of this Note by delivering written notice thereof
(the “Event of Default Redemption Notice”) to the Company, which Event of Default Redemption Notice shall indicate
the portion of this Note the Holder is electing to redeem. Each portion of this Note subject to redemption by the Company pursuant
to this Section 4(b) shall be redeemed by the Company at a price equal to the greater of (i) the product of (A) the Conversion
Amount to be redeemed multiplied by (B) the Redemption Premium and (ii) the product of (X) the Conversion Rate with respect to
the Conversion Amount in effect at such time as the Holder delivers an Event of Default Redemption Notice multiplied by (Y) the
product of (1) the Redemption Premium multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading Day
during the period commencing on the date immediately preceding such Event of Default and ending on the date the Company makes the
entire payment required to be made under this Section 4(b) (the “Event of Default Redemption Price”).
Redemptions required by this Section 4(b) shall be made in accordance with the provisions of Section 12. To the extent redemptions
required by this Section 4(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the
Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section
3(e), but subject to Section 3(d), until the Event of Default Redemption Price (together with any Late Charges thereon) is paid
in full, the Conversion Amount submitted for redemption under this Section 4(b) (together with any Late Charges thereon) may be
converted, in whole or in part, by the Holder into Common Stock pursuant to the terms of this Note. In the event of a partial redemption
of this Note pursuant hereto, the Principal amount redeemed shall be deducted from the Installment Amount(s) relating to the applicable
Installment Date(s) as set forth in the Event of Default Redemption Notice. In the event of the Company’s redemption of any
portion of this Note under this Section 4(b), the Holder’s damages would be uncertain and difficult to estimate because of
the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute
investment opportunity for the Holder. Accordingly, any redemption premium due under this Section 4(b) is intended by the parties
to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a
penalty. Any redemption upon an Event of Default shall not constitute an election of remedies by the Holder, and all other rights
and remedies of the Holder shall be preserved.


 




    	 	14	 



     


    

 


(c)           Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, and notwithstanding any conversion
that is then required or in process, upon any Bankruptcy Event of Default, whether occurring prior to or following the Maturity
Date, the Company shall immediately pay to the Holder an amount in cash representing (i) all outstanding Principal, accrued and
unpaid Interest and accrued and unpaid Late Charges on such Principal and Interest, multiplied by (ii) the Redemption Premium,
in addition to any and all other amounts due hereunder, without the requirement for any notice or demand or other action by the
Holder or any other person or entity, provided that the Holder may, in its sole discretion, waive such right to receive payment
upon a Bankruptcy Event of Default, in whole or in part, and any such waiver shall not affect any other rights of the Holder hereunder,
including any other rights in respect of such Bankruptcy Event of Default, any right to conversion, and any right to payment of
the Event of Default Redemption Price or any other Redemption Price, as applicable.


 


5.             RIGHTS
UPON FUNDAMENTAL TRANSACTION.


 


(a)           Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes in writing
all of the obligations of the Company under this Note and the other Transaction Documents in accordance with the provisions of
this Section 5(a) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder prior
to such Fundamental Transaction, including agreements to deliver to each holder of Notes in exchange for such Notes a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Notes, including,
without limitation, having a principal amount and interest rate equal to the principal amounts then outstanding and the interest
rates of the Notes held by such holder, having similar conversion rights as the Notes and having similar ranking and security to
the Notes, and satisfactory to the Holder and (ii) the Successor Entity (including its Parent Entity) is a publicly traded
corporation whose common stock is quoted on or listed for trading on an Eligible Market. Upon the occurrence of any Fundamental
Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall refer
instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein. Upon consummation of a Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation
that there shall be issued upon conversion or redemption of this Note at any time after the consummation of such Fundamental Transaction,
in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under
Sections 6 and 16, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption of the Notes prior
to such Fundamental Transaction, such shares of the publicly traded common stock (or their equivalent) of the Successor Entity
(including its Parent Entity) which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction
had this Note been converted immediately prior to such Fundamental Transaction (without regard to any limitations on the conversion
of this Note), as adjusted in accordance with the provisions of this Note. Notwithstanding the foregoing, the Holder may elect,
at its sole option, by delivery of written notice to the Company to waive this Section 5(a) to permit the Fundamental Transaction
without the assumption of this Note. The provisions of this Section 5 shall apply similarly and equally to successive Fundamental
Transactions and shall be applied without regard to any limitations on the conversion of this Note.


 




    	 	15	 



     


    

 


(b)          Notice
of a Change of Control; Redemption Right. No sooner than twenty (20) Trading Days nor later than ten (10) calendar days prior
to the consummation of a Change of Control (the “Change of Control Date”), but not prior to the public announcement
of such Change of Control, the Company shall deliver written notice thereof via facsimile or electronic mail and overnight courier
to the Holder (a “Change of Control Notice”). At any time during the period beginning after the Holder’s
receipt of a Change of Control Notice or the Holder becoming aware of a Change of Control if a Change of Control Notice is not
delivered to the Holder in accordance with the immediately preceding sentence (as applicable) and ending on the later of twenty
(20) Trading Days after (A) consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice,
the Holder may require the Company to redeem all or any portion of this Note by delivering written notice thereof (“Change
of Control Redemption Notice”) to the Company, which Change of Control Redemption Notice shall indicate the Conversion
Amount the Holder is electing to redeem. The portion of this Note subject to redemption pursuant to this Section 5 shall be redeemed
by the Company in cash at a price equal to the greatest of (i) the product of (w) the Change of Control Redemption Premium multiplied
by (y) the Conversion Amount being redeemed, (ii) the product of (A) the Conversion Amount being redeemed multiplied by (B) the
quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning on
the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the public
announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice by (II)
the Conversion Price then in effect and (iii) the product of (A) the Conversion Amount
being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash value of any non-cash
consideration per share of Common Stock to be paid to the holders of the shares of Common Stock upon consummation of such Change
of Control (any such non-cash consideration constituting publicly-traded securities shall be valued at the highest of the Closing
Sale Price of such securities as of the Trading Day immediately prior to the consummation of such Change of Control, the Closing
Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control
and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed
Change of Control) divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”).
Redemptions required by this Section 5 shall be made in accordance with the provisions of Section 12 and shall have priority to
payments to stockholders in connection with such Change of Control. To the extent redemptions required by this Section 5(b) are
deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall
be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, but subject to Section 3(d),
until the Change of Control Redemption Price (together with any Late Charges thereon) is paid in full, the Conversion Amount submitted
for redemption under this Section 5(b) (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder
into Common Stock pursuant to Section 3. In the event of a partial redemption of this Note pursuant hereto, the Principal amount
redeemed shall be deducted from the Installment Amount(s) relating to the applicable Installment Date(s) as set forth in the Change
of Control Redemption Notice. In the event of the Company’s redemption of any portion of this Note under this Section 5(b),
the Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future
interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly,
any redemption premium due under this Section 5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate
of the Holder’s actual loss of its investment opportunity and not as a penalty.


 




    	 	16	 



     


    

 


6.             RIGHTS
UPON ISSUANCE OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.


 


(a)           Purchase
Rights. In addition to any adjustments pursuant to Section 7 below, if at any time the Company grants, issues or sells any
Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to all or substantially
all of the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled
to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired
if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without taking into
account any limitations or restrictions on the convertibility of this Note and assuming for such purpose that the Note was converted
at the Alternate Conversion Price as of the applicable record date) immediately prior to the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of
shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however,
that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other
Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right
to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a
result of such Purchase Right (and beneficial ownership) to the extent of any such excess) and such Purchase Right to such extent
shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would not result
in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted
such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right held
similarly in abeyance) to the same extent as if there had been no such limitation).


 


(b)          Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect
to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make appropriate provision
to ensure that the Holder will thereafter have the right to receive upon a conversion of this Note, at the Holder’s option
(i) in addition to the shares of Common Stock receivable upon such conversion, such securities or other assets to which the Holder
would have been entitled with respect to such shares of Common Stock had such shares of Common Stock been held by the Holder upon
the consummation of such Corporate Event (without taking into account any limitations or restrictions on the convertibility of
this Note) or (ii) in lieu of the shares of Common Stock otherwise receivable upon such conversion, such securities or other assets
received by the holders of shares of Common Stock in connection with the consummation of such Corporate Event in such amounts as
the Holder would have been entitled to receive had this Note initially been issued with conversion rights for the form of such
consideration (as opposed to shares of Common Stock) at a conversion rate for such consideration commensurate with the Conversion
Rate. Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to the Holder. The provisions
of this Section 6 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any limitations
on the conversion or redemption of this Note.


 




    	 	17	 



     


    

 


7.            RIGHTS
UPON ISSUANCE OF OTHER SECURITIES.


 


(a)          Adjustment
of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Subscription Date the Company issues or
sells, or in accordance with this Section 7(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance
or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities issued
or sold or deemed to have been issued or sold) for a consideration per share (the “New Issuance Price”) less
than a price equal to the Conversion Price in effect immediately prior to such issuance or sale or deemed issuance or sale (such
Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive
Issuance”), then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an
amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted
Conversion Price and the New Issuance Price under this Section 7(a)), the following shall be applicable:


 


(i)            Issuance of Options. If the Company in any manner grants or sells any Options and the
lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or
upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise
pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be
outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price
per share. For purposes of this Section 7(a)(i), the “lowest price per share for which one share of Common Stock is
issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable
upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the
sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of
Common Stock upon the granting or sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange
of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the
lowest exercise price set forth in such Option for which one share of Common Stock is issuable upon the exercise of any such
Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or
otherwise pursuant to the terms thereof, minus (2) the sum of all amounts paid or payable to the holder of such Option (or
any other Person) upon the granting or sale of such Option, upon exercise of such Option and upon conversion, exercise or
exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus
the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any
other Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual
issuance of such share of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise
pursuant to the terms thereof or upon the actual issuance of such shares of Common Stock upon conversion, exercise or
exchange of such Convertible Securities.


 




    	 	18	 



     


    

 


(ii)           Issuance
of Convertible Securities. If the Company in any manner issues or sells any Convertible Securities and the lowest price per
share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise
pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding
and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price
per share. For the purposes of this Section 7(a)(ii), the “lowest price per share for which one share of Common Stock is
issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to
(1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect
to one share of Common Stock upon the issuance or sale of the Convertible Security and upon conversion, exercise or exchange of
such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible
Security for which one share of Common Stock is issuable upon conversion, exercise or exchange thereof or otherwise pursuant to
the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person)
upon the issuance or sale of such Convertible Security plus the value of any other consideration received or receivable by, or
benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment
of the Conversion Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange
of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible
Securities is made upon exercise of any Options for which adjustment of the Conversion Price has been or is to be made pursuant
to other provisions of this Section 7(a), except as contemplated below, no further adjustment of the Conversion Price shall be
made by reason of such issuance or sale.


 


(iii)          Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other
than proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(b)
below), the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which
would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase
price, additional consideration or increased or decreased conversion rate (as the case may be) at the time initially granted, issued
or sold. For purposes of this Section 7(a)(iii), if the terms of any Option or Convertible Security that was outstanding as of
the Subscription Date are increased or decreased in the manner described in the immediately preceding sentence, then such Option
or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed
to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 7(a) shall be made if such
adjustment would result in an increase of the Conversion Price then in effect.


 




    	 	19	 



     


    

 


(iv)          Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the
issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary
Security”, and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”),
together comprising one integrated transaction (or one or more transactions if such issuances or sales or deemed issuances or sales
of securities of the Company either (A) have at least one investor or purchaser in common, (B) are consummated in reasonable proximity
to each other and/or (C) are consummated under the same plan of financing), the aggregate consideration per share of Common Stock
with respect to such Primary Security shall be deemed to be equal to the difference of (x) the lowest price per share for which
one share of Common Stock was issued (or was deemed to be issued pursuant to Section 7(a)(i) or 7(a)(ii) above, as applicable)
in such integrated transaction solely with respect to such Primary Security, minus (y) with respect to such Secondary Securities,
the sum of (I) the Black Scholes Consideration Value of each such Option, if any, (II) the fair market value (as determined by
the Holder in good faith) or the Black Scholes Consideration Value, as applicable, of such Adjustment Right, if any, and (III)
the fair market value (as determined by the Holder) of such Convertible Security, if any, in each case, as determined on a per
share basis in accordance with this Section 7(a)(iv). If any shares of Common Stock, Options or Convertible Securities are issued
or sold or deemed to have been issued or sold for cash, the consideration received therefor (for the purpose of determining the
consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black
Scholes Consideration Value) will be deemed to be the net amount of consideration received by the Company therefor. If any shares
of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration
received by the Company (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security,
but not for the purpose of the calculation of the Black Scholes Consideration Value) will be the fair value of such consideration,
except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the
Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days
immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners
of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration
therefor (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not
for the purpose of the calculation of the Black Scholes Consideration Value) will be deemed to be the fair value of such portion
of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible
Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined
jointly by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence
of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined
within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable
appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all
parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.


 




    	 	20	 



     


    

 


(v)          Record
Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive
a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for
or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the
issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).


 


(b)           Adjustment
of Conversion Price upon Subdivision or Combination of Common Stock. Without limiting any provision of Section 5 or Section
7(a), if the Company at any time on or after the Subscription Date subdivides (by any stock split, stock dividend, stock combination,
recapitalization or other similar transaction) one or more classes of its outstanding shares of Common Stock into a greater number
of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting
any provision of Section 5 or Section 7(a), if the Company at any time on or after the Subscription Date combines (by
any stock split, stock dividend, stock combination, recapitalization or other similar transaction) one or more classes of its outstanding
shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will
be proportionately increased. Any adjustment pursuant to this Section 7(b) shall become effective immediately after the effective
date of such subdivision or combination. If any event requiring an adjustment under this Section 7(b) occurs during the period
that a Conversion Price is calculated hereunder, then the calculation of such Conversion Price shall be adjusted appropriately
to reflect such event.


 


(c)           Holder’s
Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section 7, if the
Company in any manner issues or sells or enters into any agreement to issue or sell, any Common Stock, Options or Convertible Securities
(any such securities, “Variable Price Securities”), after the Subscription Date that are issuable pursuant to
such agreement or convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may vary
with the market price of the shares of Common Stock, including by way of one or more reset(s) to a fixed price, but exclusive of
such formulations reflecting customary anti-dilution provisions (such as share splits, share combinations, share dividends and
similar transactions) (each of the formulations for such variable price being herein referred to as, the “Variable Price”),
the Company shall provide written notice thereof via facsimile and overnight courier to the Holder on the date of such agreement
and the issuance of such Convertible Securities or Options. From and after the date the Company enters into such agreement or issues
any such Variable Price Securities, the Holder shall have the right, but not the obligation, in its sole discretion to substitute
the Variable Price for the Conversion Price upon conversion of this Note by designating in the Conversion Notice delivered upon
any conversion of this Note that solely for purposes of such conversion the Holder is relying on the Variable Price rather than
the Conversion Price then in effect. The Holder’s election to rely on a Variable Price for a particular conversion of this
Note shall not obligate the Holder to rely on a Variable Price for any future conversion of this Note.


 




    	 	21	 



     


    

 


(d)          Stock
Combination Event Adjustments. If at any time and from time to time on or after the Subscription Date there occurs any stock
split, stock dividend, stock combination recapitalization or other similar transaction involving the Common Stock (each, a “Stock
Combination Event”, and such date thereof, the “Stock Combination Event Date”) and the Event Market
Price is less than the Conversion Price then in effect (after giving effect to the adjustment in Section 7(b) above), then on the
forty-first (41st) Trading Day immediately following such Stock Combination Event Date, the Conversion Price then in effect on
such forty-first (41st) Trading Day (after giving effect to the adjustment in Section 7(b) above) shall be reduced (but in no event
increased) to the Event Market Price. For the avoidance of doubt, if the adjustment in the immediately preceding sentence would
otherwise result in an increase in the Conversion Price hereunder, no adjustment shall be made.


 


(e)          Other
Events. In the event that the Company (or any Subsidiary) shall take any action to which the provisions hereof are not strictly
applicable, or, if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated
by the provisions of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting
of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s board of directors
shall in good faith determine and implement an appropriate adjustment in the Conversion Price so as to protect the rights of the
Holder, provided that no such adjustment pursuant to this Section 7(e) will increase the Conversion Price as otherwise determined
pursuant to this Section 7, provided further that if the Holder does not accept such adjustments as appropriately protecting its
interests hereunder against such dilution, then the Company’s board of directors and the Holder shall agree, in good faith,
upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination
shall be final and binding absent manifest error and whose fees and expenses shall be borne by the Company.


 


(f)          Calculations.
All calculations under this Section 7 shall be made by rounding to the nearest cent or the nearest 1/100th of a
share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held
by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.


 


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


 




    	 	22	 



     


    

 


8.          INSTALLMENT
CONVERSION OR REDEMPTION.


 


(a)          General.
On each applicable Installment Date, provided there has been no Equity Conditions Failure, the Company shall pay to the Holder
of this Note the applicable Installment Amount due on such date by converting such Installment Amount in accordance with this Section
8 (a “Installment Conversion”); provided, however, that the Company may, at its option following
notice to the Holder as set forth below, pay the Installment Amount by redeeming such Installment Amount in cash (a “Installment
Redemption”) or by any combination of an Installment Conversion and an Installment Redemption so long as all of the outstanding
applicable Installment Amount due on any Installment Date shall be converted and/or redeemed by the Company on the applicable Installment
Date, subject to the provisions of this Section 8. On the date which is the twenty-sixth (26th) Trading Day prior to each Installment
Date (or, with respect to the initial Installment Date, the Initial Installment Notice Due Date)(each, an “Installment
Notice Due Date”), the Company shall deliver written notice (each, a “Installment Notice” and the
date all of the holders receive such notice is referred to as to the “Installment Notice Date”), to each holder
of Notes and such Installment Notice shall (i) either (A) confirm that the applicable Installment Amount of such holder’s
Note shall be converted in whole pursuant to an Installment Conversion or (B) (1) state that the Company elects to redeem for cash,
or is required to redeem for cash in accordance with the provisions of the Notes, in whole or in part, the applicable Installment
Amount pursuant to an Installment Redemption and (2) specify the portion of such Installment Amount which the Company elects or
is required to redeem pursuant to an Installment Redemption (such amount to be redeemed in cash, the “Installment Redemption
Amount”) and the portion of the applicable Installment Amount, if any, with respect to which the Company will, and is
permitted to, effect an Installment Conversion (such amount of the applicable Installment Amount so specified to be so converted
pursuant to this Section 8 is referred to herein as the “Installment Conversion Amount”), which amounts when
added together, must at least equal the entire applicable Installment Amount and (ii) if the applicable Installment Amount is to
be paid, in whole or in part, pursuant to an Installment Conversion, certify that there is not then an Equity Conditions Failure
as of the applicable Installment Notice Date. Each Installment Notice shall be irrevocable. If the Company does not timely deliver
an Installment Notice in accordance with this Section 8 with respect to a particular Installment Date, then the Company shall be
deemed to have delivered an irrevocable Installment Notice confirming an Installment Conversion of the entire Installment Amount
payable on such Installment Date and shall be deemed to have certified that there is not then an Equity Conditions Failure in connection
with such Installment Conversion. No later than three (3) Trading Days (or such earlier date as required pursuant to the 1934 Act
or other applicable law, rule or regulation for the settlement of a trade initiated on the applicable Installment Notice Due Date
of such shares of Common Stock issuable pursuant to the applicable Installment Notice) after delivery or deemed delivery (as applicable)
of the applicable Installment Notice setting forth an Installment Conversion Amount, the Company shall deliver to the Holder’s
account with DTC such number of shares of Common Stock (the “Pre-Installment Conversion Shares”) equal to the
quotient of (x) such Installment Conversion Amount divided by (y) the Pre-Installment Conversion Price, and as to which the Holder
shall be the owner thereof as of such time of delivery or deemed delivery (as the case may be) of such Installment Notice. Except
as expressly provided in this Section 8(a), the Company shall convert and/or redeem the applicable Installment Amount of this Note
pursuant to this Section 8 and the corresponding Installment Amounts of the Other Notes pursuant to the corresponding provisions
of the Other Notes in the same ratio of the applicable Installment Amount being converted and/or redeemed hereunder. The applicable
Installment Conversion Amount (whether set forth in the applicable Installment Notice or by operation of this Section 8) shall
be converted in accordance with Section 8(b) and the applicable Installment Redemption Amount shall be redeemed in accordance with
Section 8(c).


 




    	 	23	 



     


    

 


(b)          Mechanics
of Installment Conversion. Subject to Section 3(d), if the Company delivers an Installment Notice or is deemed to have delivered
an Installment Notice certifying that such Installment Amount is being paid, in whole or in part, in an Installment Conversion
in accordance with Section 8(a), then the remainder of this Section 8(b) shall apply. The applicable Installment Conversion Amount,
if any, shall be converted on the applicable Installment Date at the applicable Installment Conversion Price and the Company shall,
on such Installment Date, deliver to the Holder’s account with DTC such shares of Common Stock issued upon such conversion
(subject to the reduction contemplated by the immediately following sentence and, if applicable, the penultimate sentence of this
Section 8(b)), provided that the Equity Conditions are then satisfied (or waived in writing by the Holder) on such Installment
Date and an Installment Conversion is not otherwise prohibited under any other provision of this Note. The number of shares of
Common Stock to be delivered upon such Installment Conversion shall be reduced by the number of any Pre-Installment Conversion
Shares delivered in connection with such Installment Date. If an Event of Default occurs or is continuing at any time during the
period from the Company Installment Notice Date through the Installment Date, then, at the option of the Holder designated in writing
to the Company, either (i) the Holder shall return to the Company all, or any part, of such Pre-Installment Conversion Shares delivered
in connection with the applicable Installment Date or (ii) the Conversion Amount used to calculate the Event of Default Redemption
Price shall be reduced by the product of (x) the Installment Conversion Amount applicable to such Installment Date (as adjusted
downward proportionally with respect to any Pre-Installment Conversion Shares returned to the Company pursuant to clause (i) above)
multiplied by (y) the Conversion Share Ratio. If the Company confirmed (or is deemed to have confirmed by operation of Section
8(a)) the conversion of the applicable Installment Conversion Amount, in whole or in part, and there was no Equity Conditions Failure
as of the applicable Installment Notice Date (or is deemed to have certified that the Equity Conditions in connection with any
such conversion have been satisfied by operation of Section 8(a)) but an Equity Conditions Failure occurred between the applicable
Installment Notice Date and any time through the applicable Installment Date (the “Interim Installment Period”),
the Company shall provide the Holder a subsequent notice to that effect. If there is an Equity Conditions Failure (which is not
waived in writing by the Holder) during such Interim Installment Period or an Installment Conversion is not otherwise permitted
under any other provision of this Note, then, at the option of the Holder designated in writing to the Company, the Holder may
require the Company to do any one or more of the following: (i) the Company shall redeem all or any part designated by the Holder
of the unconverted Installment Conversion Amount (such designated amount is referred to as the “Designated Redemption
Amount”) and the Company shall pay to the Holder within three (3) days of such Installment Date, by wire transfer of
immediately available funds, an amount in cash equal to 125% of such Designated Redemption Amount, and/or (ii) the Installment
Conversion shall be null and void with respect to all or any part designated by the Holder of the unconverted Installment Conversion
Amount and the Holder shall be entitled to all the rights of a holder of this Note with respect to such designated part of the
Installment Conversion Amount; provided, however, the Conversion Price for such designated part of such unconverted Installment
Conversion Amount shall thereafter be adjusted to equal the lesser of (A) the Installment Conversion Price as in effect on the
date on which the Holder voided the Installment Conversion and (B) the Installment Conversion Price that would be in effect on
the date on which the Holder delivers a Conversion Notice relating thereto as if such date was an Installment Date. In addition,
if any of the Equity Conditions are not satisfied (or waived in writing by the Holder) on such Installment Date or an Installment
Conversion is not otherwise permitted under any other provision of this Note, then, at the Holder’s option, either (I) the
Holder shall return any Pre-Installment Conversion Shares delivered in connection with the applicable Installment Date or (II)
the applicable Designated Redemption Amount shall be reduced by the product of (X) the Installment Conversion Amount applicable
to such Installment Date multiplied by (Y) the Conversion Share Ratio. If the Company fails to redeem any Designated Redemption
Amount by the third (3rd) day following the applicable Installment Date by payment of such amount by such date, then
the Holder shall have the rights set forth in Section 12 as if the Company failed to pay the applicable Installment Redemption
Price (as defined below) and all other rights under this Note (including, without limitation, such failure constituting an Event
of Default described in Section 4(a)(vi)). Notwithstanding anything to the contrary in this Section 8(b), but subject to 3(d),
until the Company delivers Common Stock representing the Installment Conversion Amount to the Holder, the Installment Conversion
Amount may be converted by the Holder into Common Stock pursuant to Section 3. In the event that the Holder elects to convert the
Installment Conversion Amount prior to the applicable Installment Date as set forth in the immediately preceding sentence, the
Installment Conversion Amount so converted shall be deducted from the Installment Amount(s) relating to the applicable Installment
Date(s) as set forth in the applicable Conversion Notice. Notwithstanding anything herein to the contrary, if, with respect to
an Installment Date, the number of Pre-Installment Conversion Shares delivered to the Holder exceeds the number of Post-Installment
Conversion Shares with respect to such Installment Date, then the Holder shall be entitled to keep any such excess as additional
interest with respect to such Installment Amount due on such Installment Date. The Company shall pay any and all taxes that may
be payable with respect to the issuance and delivery of any shares of Common Stock in any Installment Conversion hereunder.


 




    	 	24	 



     


    

 


(c)          Mechanics
of Installment Redemption. If the Company elects or is required to effect an Installment Redemption, in whole or in part, in
accordance with Section 8(a), then the Installment Redemption Amount, if any, shall be redeemed by the Company in cash on the applicable
Installment Date by wire transfer to the Holder of immediately available funds in an amount equal to the applicable Installment
Redemption Amount (the “Installment Redemption Price”). If the Company fails to redeem such Installment Redemption
Amount on such Installment Date by payment of the Installment Redemption Price, then, at the option of the Holder designated in
writing to the Company (any such designation shall be a “Conversion Notice” for purposes of this Note), the
Holder may require the Company to convert all or any part of the Installment Redemption Amount at the Installment Conversion Price
(determined as of the date of such designation as if such date were an Installment Date). Conversions required by this Section
8(c) shall be made in accordance with the provisions of Section 3(c). Notwithstanding anything to the contrary in this Section
8(c), but subject to Section 3(d), until the Installment Redemption Price (together with any Late Charges thereon) is paid in full,
the Installment Redemption Amount (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder
into Common Stock pursuant to Section 3. In the event the Holder elects to convert all or any portion of the Installment Redemption
Amount prior to the applicable Installment Date as set forth in the immediately preceding sentence, the Installment Redemption
Amount so converted shall be deducted from the Installment Amounts relating to the applicable Installment Date(s) as set forth
in the applicable Conversion Notice. Redemptions required by this Section 8(c) shall be made in accordance with the provisions
of Section 12.


 


(d)          Deferred
Installment Amount. Notwithstanding any provision of this Section 8(d) to the contrary, the Holder may, at its option and in
its sole discretion, deliver a written notice to the Company no later than the Trading Day immediately prior to the applicable
Installment Date electing to have the payment of all or any portion of an Installment Amount payable on such Installment Date deferred
(such amount deferred, the “Deferral Amount”, and such deferral, each a “Deferral”) until
any subsequent Installment Date selected by the Holder, in its sole discretion, in which case, the Deferral Amount shall be added
to, and become part of, such subsequent Installment Amount and such Deferral Amount shall continue to accrue Interest hereunder.
Any notice delivered by the Holder pursuant to this Section 8(d) shall set forth (i) the Deferral Amount and (ii) the date that
such Deferral Amount shall now be payable.


 




    	 	25	 



     


    

 


(e)          Acceleration
of Installment Amounts. Notwithstanding any provision of this Section 8 to the contrary, but subject to Section 3(d), if the
Company delivers an Installment Notice and confirms, or is deemed to have delivered and confirmed, in whole or in part, an Installment
Conversion in accordance with Section 8(a) (each such applicable Installment Date, a “Current Installment Date”),
during the period commencing on the Installment Notice Due Date immediately prior to such applicable Current Installment Date and
ending on the Trading Day immediately prior to the next Installment Date (each, an “Installment Period”), the
Holder may elect, at its option and in its sole discretion, at one or more times in such Installment Period, either (x) if such
election is made prior to third (3rd) Trading Day immediately prior to such Current Installment Date (each, a “Pre-Delivery
Acceleration Expiration Date”), to increase the Installment Conversion Amount (and related Installment Amount) with respect
to such Current Installment Date in which case, such Acceleration Amount(s) (as defined below) shall be added to, and become part
of, the Installment Amount as such Installment Amount may have been increased pursuant to the terms hereof, payable on such applicable
Installment Date by including such Acceleration Amount(s) in the Installment Amount for the applicable Installment Date and shall
be payable in Common Stock by including such Acceleration Amount(s) in the Installment Conversion Amount for the applicable Installment
Date and (y) if such election is made on or after the Pre-Delivery Acceleration Expiration Date, to convert other Installment Amounts
as of such election date (each, an “Acceleration”, and each such amount of acceleration or conversion, as applicable,
an “Acceleration Amount”, and each such election date, an “Acceleration Date”), in whole
or in part, at the Installment Conversion Price of such Current Installment Date (with “Installment Conversion Price”
replacing “Conversion Price” and the “Acceleration Date” replacing “Conversion Date” for all
purposes hereunder with respect to such Acceleration) in accordance with the conversion procedures set forth in Section 3 hereunder,
mutatis mutandis. Any such notice delivered by the Holder (each, an “Acceleration Notice”) shall set
forth (i) the Acceleration Amount(s), (ii) the applicable Current Installment Date and (iii) the date that such Acceleration Amount(s)
should have been paid if not for the Holder’s right to accelerate such Installment Amount(s) pursuant to this Section 8(e).
To the extent more than one Installment Period exists as of an Acceleration Date, the Holder shall also elect in such Acceleration
Notice which Pre-Installment Conversion Price or Installment Conversion Price, as applicable, that shall apply with respect to
such Acceleration. The Company shall deliver Pre-Installment Conversion Shares to the Holder with respect to any Acceleration occurring
prior to the Pre-Delivery Acceleration Expiration Date related to the Current Installment Date attributable to such Acceleration
as soon as commercially practicable after the applicable Acceleration Date, but no later than the second (2nd) Trading
Day after such Acceleration Date. Subject to Section 3(d), until the Company delivers shares of Common Stock representing the applicable
Acceleration Amount to the Holder, such Acceleration Amount may be converted by the Holder into shares of Common Stock pursuant
to Section 3(c) without regard to this Section 8(e). Notwithstanding anything to the contrary in this Section 8(e), with respect
to each period commencing on an Installment Notice Due Date (the “Current Installment Notice Due Date”) and
ending on the Trading Day immediately prior to the next Installment Notice Due Date (each, an “Acceleration Measuring
Period”), the Holder may not elect to effect an Acceleration (the “Current Acceleration”, and such
date of determination, the “Current Acceleration Determination Date”) during such Acceleration Measuring Period
if the Installment Conversion Amount with respect to the Installment Date related to such Current Acceleration (as adjusted for
such Current Acceleration and any other Accelerations and Deferrals during such Acceleration Measuring Period), collectively, exceeds
five (5) times the Installment Amount with respect to the Installment Date related to such Current Acceleration (without regard
to any Accelerations or Deferrals with respect to the Installment Date related to such Current Acceleration).


 




    	 	26	 



     


    

 


9.          REDEMPTIONS
AT THE COMPANY’S ELECTION.


 


(a)          Company
Optional Redemption. At any time after the Applicable Date (as defined in the Securities Purchase Agreement), if no Equity
Conditions Failure exists, the Company shall have the right to redeem all, but not less than all, of the Conversion Amount then
remaining under this Note (the “Company Optional Redemption Amount”) on the Company Optional Redemption Date
(each as defined below) (a “Company Optional Redemption”). The portion of this Note subject to redemption pursuant
to this Section 9(a) shall be redeemed by the Company in cash at a price (the “Company Optional Redemption Price”)
equal to the greater of (i) the sum of (A) 125% of the portion of the Principal amount to be redeemed as of the Company Optional
Redemption Date plus (B) accrued but unpaid Interest thereon (and Late Charges, if any, with respect to such Principal and Interest)
and (ii) the sum of (A) the product of (1) the Conversion Rate with respect to the Principal amount being redeemed as of the Company
Optional Redemption Date multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period
commencing on the date immediately preceding such Company Optional Redemption Notice Date and ending on the Trading Day immediately
prior to the date the Company makes the entire payment required to be made under this Section 9(a), plus (B) accrued but unpaid
Interest thereon (and Late Charges, if any, with respect to such Principal and Interest). The Company may exercise its right to
require redemption under this Section 9(a) by delivering a written notice thereof by facsimile or electronic mail and overnight
courier to all, but not less than all, of the holders of Notes (the “Company Optional Redemption Notice” and
the date all of the holders of Notes received such notice is referred to as the “Company Optional Redemption Notice Date”).
The Company may deliver only one Company Optional Redemption Notice hereunder and such Company Optional Redemption Notice shall
be irrevocable. The Company Optional Redemption Notice shall (x) state the date on which the Company Optional Redemption shall
occur (the “Company Optional Redemption Date”) which date shall not be less than ninety (90) Trading Days nor
more than one hundred (100) Trading Days following the Company Optional Redemption Notice Date, (y) certify that there has been
no Equity Conditions Failure and (z) state the aggregate Conversion Amount of the Notes which is being redeemed in such Company
Optional Redemption from the Holder and all of the other holders of the Notes pursuant to this Section 9(a) (and analogous provisions
under the Other Notes) on the Company Optional Redemption Date. Notwithstanding anything herein to the contrary, (i) if no Equity
Conditions Failure has occurred as of the Company Optional Redemption Notice Date but an Equity Conditions Failure occurs at any
time prior to the Company Optional Redemption Date, (A) the Company shall provide the Holder a subsequent notice to that effect
and (B) unless the Holder waives the Equity Conditions Failure, the Company Optional Redemption shall be cancelled and the applicable
Company Optional Redemption Notice shall be null and void and (ii) at any time prior to the date the Company Optional Redemption
Price is paid, in full, the Company Optional Redemption Amount may be converted, in whole or in part, by the Holder into shares
of Common Stock pursuant to Section 3. All Conversion Amounts converted by the Holder after the Company Optional Redemption Notice
Date shall reduce the Company Optional Redemption Amount of this Note required to be redeemed on the Company Optional Redemption
Date. Redemptions made pursuant to this Section 9(a) shall be made in accordance with Section 12. In the event of the Company’s
redemption of any portion of this Note under this Section 9, the Holder’s damages would be uncertain and difficult to estimate
because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable
substitute investment opportunity for the Holder. Accordingly, any redemption premium due under this Section 9 is intended by the
parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not
as a penalty. For the avoidance of doubt, the Company shall have no right to effect a Company Optional Redemption if any Event
of Default has occurred and continuing, but any Event of Default shall have no effect upon the Holder’s right to convert
this Note in its discretion.


 


(b)          Pro
Rata Redemption Requirement. If the Company elects to cause a Company Optional Redemption of this Note pursuant to Section
9(a), then it must simultaneously take the same action with respect to all of the Other Notes.


 




    	 	27	 



     


    

 


10.          NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation (as defined
in the Securities Purchase Agreement), Bylaws (as defined in the Securities Purchase Agreement) or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith
carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of this
Note. Without limiting the generality of the foregoing or any other provision of this Note or the other Transaction Documents,
the Company (a) shall not increase the par value of any shares of Common Stock receivable upon conversion of this Note above
the Conversion Price then in effect, and (b) shall take all such actions as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the conversion of this Note.


 


11.          RESERVATION
OF AUTHORIZED SHARES.


 


(a)           Reservation.
So long as any Notes remain outstanding, the Company shall at all times reserve at least 300% of the number of shares of Common
Stock as shall from time to time be necessary to effect the conversion, including without limitation, Installment Conversions,
Alternate Optional Conversions, Alternate Event of Default Conversions, and Accelerations, of all of the Notes then outstanding
(without regard to any limitations on conversions and assuming such Notes remain outstanding until the Maturity Date) (the “Required
Reserve Amount”). The Required Reserve Amount (including, without limitation, each increase in the number of shares so
reserved) shall be allocated pro rata among the holders of the Notes based on the original principal amount of the Notes held by
each holder on the Closing Date or increase in the number of reserved shares, as the case may be (the “Authorized Share
Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s Notes, each transferee
shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any shares of Common Stock reserved and
allocated to any Person which ceases to hold any Notes shall be allocated to the remaining holders of Notes, pro rata based on
the principal amount of the Notes then held by such holders.


 


(b)          Insufficient
Authorized Shares. If, notwithstanding Section 11(a), and not in limitation thereof, at any time while any of the Notes remain
outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation
to reserve for issuance upon conversion of the Notes at least a number of shares of Common Stock equal to the Required Reserve
Amount (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase
the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve
Amount for the Notes then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after
the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60) days after the occurrence of such
Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of
authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement
and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock
and to cause its board of directors to recommend to the stockholders that they approve such proposal. In the event that the Company
is prohibited from issuing shares of Common Stock upon any conversion due to the failure by the Company to have sufficient shares
of Common Stock available out of the authorized but unissued shares of Common Stock (such unavailable number of shares of Common
Stock, the “Authorized Failure Shares”), in lieu of delivering such Authorized Failure Shares to the Holder,
the Company shall pay cash in exchange for the redemption of such portion of the Conversion Amount convertible into such Authorized
Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorized Failure Shares and (y) the greatest
Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable
Conversion Notice with respect to such Authorized Failure Shares to the Company and ending on the date of such issuance and payment
under this Section 11(a); and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Holder of Authorized Failure Shares, any brokerage commissions and other out-of-pocket
expenses, if any, of the Holder incurred in connection therewith. Nothing contained in Section 11(a) or this Section 11(b) shall
limit any obligations of the Company under any provision of the Securities Purchase Agreement.


 




    	 	28	 



     


    

 


12.          REDEMPTIONS.


 


(a)          Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within five (5) Business Days
after the Company’s receipt of the Holder’s Event of Default Redemption Notice. If the Holder has submitted a Change
of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of Control Redemption
Price to the Holder in cash concurrently with the consummation of such Change of Control if such notice is received prior to the
consummation of such Change of Control and within five (5) Business Days after the Company’s receipt of such notice otherwise.
The Company shall deliver the applicable Installment Redemption Price to the Holder in cash on the applicable Installment Date.
The Company shall deliver the applicable Company Optional Redemption Price to the Holder in cash on the applicable Company Optional
Redemption Date. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time the Holder
is entitled to receive a cash payment under any of the other Transaction Documents, at the option of the Holder delivered in writing
to the Company, the applicable Redemption Price hereunder shall be increased by the amount of such cash payment owed to the Holder
under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s
payment obligation under such other Transaction Document. In the event of a redemption of less than all of the Conversion Amount
of this Note, the Company shall promptly cause to be issued and delivered to the Holder a new Note (in accordance with Section
19(d)) representing the outstanding Principal which has not been redeemed. In the event that the Company does not pay the applicable
Redemption Price to the Holder within the time period required, at any time thereafter and until the Company pays such unpaid Redemption
Price in full, the Holder shall have the option, in lieu of redemption, to require the Company to promptly return to the Holder
all or any portion of this Note representing the Conversion Amount that was submitted for redemption and for which the applicable
Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice, (x)
the applicable Redemption Notice shall be null and void with respect to such Conversion Amount, (y) the Company shall immediately
return this Note, or issue a new Note (in accordance with Section 19(d)), to the Holder, and in each case the principal amount
of this Note or such new Note (as the case may be) shall be increased by an amount equal to the difference between (1) the applicable
Redemption Price (as the case may be, and as adjusted pursuant to this Section 12, if applicable) minus (2) the Principal portion
of the Conversion Amount submitted for redemption and (z) the Conversion Price of this Note or such new Notes (as the case may
be) shall be automatically adjusted with respect to each conversion effected thereafter by the Holder to the lowest of (A) the
Conversion Price as in effect on the date on which the applicable Redemption Notice is voided, (B) 75% of the lowest Closing Bid
Price of the Common Stock during the period beginning on and including the date on which the applicable Redemption Notice is delivered
to the Company and ending on and including the date on which the applicable Redemption Notice is voided and (C) 75% of the quotient
of (I) the sum of the five (5) lowest VWAPs of the Common Stock during the twenty (20) consecutive Trading Day period ending and
including the Trading Day immediately preceding the applicable Conversion Date divided by (II) five (5) (it being understood and
agreed that all such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other
similar transaction during such period). The Holder’s delivery of a notice voiding a Redemption Notice and exercise of its
rights following such notice shall not affect the Company’s obligations to make any payments of Late Charges which have accrued
prior to the date of such notice with respect to the Conversion Amount subject to such notice.


 


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


 




    	 	29	 



     


    

 


13.          VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law (including, without limitation,
the Delaware General Corporation Law) and as expressly provided in this Note.


 


14.          COVENANTS.
Until this Note has been converted, redeemed or otherwise satisfied in accordance with its terms:


 


(a)          Rank.
All payments due under this Note (a) shall rank pari passu with all Other Notes and (b) shall be senior to all other Indebtedness
of the Company and its Subsidiaries in right of payment other than Permitted Indebtedness secured by Permitted Liens.


 


(b)          Incurrence
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
incur or guarantee, assume or suffer to exist any Indebtedness (other than (i) the Indebtedness evidenced by this Note and the
Other Notes and (ii) other Permitted Indebtedness).


 


(c)          Existence
of Liens. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, allow
or suffer to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets
(including accounts and contract rights) owned by the Company or any of its Subsidiaries (collectively, “Liens”)
other than Permitted Liens.


 


(d)          Restricted
Payments. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, redeem,
defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness
(other than the Notes) whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness
if at the time such payment is due or is otherwise made or, after giving effect to such payment, (i) an event constituting an Event
of Default has occurred and is continuing or (ii) an event that with the passage of time and without being cured would constitute
an Event of Default has occurred and is continuing. The
Company shall not pay any amounts in settlement of any litigation (i) at any time (x) prior to the Initial Effective Date, (y)
solely if prior to the first anniversary of the Issuance Date, if a Public Information Failure (as defined in the Registration
Rights Agreement) exists and is continuing or (z) solely if prior to the six month anniversary of the Issuance Date, if a Maintenance
Failure (as defined in the Registration Rights Agreement) exists and is continuing, (ii) in an amount greater than $200,000 in
any trailing 12 month period, and (iii) solely if such litigation was not publicly disclosed prior to the Subscription Date, without
the prior written consent of the Required Holders.


 


(e)          Restriction
on Redemption and Cash Dividends. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly
or indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on any of its capital stock.


 




    	 	30	 



     


    

 


(f)          Restriction
on Transfer of Assets. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the
Company or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions, other
than (i) sales, leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or rights by the Company
and its Subsidiaries in the ordinary course of business consistent with its past practice and (ii) sales of inventory and product
in the ordinary course of business.


 


(g)          Maturity
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
permit any Indebtedness of the Company or any of its Subsidiaries to mature or accelerate prior to the Maturity Date.


 


(h)          Change
in Nature of Business. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or
indirectly, engage in any material line of business substantially different from those lines of business conducted by or publicly
contemplated to be conducted by the Company and each of its Subsidiaries on the Subscription Date or any business substantially
related or incidental thereto. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or
indirectly, modify its or their corporate structure or purpose.


 


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


 


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


 


(k)          Maintenance
of Intellectual Property. The Company will, and will cause each of its Subsidiaries to, take all action necessary or advisable
to maintain all of the Intellectual Property Rights (as defined in the Securities Purchase Agreement) of the Company and/or any
of its Subsidiaries that are necessary or material to the conduct of its business in full force and effect.


 


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


 




    	 	31	 



     


    

 


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


 


(n)          Restricted
Issuances. The Company shall not, directly or indirectly, without the prior written consent of the holders of a majority in
aggregate principal amount of the Notes then outstanding, (i) issue any Notes (other than as contemplated by the Securities Purchase
Agreement and the Notes) or (ii) issue any other securities that would cause a breach or default under the Notes.


 


(o)          Holder
Master Restricted Account.


 


(1)         General.
The Company shall establish and maintain a bank account for each holder of Notes (collectively, including the Holder Master Restricted
Account, the “Master Restricted Accounts”) at a financial institution reasonably acceptable to the holders of
Notes (the “Control Account Bank”), which Master Restricted Account applicable to a holder of Notes shall be
subject to a deposit account control agreement in the form set forth in Exhibit C to the Securities Purchase Agreement (or such
other form reasonably acceptable to such holder of Notes)(each, a “Master Control Account Agreement”). On the
Issuance Date, the Company shall have directed the initial Buyers to deposit an aggregate of $19 million of the Purchase Price
(as defined in the Securities Purchase Agreement) into Master Restricted Accounts.


 


(2)         Control
Account Release. Upon the occurrence of any Control Account Release Event, the Holder shall, as soon as commercially practicable,
but in no event later than two (2) Trading Days thereafter, cause the applicable Control Account Release Amount to be released
from the Holder Master Restricted Account and deposited into the bank account of the Company specified in the Master Control Account
Agreement (each a “Control Account Release”).


 




    	 	32	 



     


    

 


(3)         Grant
of Security Interest. The Company hereby grants and pledges to the Holder a continuing security interest in that certain deposit
account called the Holder Master Restricted Account, including any and all cash, proceeds, funds, credits, rights and other assets
therein or arising therefrom, from time to time, and any additions, dividends, profits and interest in the foregoing and any replacements
or substitutions therefore (collectively, the “Collateral”) to secure prompt repayment of any and all amounts
outstanding hereunder from time to time and to secure prompt performance by the Company of each of its covenants and duties under
the Transaction Documents (as defined in the Securities Purchase Agreement). Such security interest constitutes a valid, first
priority security interest in the presently existing Collateral, and will constitute a valid, first priority security interest
in later-acquired Collateral. Notwithstanding any filings undertaken related to Holder’s rights under the New York Uniform
Commercial Code, the Holder’s Lien (as defined in the Notes) on the Collateral shall remain in effect for so long as any
Restricted Principal remains outstanding. Notwithstanding the foregoing, upon any Control Account Release, but solely with respect
to such portion of the Restricted Principal hereunder subject to such Control Account Release (each, a “Control Account
Release Amount”), the Holder hereby automatically releases any lien hereunder on such Control Account Release Amount.


 


(4)         Cash
Payment Obligations. Notwithstanding anything herein to the contrary, at the option of the Holder, the Holder may satisfy all,
or any part, of any redemption or other cash payment obligation of the Company that has then become due hereunder and/or pursuant
to any other Transaction Document (as defined in the Securities Purchase Agreement) (each, a “Cash Payment Obligation”)
from the Collateral in the Holder Master Restricted Account, including, without limitation, in connection with any Event of Default,
Change of Control, Company Installment Redemption or payment due at the Maturity Date. The Company may request that any Cash Payment
Obligation be satisfied from the Collateral and the Company hereby irrevocably consents to the Holder’s delivery of an instruction
letter to the Control Account Bank to release Collateral from the Holder Master Restricted Account, in each case, in an amount
not to exceed any Cash Payment Obligation to the Holder.  Notwithstanding the foregoing, in the absence of any such election
by the Holder, the Company shall remain obligated to pay such Cash Payment Obligation to the Holder without regard to any Collateral
in the Holder Master Restricted Account. Upon the occurrence of any event which could reasonably be expected to result in a Cash
Payment Obligation (including, without limitation, any breach of an Equity Condition (other than clauses (i) and (vii) of the definition
of Equity Condition prior to the six month anniversary of the initial Issuance Date)), the Holder may, at the Holder’s option,
withdraw all, or any part, of the Collateral in the Holder Master Restricted Account; provided that such withdrawal shall not constitute
the delivery of a Redemption Notice hereunder or payment hereunder unless the Holder specifies in writing to the Company that the
Holder has applied such Collateral in satisfaction of such Cash Payment Obligation.


 




    	 	33	 



     


    

 


(5)         Breach
of Master Control Account Agreement. If the Control Account Bank breaches any covenant or other term or condition of any Master
Control Account Agreement or otherwise fails to promptly comply with the instructions of the Holder in connection with the Collateral,
the Holder may, at its option, withdraw the Collateral from the Control Account Bank and hold such Collateral until such time as
(x) the Company and the Holder have agreed upon a replacement Control Account Bank and (y) a Master Control Account Agreement with
respect to such Collateral and a new account shall have been duly executed by the Company, the Holder and the replacement Control
Account Bank. Notwithstanding anything herein to the contrary, if the Company or any of its Subsidiaries receives any of the Collateral
in breach of any Master Control Account Agreement (or receives notice from any holder of Notes that an amount was wired to the
Company from a Master Restricted Account attributable to such holder of Notes without the proper authorization of such holder of
Notes), the Company shall promptly cause such amounts to be returned to such applicable Master Restricted Account.


 


(p)           Independent
Investigation. At the request of the Holder either (x) at any time when an Event of Default has occurred and is continuing,
(y) upon the occurrence of an event that with the passage of time or giving of notice would constitute an Event of Default or (z)
at any time the Holder reasonably believes an Event of Default may have occurred or be continuing, the Company shall hire an independent,
reputable investment bank selected by the Company and approved by the Holder to investigate as to whether any breach of this Note
has occurred (the “Independent Investigator”). If the Independent Investigator determines that such breach of
this Note has occurred, the Independent Investigator shall notify the Company of such breach and the Company shall deliver written
notice to each holder of a Note of such breach. In connection with such investigation, the Independent Investigator may, during
normal business hours, inspect all contracts, books, records, personnel, offices and other facilities and properties of the Company
and its Subsidiaries and, to the extent available to the Company after the Company uses reasonable efforts to obtain them, the
records of its legal advisors and accountants (including the accountants’ work papers) and any books of account, records,
reports and other papers not contractually required of the Company to be confidential or secret, or subject to attorney-client
or other evidentiary privilege, and the Independent Investigator may make such copies and inspections thereof as the Independent
Investigator may reasonably request. The Company shall furnish the Independent Investigator with such financial and operating data
and other information with respect to the business and properties of the Company as the Independent Investigator may reasonably
request. The Company shall permit the Independent Investigator to discuss the affairs, finances and accounts of the Company with,
and to make proposals and furnish advice with respect thereto to, the Company’s officers, directors, key employees and independent
public accountants or any of them (and by this provision the Company authorizes said accountants to discuss with such Independent
Investigator the finances and affairs of the Company and any Subsidiaries), all at such reasonable times, upon reasonable notice,
and as often as may be reasonably requested.


 


(a)           Financial
Covenants; Announcement of Operating Results.


 


(i)          Minimum
Cash Test. So long as this Note is outstanding, the Company’s Available Cash shall at all times equal or exceed $500,000
(the “Minimum Cash Test”)


 




    	 	34	 



     


    

 


(ii)         Cash
Burn Test. So long as this Note is outstanding, the Company's Cash Burn as of any calendar month shall be less than (x) if
on or prior to the initial date a Registration Statement filed pursuant to the Registration Rights Agreement is declared effective
by the SEC and is available for use by the Holder (the “Initial Effective Date”), $700,000 or (y) if after the
initial Effective Date, $1 million (the “Cash Burn Test”, and together with the Available Cash Test, the “Financial
Tests”).


 


(iii)        Operating
Results Announcement. Commencing with the Fiscal Quarter ending September 30, 2015, the Company shall publicly disclose and
disseminate (such date, the “Announcement Date”) its operating results (the “Operating Results”)
(x) for each of the first three Fiscal Quarters of each fiscal year no later than the forty-fifth (45th) day after the
end of such Fiscal Quarter and (y) for the fourth Fiscal Quarter of each Fiscal Year, no later than the ninetieth (90th)
day after the end of such Fiscal Year, and in the event the Company shall have satisfied the Financial Tests such announcement
shall include a statement to the effect that the Company is not in breach of the Financial Tests for such Fiscal Quarter. On the
Announcement Date, the Company shall also provide to the Holders a certification, executed on behalf of the Company by the Chief
Financial Officer of the Company, certifying that the Company satisfied the Financial Tests for such Fiscal Quarter. If the Company
has failed to meet any Financial Test for such Fiscal Quarter (a “Financial Covenant Failure”), the foregoing
written certification that the Company provides to the Holders shall also state each Financial Test that has not been met (a “Financial
Covenant Failure Notice”). Concurrently with the delivery of each Financial Covenant Failure Notice to the Holders, the
Company shall also make publicly available (as part of a Quarterly Report on Form 10-Q, Annual Report on Form 10-K or on a Current
Report on Form 8-K, or otherwise) the Operating Results, the Financial Covenant Failure Notice and the fact that an Event of Default
has occurred under the Notes.


 


15.           SECURITY.
This Note and the Other Notes are secured to the extent and in the manner set forth in this Note and the other Transaction Documents.


 


16.          DISTRIBUTION
OF ASSETS. In addition to any adjustments pursuant to Section 7, if the Company shall declare or make any dividend or other
distributions of its assets (or rights to acquire its assets) to any or all holders of shares of Common Stock, by way of return
of capital or otherwise (including without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(the “Distributions”), then the Holder will be entitled to such Distributions as if the Holder had held the
number of shares of Common Stock acquirable upon complete conversion of this Note (without taking into account any limitations
or restrictions on the convertibility of this Note and assuming for such purpose that the Note was converted at the Alternate Conversion
Price as of the applicable record date) immediately prior to the date on which a record is taken for such Distribution or, if no
such record is taken, the date as of which the record holders of Common Stock are to be determined for such Distributions (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and
the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution
to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a
result of such Distribution (and beneficial ownership) to the extent of any such excess) and the portion of such Distribution shall
be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the
Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such
Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held similarly
in abeyance) to the same extent as if there had been no such limitation).


 




    	 	35	 



     


    

 


17.          AMENDING
THE TERMS OF THIS NOTE. The prior written consent of the holders of Notes representing at least the Required Holders shall
be required for any change, waiver or amendment to this Note. Any change, waiver or amendment so approved shall be binding upon
all existing and future holders of this Note and any Other Notes; provided, however, that no such change, waiver or, as applied
to any of the Notes held by any particular holder of Notes, shall, without the written consent of that particular holder, (i) reduce
the amount of Principal, reduce the amount of accrued and unpaid Interest, or extend the Maturity Date, of the Notes, (ii) disproportionally
and adversely affect any rights under the Notes of any holder of Notes (except that a holder of Notes that does not have any of
its Notes secured by cash amounts in a Master Restricted Account will not be deemed to be disproportionally and adversely effected
by any change, waiver or amendment to any other holder’s Notes or consideration granted to any other holder of Notes in connection
with any change, waiver or amendment related to any provision relating to any Master Restricted Account); or (iii) modify any of
the provisions of, or impair the right of any holder of Notes under, this 17.


 


18.          TRANSFER.
This Note and any shares of Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by the
Holder without the consent of the Company, subject only to the provisions of Section 2(g) of the Securities Purchase Agreement.


 


19.          REISSUANCE
OF THIS NOTE.


 


(a)          Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Note (in accordance with Section 19(d)), registered as the Holder may request, representing
the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred,
a new Note (in accordance with Section 19(d)) to the Holder representing the outstanding Principal not being transferred. The Holder
and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii) following
conversion or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal
stated on the face of this Note.


 


(b)          Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice
as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company
in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall
execute and deliver to the Holder a new Note (in accordance with Section 19(d)) representing the outstanding Principal.


 




    	 	36	 



     


    

 


(c)          Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal
office of the Company, for a new Note or Notes (in accordance with Section 19(d) and in principal amounts of at least $1,000) representing
in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding
Principal as is designated by the Holder at the time of such surrender.


 


(d)          Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall
be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding
(or in the case of a new Note being issued pursuant to Section 19(a) or Section 19(c), the Principal designated by the Holder which,
when added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed the Principal
remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance date, as indicated
on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions
as this Note, and (v) shall represent accrued and unpaid Interest and Late Charges on the Principal and Interest of this Note,
from the Issuance Date.


 


20.         REMEDIES,
CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative
and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity
(including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s
right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. The Company
covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein.
Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall
be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation
of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that,
in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies,
to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and
without any bond or other security being required. The Company shall provide all information and documentation to the Holder that
is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this
Note (including, without limitation, compliance with Section 7).


 




    	 	37	 



     


    

 


21.          PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement
or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this
Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company
or other proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay
the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization,
receivership or other proceeding, including, without limitation, attorneys’ fees and disbursements. The Company expressly
acknowledges and agrees that no amounts due under this Note shall be affected, or limited, by the fact that the purchase price
paid for this Note was less than the original Principal amount hereof.


 


22.          CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed
against any such Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part
of, or affect the interpretation of, this Note. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed
to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed broadly as if followed by the words “without limitation.”
The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Note
instead of just the provision in which they are found. Unless expressly indicated otherwise, all section references are to sections
of this Note. Terms used in this Note and not otherwise defined herein, but defined in the other Transaction Documents, shall have
the meanings ascribed to such terms on the Closing Date in such other Transaction Documents unless otherwise consented to in writing
by the Holder.


 


23.          FAILURE
OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and
signed by an authorized representative of the waiving party. Notwithstanding the foregoing, nothing contained in this Section 23
shall permit any waiver of any provision of Section 3(d).


 


24.          DISPUTE
RESOLUTION.


 


(a)          Submission
to Dispute Resolution.


 


(i)          In
the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, an Installment Conversion Price,
a Pre-Installment Conversion Price, an Alternate Conversion Price, a VWAP or a fair market value or the arithmetic calculation
of a Conversion Rate, the Restricted Principal, or the applicable Redemption Price (as the case may be) (including, without limitation,
a dispute relating to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the
dispute to the other party via facsimile or electronic mail (A) if by the Company, within two (2) Business Days after the occurrence
of the circumstances giving rise to such dispute or (B) if by the Holder at any time after the Holder learned of the circumstances
giving rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute relating to such Closing
Bid Price, such Closing Sale Price, such Conversion Price, such Installment Conversion Price, such Pre-Installment Conversion Price,
such Alternate Conversion Price, such VWAP or such fair market value, or the arithmetic calculation of such Conversion Rate, the
Restricted Principal or such applicable Redemption Price (as the case may be), at any time after the second (2nd) Business
Day following such initial notice by the Company or the Holder (as the case may be) of such dispute to the Company or the Holder
(as the case may be), then the Company shall select an independent, reputable investment bank, approved by the Holder (such approval
not to be unreasonably withheld or delayed) to resolve such dispute.


 




    	 	38	 



     


    

 


(ii)          The
Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in
accordance with the first sentence of this Section 24 and (B) written documentation supporting its position with respect to such
dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following
the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents
referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute
Documentation”) (it being understood and agreed that if either the Holder or the Company fails to so deliver all of the
Required Dispute Documentation by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute
Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written documentation or other
support to such investment bank with respect to such dispute and such investment bank shall resolve such dispute based solely on
the Required Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline). Unless
otherwise agreed to in writing by both the Company and the Holder or otherwise requested by such investment bank, neither the Company
nor the Holder shall be entitled to deliver or submit any written documentation or other support to such investment bank in connection
with such dispute (other than the Required Dispute Documentation).


 


(iii)         The
Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and
the Holder of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees
and expenses of such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such
dispute shall be final and binding upon all parties absent manifest error.


 




    	 	39	 



     


    

 


(b)          Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 24 constitutes an agreement to arbitrate between the Company
and the Holder (and constitutes an arbitration agreement) under § 7501, et seq. of the New York Civil Practice Law and Rules
(“CPLR”) and that the Holder is authorized to apply for an order to compel arbitration pursuant to CPLR §
7503(a) in order to compel compliance with this Section 24, (ii) a dispute relating to a Conversion Price includes, without limitation,
disputes as to (A) whether an issuance or sale or deemed issuance or sale of Common Stock occurred under Section 7(a), (B) the
consideration per share at which an issuance or deemed issuance of Common Stock occurred, (C) whether any issuance or sale or deemed
issuance or sale of Common Stock was an issuance or sale or deemed issuance or sale of Excluded Securities, (D) whether an agreement,
instrument, security or the like constitutes and Option or Convertible Security and (E) whether a Dilutive Issuance occurred, (iii)
the terms of this Note and each other applicable Transaction Document shall serve as the basis for the selected investment bank’s
resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized) to make all findings,
determinations and the like that such investment bank determines are required to be made by such investment bank in connection
with its resolution of such dispute and in resolving such dispute such investment bank shall apply such findings, determinations
and the like to the terms of this Note and any other applicable Transaction Documents, (iv) the Holder (and only the Holder), in
its sole discretion, shall have the right to submit any dispute described in this Section 24 to any state or federal court sitting
in The City of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this Section 24 and (v) nothing
in this Section 24 shall limit the Holder from obtaining any injunctive relief or other equitable remedies (including, without
limitation, with respect to any matters described in this Section 24).








 


25.           NOTICES;
CURRENCY; PAYMENTS.


 


(a)           Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance
with Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all
actions taken pursuant to this Note, including in reasonable detail a description of such action and the reason therefore. Without
limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment
of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least
fifteen (15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or
distribution upon the Common Stock, (B) with respect to any grant, issuances, or sales of any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property to holders of shares of Common Stock or (C) for determining rights
to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall
be made known to the public prior to or in conjunction with such notice being provided to the Holder.


 


(b)           Currency.
All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing
under this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the
U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate”
means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange
rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an
amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period
of time).


 




    	 	40	 



     


    

 


(c)          Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, unless otherwise expressly set forth
herein, such payment shall be made in lawful money of the United States of America by a certified check drawn on the account of
the Company and sent via overnight courier service to such Person at such address as previously provided to the Company in writing
(which address, in the case of each of the Buyers, shall initially be as set forth on the Schedule of Buyers attached to the Securities
Purchase Agreement), provided that the Holder may elect to receive a payment of cash via wire transfer of immediately available
funds by providing the Company with prior written notice setting out such request and the Holder’s wire transfer instructions.
Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a Business Day, the same shall
instead be due on the next succeeding day which is a Business Day. Any amount of Principal or other amounts due under the Transaction
Documents which is not paid when due (solely to the extent such amount is not then accruing interest at the Default Rate) shall
result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount at the rate of
fifteen percent (15%) per annum from the date such amount was due until the same is paid in full (“Late Charge”).


 


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


 


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


 


28.           GOVERNING
LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Except as otherwise required by Section
24 above, the Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City
of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. Nothing contained herein (i) shall be deemed or operate to
preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on
the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce
a judgment or other court ruling in favor of the Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision
of Section 24. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.


 




    	 	41	 



     


    

 


29.           JUDGMENT
CURRENCY.


 


(a)          If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to
convert into any other currency (such other currency being hereinafter in this Section 29 referred to as the “Judgment
Currency”) an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing
on the Trading Day immediately preceding:


 


(i)          the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(ii)         the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as
of which such conversion is made pursuant to this Section 29(a)(ii) being hereinafter referred to as the “Judgment Conversion
Date”).


 


(b)          If
in the case of any proceeding in the court of any jurisdiction referred to in Section 29(a)(ii) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted
at the Exchange Rate prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with
the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion
Date.


 


(c)          Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Note.


 


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


 




    	 	42	 



     


    

 


31.          MAXIMUM
PAYMENTS. Without limiting Section 9(d) of the Securities Purchase Agreement, nothing contained herein shall be deemed to establish
or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event
that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments
in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.


 


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


 


(a)          “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.


 


(b)          “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.


 


(c)          
“Adjustment Right” means any right granted with respect to any securities issued in connection with, or with
respect to, any issuance or sale (or deemed issuance or sale in accordance with Section 7) of shares of Common Stock (other than
rights of the type described in Section 6(a) hereof) that could result in a decrease in the net consideration received by the Company
in connection with, or with respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment
or other similar rights).


 


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


 


(e)          “Alternate
Conversion Price” means, with respect to any Alternate Conversion that price which shall be the lower of (i) the applicable
Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion and (ii) the lowest of (A)
80% of the VWAP of the Common Stock as of the Trading Day immediately preceding the delivery or deemed delivery of the applicable
Conversion Notice, (B) 80% of the VWAP of the Common Stock as of the Trading Day of the delivery or deemed delivery of the applicable
Conversion Notice and (C) 80% of the price computed as the quotient of (I) the sum of the five (5) lowest VWAPs of the Common Stock
during the forty (40) consecutive Trading Day period ending and including the Trading Day immediately preceding the delivery or
deemed delivery of the applicable Conversion Notice, divided by (II) five (5) (such period, the “Alternate Conversion
Measuring Period”). All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination,
reclassification or similar transaction that proportionately decreases or increases the Common Stock during such Alternate Conversion
Measuring Period.


 




    	 	43	 



     


    

 


(f)          
“Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the
Company prior to or subsequent to the Subscription Date pursuant to which shares of Common Stock and standard options to purchase
Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.


 


(g)          “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by
the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder
or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any
of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated
with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose
of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.


 


(h)          “Available
Cash” means, with respect to any date of determination, an amount equal to the aggregate amount of the Cash of the Company
and its Subsidiaries (excluding for this purpose cash held in restricted accounts with respect to any Indebtedness of the Company
or any of its Subsidiaries, other than as provided for in the Transaction Documents) as of such date of determination held in bank
accounts of financial banking institutions in the United States of America (excluding any Cash held in any Master Restricted Account
or subject to any other restriction on being freely used by the Company or any of its Subsidiaries or to the extent such Cash does
not consist of immediately available funds). For the avoidance of doubt, with respect to any transaction in which any Person pays
Cash to the Company or any of its Subsidiaries, Available Cash as of any given date shall not include the Cash in such transaction
if such Cash, at any time thereafter, is refunded or returned to such Person (whether in exchange for the return of assets, redemption
of securities, or otherwise).


 


(i)          
Black Scholes Consideration Value” means the value of the applicable Option, Convertible Security or Adjustment
Right (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained
from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of
the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with
respect to the issuance of such Option, Convertible Security or Adjustment Right (as the case may be), (ii) a risk-free interest
rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Option, Convertible Security or Adjustment
Right (as the case may be) as of the date of issuance of such Option, Convertible Security or Adjustment Right (as the case may
be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the 100 day volatility obtained
from the “HVT” function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day
immediately following the date of issuance of such Option, Convertible Security or Adjustment Right (as the case may be).


 




    	 	44	 



     


    

 


(j)          “Bloomberg”
means Bloomberg, L.P.


 


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


 


(l)          
“Cash” of the Company and its Subsidiaries on any date shall be determined from such Persons’ books maintained
in accordance with GAAP, and means, without duplication, the cash, cash equivalents and Eligible Marketable Securities accrued
by the Company and its wholly owned Subsidiaries on a consolidated basis on such date.


 


(m)          “Cash
Burn” means, with respect to any given calendar month, the difference between (i) the Available Cash as of the last calendar
day in such calendar month, less (ii) the Available Cash as of the first calendar day in such calendar month.


 


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


 


(o)          “Change
of Control Redemption Premium” means 125%.


 


(p)          “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price
and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal
Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as
the case may be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time,
as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security,
the last closing bid price or last trade price, respectively, of such security on the principal securities exchange or trading
market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid
price or last trade price, respectively, of such security in the over-the-counter market on the electronic bulletin board for such
security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security
by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported
in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Bid Price or the Closing
Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the
Closing Sale Price (as the case may be) of such security on such date shall be the fair market value as mutually determined by
the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then
such dispute shall be resolved in accordance with the procedures in Section 24. All such determinations shall be appropriately
adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such
period.


 




    	 	45	 



     


    

 


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


 


(r)          “Common
Stock” means (i) the Company’s shares of common stock, $0.0001 par value per share, and (ii) any capital stock
into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(s)          “Control
Account Release Amount” means, with respect to any given Control Account Release Event, such amount of cash as specified
in the applicable clause of the definition of “Control Account Release Event”.


 


(t)          
“Control Account Release Event” means, as applicable, (i) with respect to any Restricted Principal designated
to be converted in a Conversion Notice, the Company’s receipt of both (A) such Conversion Notice hereunder executed by the
Holder in which all, or any part, of the Principal to be converted includes any Restricted Principal and (B) written confirmation
by the Holder that the shares of Common Stock issued pursuant to such Conversion Notice have been properly delivered in accordance
with Section 3(c) (in each case, as adjusted, if applicable, to reflect the withdrawal of any Conversion Notice, in whole or in
part, by the Holder, whether pursuant to Section 3(c)(ii) or otherwise), (ii) the Company’s receipt of a notice by the Holder
electing to effect a release of cash with respect to any Restricted Principal to the Company, (iii) with respect to the Holder
Pro Rata Amount of $500,000, the occurrence of the Initial Filing Date (as defined in the Registration Rights Agreement), (iv)
with respect to the Holder Pro Rata Amount of $1,000,000, the occurrence of a Positive UK Trial Outcome, (v) with respect to the
Holder Pro Rata Amount of $2,000,000, on the thirtieth (30th) Trading Day after the occurrence of the initial Effective
Date (as defined in the Registration Rights Agreement) and (vi) on the first Trading Day of each calendar month after the later
of (A) the Stockholder Approval Date (as defined in the Securities Purchase Agreement), (B) the sixtieth (60th) Trading
Day after the Registration Release Date, the lesser of (x) the amount of Restricted Principal then outstanding hereunder and (y)
the Holder Pro Rata Amount of $1,000,000; provided, in the case of clauses (iii), (iv), (v) and (vi) above, as of such date of
determination, no Equity Conditions Failure then exists (other than, (I) solely with respect to clause (iii) and (iv), any Equity
Condition Failure existing solely as a result of the failure of the initial Effective Date to have occurred or Required Minimum
Securities Amount to be available, in each case, on or prior to such date, or a threatened suspension from a Major Market and (II)
solely with respect to clause (v), any Equity Conditions Failure existing solely as a result of the failure of the initial Effective
Date to have occurred on or prior to first Trading Day in the applicable Equity Conditions Measuring Period).


 




    	 	46	 



     


    

 


(u)          
“Conversion Share Ratio” means as to any applicable Installment Date, the quotient of (i) the number of Pre-Installment
Conversion Shares delivered in connection with such Installment Date divided by (ii) the number of Post-Installment Conversion
Shares applicable to such Installment Date.


 


(v)         “Convertible
Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any
shares of Common Stock.


 


(w)          “Current
Subsidiary” means any Person in which the Company on the Subscription Date, directly or indirectly, (i) owns any of the
outstanding capital stock or holds any equity or similar interest of such Person or (ii) controls or operates all or any part of
the business, operations or administration of such Person, and all of the foregoing, collectively, “Current Subsidiaries”.


 


(x)          “Eligible
Market” means The New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market, the
OTCQX, the OTCQB or the Principal Market.


 


(y)          “Eligible
Marketable Securities” as of any date means marketable securities which would be reflected on a consolidated balance
sheet of the Company and its Subsidiaries prepared as of such date in accordance with GAAP, and which are permitted under the Company’s
investment policies as in effect on the Issuance Date or approved thereafter by the Company’s Board of Directors.


 




    	 	47	 



     


    

 


(z)          
“Equity Conditions” means, with respect to an given date of determination: (i) on each day during the period
beginning thirty calendar days prior to such applicable date of determination and ending on and including such applicable date
of determination (or, with respect to the initial Installment Date, during the period beginning on the Initial Installment Notice
Due Date and ending on and including the initial Installment Date) (the “Equity Conditions Measuring Period”)
either (x) one or more Registration Statements filed pursuant to the Registration Rights Agreement shall be effective and the prospectus
contained therein shall be available on such applicable date of determination (with, for the avoidance of doubt, any shares of
Common Stock previously sold pursuant to such prospectus deemed unavailable) for the resale of all shares of Common Stock to be
issued in connection with the event requiring this determination (or issuable upon conversion of the Conversion Amount being redeemed
or amount of Restricted Principal being released, as applicable, in the event requiring this determination at the Alternate Conversion
Price then in effect (without regard to any limitations on conversion set forth herein))(each, a “Required Minimum Securities
Amount”), in each case, in accordance with the terms of the Registration Rights Agreement and there shall not have been
during such period any Grace Periods (as defined in the Registration Rights Agreement) or (y) all Conversion Shares issuable pursuant
to the terms of the Notes shall be eligible for sale pursuant to Rule 144 (as defined in the Securities Purchase Agreement) without
the need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion
of the Notes) and no Current Information Failure (as defined in the Registration Rights Agreement) exists or is continuing; (ii)
on each day during the Equity Conditions Measuring Period, the Common Stock (including all Registrable Securities) is listed or
designated for quotation (as applicable) on a Major Market and shall not have been suspended from trading on an Major Market (other
than suspensions of not more than two (2) days and occurring prior to the applicable date of determination due to business announcements
by the Company) nor shall delisting or suspension by an Major Market have been threatened (with a reasonable prospect of delisting
occurring after giving effect to all applicable notice, appeal, compliance and hearing periods) or reasonably likely to occur or
pending as evidenced by (A) a writing by such Major Market or (B) the Company falling below the minimum listing maintenance requirements
of the Major Market on which the Common Stock is then listed or designated for quotation (as applicable); (iii) during the Equity
Conditions Measuring Period, the Company shall have delivered all shares of Common Stock issuable upon conversion of this Note
on a timely basis as set forth in Section 3 hereof and all other shares of capital stock required to be delivered by the Company
on a timely basis as set forth in the other Transaction Documents; (iv) any shares of Common Stock to be issued in connection with
the event requiring determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring this
determination) may be issued in full without violating Section 3(d) hereof; (v) any shares of Common Stock to be issued in connection
with the event requiring determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring
this determination (without regards to any limitations on conversion set forth herein))) may be issued in full without violating
the rules or regulations of the Eligible Market on which the Common Stock is then listed or designated for quotation (as applicable);
(vi) on each day during the Equity Conditions Measuring Period, no public announcement of a pending, proposed or intended Fundamental
Transaction shall have occurred which has not been abandoned, terminated or consummated; (vii) the Company shall have no knowledge
of any fact that would reasonably be expected to cause (1) any Registration Statement required to be filed pursuant to the Registration
Rights Agreement to not be effective or the prospectus contained therein to not be available for the resale of the applicable Required
Minimum Securities Amount of Registrable Securities in accordance with the terms of the Registration Rights Agreement or (2) any
Registrable Securities to not be eligible for sale pursuant to Rule 144 without the need for registration under any applicable
federal or state securities laws (in each case, disregarding any limitation on conversion of the Notes, other issuance of securities
with respect to the Notes) and no Current Information Failure exists or is continuing; (viii) the Holder shall not be in (and no
other holder of Notes shall be in) possession of any material, non-public information provided to any of them by the Company, any
of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents or the like; (ix) on each
day during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with each, and shall not
have breached any representation or warranty in any material respect (other than representations or warranties subject to material
adverse effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of any Transaction
Document, including, without limitation, the Company shall not have failed to timely make any payment pursuant to any Transaction
Document; (x) there shall not have occurred any Volume Failure or Price Failure as of such applicable date of determination; (xi)
on the applicable date of determination (A) no Authorized Share Failure shall exist or be continuing and the applicable Required
Minimum Securities Amount of shares of Common Stock are available under the certificate of incorporation of the Company and reserved
by the Company to be issued pursuant to the Notes and (B) all shares of Common Stock to be issued in connection with the event
requiring this determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring this determination
(without regards to any limitations on conversion set forth herein)) may be issued in full without resulting in an Authorized Share
Failure; (xii) on each day during the Equity Conditions Measuring Period, there shall not have occurred and there shall not exist
an Event of Default or an event that with the passage of time or giving of notice would constitute an Event of Default; and (xiii)
the shares of Common Stock issuable pursuant the event requiring the satisfaction of the Equity Conditions are duly authorized
and listed and eligible for trading without restriction on an Eligible Market.


 




    	 	48	 



     


    

 


(aa)         “Equity
Conditions Failure” means that (i) on any day during the period commencing forty (40) Trading Days prior to the applicable
Company Optional Redemption Notice Date through the applicable Company Optional Redemption Date or (ii) on any day during the period
commencing on the applicable Installment Notice Date through the later of the applicable Installment Date and the date on which
the applicable shares of Common Stock are actually delivered to the Holder, (iii) any day during the period commencing forty (40)
Trading Days prior to the date of the applicable Control Account Release Event through the date of the applicable Control Account
Release Event or (iv) on any day during the period commencing sixty (60) Trading Days prior to the applicable Mandatory Conversion
Notice Date through the applicable Mandatory Conversion Date, the Equity Conditions have not been satisfied (or waived in writing
by the Holder).


 


(bb)         “Event
Market Price” means, with respect to any Stock Combination Event Date, the quotient determined by dividing (x) the sum
of the VWAP of the Common Stock for each of the five (5) lowest Trading Days during the forty (40) consecutive Trading Day period
ending and including the Trading Day immediately preceding the forty-first (41st) Trading Day after such Stock Combination Event
Date, divided by (y) five (5).


 




    	 	49	 



     


    

 


(cc)         “Excluded
Securities” means (i) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers
or employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan (as
defined above), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of
such options) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 2,000,000 shares
of the Common Stock (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events) and
(B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable
thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely
affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other
than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above)
issued prior to the Subscription Date, provided that the conversion price of any such Convertible Securities (other than standard
options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered,
none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock
Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms
or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved
Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the
Buyers; (iii) the shares of Common Stock issuable upon conversion of the Notes or otherwise pursuant to the terms of the Notes;
provided, that the terms of the Notes are not amended, modified or changed on or after the Subscription Date (other than antidilution
adjustments pursuant to the terms thereof in effect as of the Subscription Date), and (iv) shares of Common Stock, Options and
Convertible Securities issued pursuant to equipment lease financings, strategic mergers or acquisitions of other assets or businesses,
or strategic licensing or development transactions; provided that (x) the primary purpose of such issuance is not to raise capital
as determined in good faith by the Buyers, (y) the purchaser or acquirer of such shares of Common Stock in such issuance solely
consists of either (1) the actual participants in such equipment lease financings, or strategic licensing or development transactions,
(2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the shareholders, partners or
members of the foregoing Persons, and (z) the number or amount (as the case may be) of such shares of Common Stock issued to such
Person by the Company shall not be disproportionate to such Person’s actual participation in such equipment lease financings,
or strategic licensing or development transactions or ownership of such assets or securities to be acquired by the Company (as
applicable).


 


(dd)         “Fiscal
Quarter” means each of the fiscal quarters adopted by the Company for financial reporting purposes that correspond
to the Company's fiscal year as of the date hereof that ends on December 31.


 


(ee)         “Fiscal
Year” means the fiscal year adopted by the Company for financial reporting purposes that ends on December 31.


 




    	 	50	 



     


    

 


(ff)         
“Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries,
Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company
is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially
all of the properties or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of
Regulation S-X) to one or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company
to be subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or
exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of
the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party
to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or
(z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity
making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock or share purchase agreement
or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement)
with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least
50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any
shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party
to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock
such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least
50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company
shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow
any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance,
tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner
whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock,
(y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such
Subject Entities as of the date of this Note calculated as if any shares of Common Stock held by all such Subject Entities were
not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common
Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger
or other transaction requiring other shareholders of the Company to surrender their shares of Common Stock without approval of
the shareholders of the Company or (C) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one
or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to
circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition
or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.


 




    	 	51	 



     


    

 


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


 


(hh)        “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.


 


(ii)         
“Holder Master Restricted Account” means, solely with respect to the Holder, account number [         ] at Hancock
Bank, or such other account as may be directed by the Holder, from time to time, subject to a Master Control Account Agreement
in favor of the Holder in a form reasonably acceptable to the Holder.


 


(jj)         
“Holder Pro Rata Amount” means a fraction (i) the numerator of which is the original Principal amount of this
Note on the Closing Date and (ii) the denominator of which is the aggregate original principal amount of all Notes issued to the
initial purchasers pursuant to the Securities Purchase Agreement on the Closing Date.


 


(kk)      
“Indebtedness” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(ll)         “Initial
Installment Notice Due Date” means the earlier of (x) the initial Effective Date and (y) December 14, 2015.


 


(mm)      “Installment
Amount” means the sum of (A) (i) with respect to any Installment Date other than the Maturity Date, the lesser of (x)
the quotient of (I) $[ ]1 and (y) the Principal amount
then outstanding under this Note as of such Installment Date, and (ii) with respect to the Installment Date that is the Maturity
Date, the Principal amount then outstanding under this Note as of such Installment Date (in each case, as any such Installment
Amount may be reduced pursuant to the terms of this Note, whether upon conversion, redemption or otherwise), (B) any Deferral Amount
deferred pursuant to Section 8(d) and included in such Installment Amount in accordance therewith, (C) and Acceleration Amount
accelerated pursuant to Section 8(e) and included in such Installment Amount in accordance therewith and (D) in each case of clauses
(A) through (C) above, the sum of any accrued and unpaid Interest as of such Installment Date under this Note, if any, the applicable
Make-Whole Amount with respect to such Installment Amount, if any, and accrued and unpaid Late Charges, if any, under this Note
as of such Installment Date. In the event the Holder shall sell or otherwise transfer any portion of this Note, the transferee
shall be allocated a pro rata portion of the each unpaid Installment Amount hereunder.


 


(nn)         “Installment
Conversion Price” means, with respect to a particular date of determination, the lowest of (i) the Conversion Price then
in effect, and (ii) 80% of the quotient of (A) the sum of the VWAP of the Common Stock for each of the five (5) lowest Trading
Days during the forty (40) consecutive Trading Day period ending and including the Trading Day immediately prior to the applicable
Installment Date, divided by (B) five (5). All such determinations to be appropriately adjusted for any stock split, stock dividend,
stock combination or other similar transaction during any such measuring period.


  





 



1 Insert 1/20th of
initial Principal


  



    	 	52	 



     


    

 


(oo)         “Installment
Date” means (i) the twenty-sixth (26th) Trading Day after the Initial Installment Notice Due Date, (ii) then, (x) if
the last Trading Day of the calendar month immediately following the initial Installment Date occurs less than twenty (20) Trading
Days after the initial Installment Date, the last Trading Day of the second calendar month immediately following the initial Installment
Date or (y) otherwise, the last Trading Day of the calendar month immediately following the initial Installment Date, (iii) thereafter,
the last Trading Day of the calendar month immediately following the previous Installment Date until the Maturity Date, and (iv)
the Maturity Date.


 


(pp)         “Interest
Date” means, with respect to any given calendar month, (x) if prior to the initial Installment Date or after the Maturity
Date, the last Trading Day of such calendar month or (y) if on or after the initial Installment Date, but on or prior to the Maturity
Date, such Installment Date, if any, in such calendar month.


 


(qq)         “Interest
Rate” means eight percent (8%) per annum, simple interest, as may be adjusted from time to time in accordance with
Section 2.


 


(rr)         “Major
Market” means The New York Stock Exchange, the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Select Market,
the Nasdaq Global Market.


 


(ss)         
“Make-Whole Amount” means, as of any given date and as applicable, in connection with any conversion, installment
or redemption, the amount of any Interest that, but for any conversion, installment or redemption hereunder on such given date,
would have accrued with respect to the Conversion Amount being converted or redeemed under this Note at the Interest Rate for the
period from such given date through the Maturity Date.


 


(tt)         
“Maturity Date” shall mean October 15, 2018; provided, however, the Maturity Date may be extended at
the option of the Holder (i) in the event that, and for so long as, an Event of Default shall have occurred and be continuing or
any event shall have occurred and be continuing that with the passage of time and the failure to cure would result in an Event
of Default or (ii) through the date that is twenty (20) Business Days after the consummation of a Fundamental Transaction in the
event that a Fundamental Transaction is publicly announced or a Change of Control Notice is delivered prior to the Maturity Date,
provided further that if a Holder elects to convert some or all of this Note pursuant to Section 3 hereof, and the Conversion Amount
would be limited pursuant to Section 3(d) hereunder, the Maturity Date shall automatically be extended until such time as such
provision shall not limit the conversion of this Note.


 




    	 	53	 



     


    

 


(uu)         “New
Subsidiary” means, as of any date of determination, any Person in which the Company after the Subscription Date, directly
or indirectly, (i) owns or acquires any of the outstanding capital stock or holds any equity or similar interest of such Person
or (ii) controls or operates all or any part of the business, operations or administration of such Person, and all of the foregoing,
collectively, “New Subsidiaries”.


 


(vv)         “Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.


 


(ww)         “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock
or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity,
the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.


 


(xx)        “Permitted
Default Indebtedness” such Indebtedness described in Schedule 4(a)(viii) attached hereto pursuant to the terms and conditions
of such Indebtedness as in effect as of the Subscription Date; provided, that no such Indebtedness may be in default for more than
seventy-five (75) consecutive calendar days.


 


(yy)         “Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) Indebtedness set forth on Schedule
3(s) to the Securities Purchase Agreement, as in effect as of the Subscription Date and (iii) Indebtedness secured by Permitted
Liens or unsecured but as described in clauses (iv) and (v) of the definition of Permitted Liens.


 


(zz)         “Permitted
Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course
of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation
of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business
with respect to a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings,
(iv) Liens (A) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price
of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment, or (B)
existing on such equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired
and improvements thereon, and the proceeds of such equipment, in either case, with respect to Indebtedness in an aggregate amount
not to exceed $100,000, (v) Liens incurred in connection with the extension, renewal or refinancing of the Indebtedness secured
by Liens of the type described in clause (iv) above, provided that any extension, renewal or replacement Lien shall be limited
to the property encumbered by the existing Lien and the principal amount of the Indebtedness being extended, renewed or refinanced
does not increase, (vi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of custom
duties in connection with the importation of goods, and (vii) Liens arising from judgments, decrees or attachments in circumstances
not constituting an Event of Default under Section 4(a)(xii),


 




    	 	54	 



     


    

 


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


 


(bbb)        “Positive
UK Trial Outcome” means a public announcement by the Company that the Company’s initial Phase I clinical trial
in the United Kingdom resulted in no safety concerns and that the Company is in a position to proceed with further clinical development
of Anatabine Citrate.


 


(ccc)        “Post-Installment
Conversion Shares” means that number of shares of Common Stock that would be required to be delivered pursuant to Section
8 on an applicable Installment Date without taking into account the delivery of any Pre-Installment Conversion Shares.


 


(ddd)        “Pre-Installment
Conversion Price” means, with respect to a particular date of determination, the lowest of (i) the Conversion Price then
in effect, and (ii) 80% of the quotient of (A) the sum of the VWAP of the Common Stock for each of the five (5) lowest Trading
Days during the forty (40) consecutive Trading Day period ending and including the Trading Day immediately preceding the date of
the delivery or deemed delivery of the applicable Installment Notice, divided by (B) five (5). All such determinations to be appropriately
adjusted for any stock split, stock dividend, stock combination or other similar transaction during any such measuring period.


 


(eee)        “Price
Failure” means, with respect to a particular date of determination, the quotient of (x) the sum of the VWAP of the Common
Stock for each Trading Day during the forty (40) Trading Day period ending on, and including, the Trading Day immediately preceding
such date of determination, divided by (y) forty (40) fails to exceed $0.45 (as adjusted for stock splits, stock dividends, stock
combinations, recapitalizations or other similar transactions occurring after the Subscription Date). All such determinations to
be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions
during any such measuring period.


 


(fff)        “Principal
Market” means the Nasdaq Capital Market (or, if the shares of Common Stock are not listed on the Nasdaq Capital Market
and are listed on one or more Eligible Markets, the primary Eligible Market in which the shares of Common Stock are then listed).


 


(ggg)        “Redemption
Notices” means, collectively, the Event of Default Redemption Notices, the Installment Notices with respect to any Installment
Redemption, the Company Optional Redemption Notices and the Change of Control Redemption Notices, and each of the foregoing, individually,
a “Redemption Notice.”


 


(hhh)        “Redemption
Premium” means 125%.


 




    	 	55	 



     


    

 


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


 


(jjj)        “Registration
Rights Agreement” means that certain registration rights agreement, dated as of the Closing Date, by and among the Company
and the initial holders of the Notes relating to, among other things, the registration of the resale of the Common Stock issuable
upon conversion of the Notes or otherwise pursuant to the terms of the Notes, as may be amended from time to time.


 


(kkk)      “Registration
Release Date” means the earlier to occur of (i) the Effective Date (as defined in the Registration Rights Agreement)
of a Registration Statement registering any of the Registrable Securities (as defined in the Registration Rights Agreement) and
(ii) the later of (x) the initial date all of the Registrable Securities are eligible to be sold pursuant to Rule 144 and (y) the
date no Current Information Failure (as defined in the Registration Rights Agreement) exists or is continuing.


 


(lll)        “Required
Holders’ means the holders of Notes representing at least a majority of the aggregate principal amount of the Notes then
outstanding; provided, that such majority must include Alto Opportunity Master Fund, SPC (including any successor and assigns,
collectively, “Alto”), so long as Alto beneficially owns at least $500,000 in aggregate principal amount of
Notes.


 


(mmm)   “Restricted
Principal” means, as of any given date, the difference of (i) all cash amounts held in the Master Restricted Account
of the Holder as of the Closing Date and (ii) all cash amounts released from the Master Restricted Account of the Holder to the
Company (or at the Company’s direction) on or prior to such given date.


 


(nnn)    
“SEC” means the United States Securities and Exchange Commission or the successor thereto.


 


(ooo)      “Securities
Purchase Agreement” means that certain securities purchase agreement, dated as of the Subscription Date, by and among
the Company and the initial holders of the Notes pursuant to which the Company issued the Notes, as may be amended from time to
time.


 


(ppp)    
“Subscription Date” means October 14, 2015.


 


(qqq)      “Subsidiaries”
means, as of any date of determination, collectively, all Current Subsidiaries and all New Subsidiaries, and each of the foregoing,
individually, a “Subsidiary.”


 


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


 


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


 




    	 	56	 



     


    

 


(ttt)        “Trading
Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock,
any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market
for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded,
provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange
or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on
such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange
or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day
in writing by the Holder or (y) with respect to all determinations other than price determinations relating to the Common Stock,
any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.


 


(uuu)        “Volume
Failure” means, with respect to a particular date of determination, the aggregate daily dollar trading volume (as reported
on Bloomberg) of the Common Stock on the Principal Market on each Trading Day during the forty (40) Trading Day period ending on,
and including, the Trading Day immediately preceding such date of determination (such period, the “Volume Failure Measuring
Period”), is less than $150,000 (as adjusted for any stock splits, stock dividends, stock combinations, recapitalizations
or other similar transactions occurring after the Subscription Date). All such determinations to be appropriately adjusted for
any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such Volume Failure
Measuring Period.


 


(vvv)        
“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on
the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal
securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New
York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted
average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter
market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending
at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security
by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market
makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If
the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date
shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to
agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section
24. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or other similar transaction during such period.


 




    	 	57	 



     


    

 


33.         DISCLOSURE.
Upon receipt or delivery by the Company of any notice in accordance with the terms of this Note, unless the Company has in good
faith determined that the matters relating to such notice do not constitute material, non-public information relating to the Company
or any of its Subsidiaries, the Company shall within one (1) Business Day after any such receipt or delivery publicly disclose
such material, non-public information on a Current Report on Form 8-K or otherwise. In the event that the Company believes that
a notice contains material, non-public information relating to the Company or any of its Subsidiaries, the Company so shall indicate
to the Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed
to presume that all matters relating to such notice do not constitute material, non-public information relating to the Company
or any of its Subsidiaries. If the Company or any of its Subsidiaries provides material non-public information to the Holder that
is not simultaneously filed in a Current Report on Form 8-K and the Holder has not agreed to receive such material non-public information,
the Company hereby covenants and agrees that the Holder shall not have any duty of confidentiality to the Company, any of its Subsidiaries
or any of their respective officers, directors, employees, affiliates or agents with respect to, or a duty to any of the foregoing
not to trade on the basis of, such material non-public information. Nothing contained in this Section 33 shall limit any obligations
of the Company, or any rights of the Holder, under Section 4(i) of the Securities Purchase Agreement.


 


[signature page follows]


 




    	 	58	 



     


    

 


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


 


 


	 	ROCK CREEK PHARMACEUTICALS, INC.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 


Senior Convertible
Note - Signature Page


 




     


     


    

 


EXHIBIT
I


 


ROCK CREEK PHARMACEUTICALS,
INC.


CONVERSION NOTICE


 


Reference is made
to the Senior Convertible Note (the “Note”) issued to the undersigned by Rock Creek Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”). In accordance with and pursuant to the Note, the undersigned hereby
elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into shares of Common Stock, $0.0001
par value per share (the “Common Stock”), of the Company, as of the date specified below. Capitalized terms
not defined herein shall have the meaning as set forth in the Note.


 








	Date of Conversion:	 
	 	 
	Aggregate Principal to be converted:	 
	 	 
	Aggregate accrued and unpaid Interest and accrued and unpaid Late Charges with respect to such portion of the Aggregate Principal and such Aggregate Interest to be converted:	 
	 	 
	Aggregate Make-Whole Amount (if any)	 
	 	 
	AGGREGATE CONVERSION AMOUNT

 TO BE CONVERTED:	 
	 	 
	Please confirm the following information:
	 
	Conversion Price:	 
	 	 
	Number of shares of Common Stock to be issued:	 
	 	 
	Installment Amount(s) to be reduced (and corresponding Installment Date(s)) and amount of reduction:	 
	 	 	 	 	 



Notwithstanding anything to the contrary
contained herein, this Conversion Notice shall constitute a representation by the Holder of the Note submitting this Conversion
Notice that after giving effect to the conversion provided for in this Conversion Notice, such Holder (together with its affiliates)
will not have beneficial ownership (together with the beneficial ownership of such Person’s affiliates) of a number of shares
of Common Stock which exceeds the Maximum Percentage (as defined in the Note) of the total outstanding shares of Common Stock of
the Company as determined pursuant to the provisions of Section 3(d)(i) of the Note.


 




     


     


    

 


 ̈            Check
here if all or any portion of the aggregate Principal being converted includes any Restricted Principal.


 


		 ̈	If this Conversion Notice is being delivered with respect to an Alternate Conversion, check here
if Holder is electing to use the following Alternate Conversion Price:____________



 


		 ̈	If this Conversion Notice is being delivered with respect to an Acceleration, check here if Holder
is electing to use _________ as the Pre-Installment Conversion Price or Installment Conversion Price (as applicable) related to
the following Installment Date:____________



 


Please issue the Common Stock into which
the Note is being converted to Holder, or for its benefit, as follows:


 


		 ̈	Check here if requesting delivery as a certificate to the following name and to the following address:



 


	Issue to:	 
	 	 
	 	 


 


		 ̈	Check here if requesting delivery by Deposit/Withdrawal
at Custodian as follows:



 


	DTC Participant:	 
	 	 
	DTC Number:	 
	 	 
	Account Number:	 



 


	Date:                                       
        ,       	 
	 	 
	                                                  	 
	Name of Registered Holder	 




 






     


     


    




 


	By: 	 	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	Tax ID:_____________________________________	 
	 	 	 
	 	Facsimile:___________________________________	 


 


	E-mail Address:	 


 




     


     


    

 


ACKNOWLEDGMENT


 


The Company hereby
acknowledges this Conversion Notice and hereby directs _________________ to issue the above indicated number of shares of Common
Stock in accordance with the Transfer Agent Instructions dated _____________, 20__ from the Company and acknowledged and agreed
to by ________________________.





 


	 	ROCK CREEK PHARMACEUTICALS, INC.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 



     


     


    

 


Exhibit B


 


REGISTRATION RIGHTS AGREEMENT


 


This REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of October __, 2015, is by and among Rock Creek Pharmaceuticals,
Inc., a Delaware corporation with offices located at 2040 Whitfield Ave., Ste. 300, Sarasota Florida 34240 (the “Company”),
and the undersigned buyers (each, a “Buyer,” and collectively, the “Buyers”).


 


RECITALS


 


A.           In
connection with the Securities Purchase Agreement by and among the parties hereto, dated as of October 14, 2015 (the “Securities
Purchase Agreement”), the Company has agreed, upon the terms and subject to the conditions of the Securities Purchase
Agreement, to issue and sell to each Buyer the Notes (as defined in the Securities Purchase Agreement) which will be convertible
into Conversion Shares (as defined in the Securities Purchase Agreement) in accordance with the terms of the Notes.


 


B.           To
induce the Buyers to consummate the transactions contemplated by the Securities Purchase Agreement, the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “1933 Act”), and applicable state securities laws.


 


AGREEMENT


 


NOW, THEREFORE,
in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and each of the Buyers hereby agree as follows:


 


1.           Definitions.


 


Capitalized terms used
herein and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement. As used
in this Agreement, the following terms shall have the following meanings:


 


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


 


(b)          “Closing
Date” shall have the meaning set forth in the Securities Purchase Agreement.


 


(c)          “Effective
Date” means the date that the applicable Registration Statement has been declared effective by the SEC.


 




     


     


    

 


(d)          “Effectiveness
Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a),
the earlier of the (A) 60th calendar day after the Closing Date (or the 90th calendar day after the Closing Date in
the event that such Registration Statement is subject to a limited or full review by the SEC) and (B) fourth Business Day after
the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will
not be reviewed or will not be subject to further review and (ii) with respect to any additional Registration Statements that may
be required to be filed by the Company pursuant to this Agreement, the earlier of the (A) 60th calendar day following
the date on which the Company was required to file such additional Registration Statement (or the 90th calendar day following the
date on which the Company was required to file such additional Registration Statement in the event that such additional Registration
Statement is subject to a limited or full review by the SEC) and (B) fourth Business Day after the date the Company is notified
(orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewed or will not be subject
to further review.


 


(e)          “Filing
Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a),
the 30th calendar day after the Closing Date and (ii) with respect to any additional Registration Statements that
may be required to be filed by the Company pursuant to this Agreement, the date on which the Company was required to file such
additional Registration Statement pursuant to the terms of this Agreement.


 


(f)           “Investor”
means a Buyer or any transferee or assignee of any Registrable Securities, Notes to whom a Buyer assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9 and any transferee
or assignee thereof to whom a transferee or assignee of any Registrable Securities, Notes assigns its rights under this Agreement
and who agrees to become bound by the provisions of this Agreement in accordance with Section 9.


 


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


 


(h)          “register,”
“registered,” and “registration” refer to a registration effected by preparing and filing
one or more Registration Statements in compliance with the 1933 Act and pursuant to Rule 415 and the declaration of effectiveness
of such Registration Statement(s) by the SEC.


 


(i)          “Registrable
Securities” means (i) the Conversion Shares, and (ii) any capital stock of the Company issued or issuable with respect
to the Conversion Shares, or the Notes, including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise and (2) shares of capital stock of the Company into which the shares of Common Stock (as
defined in the Notes) are converted or exchanged and shares of capital stock of a Successor Entity (as defined in the Notes) into
which the shares of Common Stock are converted or exchanged, in each case, without regard to any limitations on conversion of the
Notes; provided however, that all such securities shall cease to be Registrable Securities at such time as they have been resold
under a Registration Statement or pursuant to Rule 144 promulgated under the 1933 Act.


 


(j)          “Registration
Statement” means a registration statement or registration statements of the Company filed under the 1933 Act covering
Registrable Securities.


 




    	 	2	 



     


    

 


(k)          “Required
Holders” means, as of any given time, the holders of a majority of the Registrable Securities as of such time (excluding
any Registrable Securities held by the Company or any of its Subsidiaries as of such time); provided, that such majority must include
Alto (as defined in the Securities Purchase Agreement), so long as Alto beneficially owns at least $500,000 in aggregate principal
amount of Notes.


 


(l)          “Required
Registration Amount” means, as of any date of determination, 300% of the maximum number of Conversion Shares issuable
upon conversion of the Notes (assuming for purposes hereof that (x) the Notes are convertible at the Alternate Conversion Price
(as defined in the Notes) assuming an Alternate Conversion Date (as defined in the Note) as of such date of determination, (y)
interest on the Notes shall accrue through the second anniversary of the Closing Date and will be converted in shares of Common
Stock at the Alternate Conversion Price assuming an Alternate Conversion Date as of such date of determination and (z) any such
conversion shall not take into account any limitations on the conversion of the Notes set forth in the Notes), all subject to adjustment
as provided in Section 2(d) and/or Section 2(f).


 


(m)          “Rule
144” means Rule 144 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any
other similar or successor rule or regulation of the SEC that may at any time permit the Investors to sell securities of the Company
to the public without registration.


 


(n)          “Rule
415” means Rule 415 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any
other similar or successor rule or regulation of the SEC providing for offering securities on a continuous or delayed basis.


 


(o)          “SEC”
means the United States Securities and Exchange Commission or any successor thereto.


 


2.           Registration.


 


(a)          Mandatory
Registration. The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with
the SEC an initial Registration Statement on Form S-1 covering the resale of all of the Registrable Securities, provided that such
initial Registration Statement shall register for resale at least the number of shares of Common Stock equal to the Required Registration
Amount as of the date such Registration Statement is initially filed with the SEC (the “Initial Filing Date”).
Such initial Registration Statement, and each other Registration Statement required to be filed pursuant to the terms of this Agreement,
shall contain (except if otherwise directed by the Required Holders) the “Selling Stockholders” and “Plan
of Distribution” sections in substantially the form attached hereto as Exhibit B. The Company shall use its reasonable
best efforts to have such initial Registration Statement, and each other Registration Statement required to be filed pursuant to
the terms of this Agreement, declared effective by the SEC as soon as practicable, but in no event later than the applicable Effectiveness
Deadline for such Registration Statement.


 


(b)          Legal
Counsel. Subject to Section 5 hereof, Kelley Drye & Warren LLP, counsel solely to the lead investor (“Legal
Counsel”) shall review and oversee any registration, solely on behalf of the lead investor, pursuant to this Section 2.


 




    	 	3	 



     


    

 


(c)          Ineligibility
to Use Form S-3. In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder,
the Company shall (i) register the resale of the Registrable Securities on Form S-1 or another appropriate form and (ii) undertake
to register the resale of the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company
shall maintain the effectiveness of all Registration Statements then in effect until such time as a Registration Statement on Form
S-3 covering the resale of all the Registrable Securities has been declared effective by the SEC and the prospectus contained therein
is available for use.


 


(d)          Sufficient
Number of Shares Registered. In the event the number of shares available under any Registration Statement is insufficient to
cover all of the Registrable Securities required to be covered by such Registration Statement or an Investor’s allocated
portion of the Registrable Securities pursuant to Section 2(h), the Company shall amend such Registration Statement (if permissible),
or file with the SEC a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover
at least the Required Registration Amount as of the Trading Day immediately preceding the date of the filing of such amendment
or new Registration Statement, in each case, as soon as practicable, but in any event not later than fifteen (15) days after the
necessity therefor arises (but taking account of any Staff position with respect to the date on which the Staff will permit such
amendment to the Registration Statement and/or such new Registration Statement (as the case may be) to be filed with the SEC).
The Company shall use its reasonable best efforts to cause such amendment to such Registration Statement and/or such new Registration
Statement (as the case may be) to become effective as soon as practicable following the filing thereof with the SEC, but in no
event later than the applicable Effectiveness Deadline for such Registration Statement. For purposes of the foregoing provision,
the number of shares available under a Registration Statement shall be deemed “insufficient to cover all of the Registrable
Securities” if at any time the number of shares of Common Stock available for resale under the applicable Registration Statement
is less than the product determined by multiplying (i) the Required Registration Amount as of such time by (ii) 0.90. The calculation
set forth in the foregoing sentence shall be made without regard to any limitations on conversion, amortization and/or redemption
of the Notes (and such calculation shall assume (A) that the Notes are then convertible in full into shares of Common Stock at
the then prevailing Conversion Rate (as defined in the Notes), and (B) the initial outstanding principal amount of the Notes remains
outstanding through the scheduled Maturity Date (as defined in the Notes) and no redemptions of the Notes occur prior to the scheduled
Maturity Date.


 




    	 	4	 



     


    

 


(e)          Effect
of Failure to File and Obtain and Maintain Effectiveness of any Registration Statement. If (i) a Registration Statement covering
the resale of all of the Registrable Securities required to be covered thereby (after any reduction pursuant to Section 2(f))
and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadline
for such Registration Statement (a “Filing Failure”) (it being understood that if the Company files a Registration
Statement without affording each Investor and Legal Counsel the opportunity to review and comment on the same as required by Section 3(c)
hereof, the Company shall be deemed to not have satisfied this clause (i)(A) and such event shall be deemed to be a Filing
Failure) or (B) not declared effective by the SEC on or before the Effectiveness Deadline for such Registration Statement (an “Effectiveness
Failure”) (it being understood that if on the Business Day immediately following the Effective Date for such Registration
Statement the Company shall not have filed a “final” prospectus for such Registration Statement with the SEC under
Rule 424(b) in accordance with Section 3(b) (whether or not such a prospectus is technically required by such rule), the Company
shall be deemed to not have satisfied this clause (i)(B) and such event shall be deemed to be an Effectiveness Failure), (ii) other
than during an Allowable Grace Period (as defined below), on any day after the Effective Date of a Registration Statement sales
of all of the Registrable Securities required to be included on such Registration Statement (after any reduction pursuant to Section 2(f))
cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration
Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration
Statement, a suspension or delisting of (or a failure to timely list) the shares of Common Stock on an Eligible Market (as defined
in the Securities Purchase Agreement), a failure to register a sufficient number of shares of Common Stock or by reason of a stop
order) or the prospectus contained therein is not available for use for any reason (a “Maintenance Failure”),
or (iii) a Registration Statement is not effective for any reason or the prospectus contained therein is not available for use
for any reason, and either (x) the Company fails for any reason to satisfy the requirements of Rule 144(c)(1), including, without
limitation, the failure to satisfy the current public information requirement under Rule 144(c) or (y) the Company has ever been
an issuer described in Rule 144(i)(1)(i) or becomes such an issuer in the future, and the Company shall fail to satisfy any condition
set forth in Rule 144(i)(2) (a “Current Public Information Failure”) as a result of which any of the Investors
are unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions),
then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the
underlying shares of Common Stock (which remedy shall not be exclusive of any other remedies available at law or in equity, including,
without limitation, specific performance), the Company shall pay to each holder of Registrable Securities relating to such Registration
Statement an amount in cash equal to two percent (2%) of such Investor’s remaining principal amount stated in such Investor’s
Note on the Closing Date on every thirty (30) day anniversary of (I) a Filing Failure until such Filing Failure is cured; (II)
an Effectiveness Failure until such Effectiveness Failure is cured; (III) a Maintenance Failure until such Maintenance Failure
is cured; and (IV) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure
is cured and (ii) such time that such public information is no longer required pursuant to Rule 144 (in each case, pro rated
for periods totaling less than thirty (30) days). The payments to which a holder of Registrable Securities shall be entitled pursuant
to this Section 2(e) are referred to herein as “Registration Delay Payments.” Following the initial Registration
Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above),
without limiting the foregoing, if an event or failure giving rise to the Registration Delay Payments is cured prior to any thirty
(30) day anniversary of such event or failure, then such Registration Delay Payment shall be made on the third (3rd)
Business Day after such cure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance
with the foregoing, such Registration Delay Payments shall bear interest at the rate of two percent (2%) per month (prorated for
partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to an Investor
with respect to any period during which all of such Investor’s Registrable Securities may be sold by such Investor without
restriction under Rule 144 (including, without limitation, volume restrictions) and without the need for current public information
required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable).


 




    	 	5	 



     


    

 


(f)          Offering.
Notwithstanding anything to the contrary contained in this Agreement, in the event the staff of the SEC (the “Staff”)
or the SEC seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting
an offering of securities by, or on behalf of, the Company, or in any other manner, such that the Staff or the SEC
do not permit such Registration Statement to become effective and used for resales in a manner that does not constitute such
an offering and that permits the continuous resale at the market by the Investors participating therein (or as otherwise
may be acceptable to each Investor) without being named therein as an “underwriter,” then the Company shall reduce
the number of shares to be included in such Registration Statement by all Investors until such time as the Staff and the SEC
shall so permit such Registration Statement to become effective as aforesaid. In making such reduction, the Company shall reduce
the number of shares to be included by all Investors on a pro rata basis (based upon the number of Registrable Securities otherwise
required to be included for each Investor) unless the inclusion of shares by a particular Investor or a particular set of Investors
are resulting in the Staff or the SEC’s “by or on behalf of the Company” offering position, in which event the
shares held by such Investor or set of Investors shall be the only shares subject to reduction (and if by a set of Investors on
a pro rata basis by such Investors or on such other basis as would result in the exclusion of the least number of shares by all
such Investors); provided, that, with respect to such pro rata portion allocated to any Investor, such Investor may elect the allocation
of such pro rata portion among the Registrable Securities of such Investor. In addition, in the event that the Staff or the SEC
requires any Investor seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be
specifically identified as an ”underwriter” in order to permit such Registration Statement to become effective,
and such Investor does not consent to being so named as an underwriter in such Registration Statement, then, in each such
case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Investor, until
such time as the Staff or the SEC does not require such identification or until such Investor accepts such identification and the
manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued
pursuant to the Securities Purchase Agreement. In the event of any reduction in Registrable Securities pursuant to this
paragraph, an affected Investor shall have the right to require, upon delivery of a written request to the Company signed
by such Investor, the Company to file a registration statement within twenty (20) days of such request (subject to any restrictions
imposed by Rule 415 or required by the Staff or the SEC) for resale by such Investor in a manner acceptable to such Investor,
and the Company shall following such request cause to be and keep effective such registration statement in the same manner
as otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i)
all Registrable Securities held by such Investor have been registered and sold pursuant to an effective Registration Statement
in a manner acceptable to such Investor or (ii) all Registrable Securities may be resold by such Investor without restriction
(including, without limitation, volume limitations) pursuant to Rule 144 (taking account of any Staff position with respect to
“affiliate” status) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2),
if applicable) or (iii) such Investor agrees to be named as an underwriter in any such Registration Statement in a manner acceptable
to such Investor as to all Registrable Securities held by such Investor and that have not theretofore been included in a Registration
Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by an Investor
multiple times and with respect to limited amounts of Registrable Securities in order to permit the resale thereof by such Investor
as contemplated above).


 




    	 	6	 



     


    

 


(g)          Piggyback
Registrations. Without limiting any obligation of the Company hereunder or under the Securities Purchase Agreement, if there
is not an effective Registration Statement covering all of the Registrable Securities or the prospectus contained therein is not
available for use and the Company shall determine to prepare and file with the SEC a registration statement relating to an offering
for its own account or the account of others under the 1933 Act of any of its equity securities (other than on Form S-4 or Form
S-8 (each as promulgated under the 1933 Act) or their then equivalents relating to equity securities to be issued solely in connection
with any acquisition of any entity or business or equity securities issuable in connection with the Company’s stock option
or other employee benefit plans), then the Company shall deliver to each Investor a written notice of such determination and, if
within fifteen (15) days after the date of the delivery of such notice, any such Investor shall so request in writing, the
Company shall include in such registration statement all or any part of such Registrable Securities such Investor requests to be
registered; provided, however, the Company shall not be required to register any Registrable Securities pursuant to this Section 2(g)
that are eligible for resale pursuant to Rule 144 without restriction (including, without limitation, volume restrictions) and
without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or that are
the subject of a then-effective Registration Statement.


 


(h)          Allocation
of Registrable Securities. The initial number of Registrable Securities included in any Registration Statement and any increase
in the number of Registrable Securities included therein shall be allocated pro rata among the Investors based on the number of
Registrable Securities held by each Investor at the time such Registration Statement covering such initial number of Registrable
Securities or increase thereof is declared effective by the SEC. In the event that an Investor sells or otherwise transfers any
of such Investor’s Registrable Securities, each transferee or assignee (as the case may be) that becomes an Investor shall
be allocated a pro rata portion of the then-remaining number of Registrable Securities included in such Registration Statement
for such transferor or assignee (as the case may be). Any shares of Common Stock included in a Registration Statement and which
remain allocated to any Person which ceases to hold any Registrable Securities covered by such Registration Statement shall be
allocated to the remaining Investors, pro rata based on the number of Registrable Securities then held by such Investors which
are covered by such Registration Statement.


 


(i)          No
Inclusion of Other Securities. The Company shall in no event include any securities other than Registrable Securities on any
Registration Statement filed in accordance herewith without the prior written consent of the Required Holders. Until the Applicable
Date (as defined in the Securities Purchase Agreement), the Company shall not enter into any agreement providing any registration
rights to any of its security holders, except as otherwise permitted under the Securities Purchase Agreement.


 


3.           Related
Obligations.


 


The Company shall use
its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of
disposition thereof, and, pursuant thereto, the Company shall have the following obligations:


 




    	 	7	 



     


    

 


(a)          The
Company shall promptly prepare and file with the SEC a Registration Statement with respect to all the Registrable Securities (but
in no event later than the applicable Filing Deadline) and use its reasonable best efforts to cause such Registration Statement
to become effective as soon as practicable after such filing (but in no event later than the Effectiveness Deadline). Subject to
Allowable Grace Periods, the Company shall keep each Registration Statement effective (and the prospectus contained therein available
for use) pursuant to Rule 415 for resales by the Investors on a delayed or continuous basis at then-prevailing market prices (and
not fixed prices) at all times until the earlier of (i) the date as of which all of the Investors may sell all of the Registrable
Securities required to be covered by such Registration Statement (disregarding any reduction pursuant to Section 2(f)) without
restriction pursuant to Rule 144 (including, without limitation, volume restrictions) and without the need for current public information
required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (ii) the date on which the Investors shall have sold all of the
Registrable Securities covered by such Registration Statement (the “Registration Period”). Notwithstanding anything
to the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration
Statement (including, without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation,
all amendments and supplements thereto) used in connection with such Registration Statement (1) shall not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein
(in the case of prospectuses, in the light of the circumstances in which they were made) not misleading and (2) will disclose (whether
directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding
the Company and its securities. The Company shall submit to the SEC, within two (2) Business Days after the later of the date that
(i) the Company learns that no review of a particular Registration Statement will be made by the Staff or that the Staff has no
further comments on a particular Registration Statement (as the case may be) and (ii) the consent of Legal Counsel is obtained
pursuant to Section 3(c) (which consent shall be promptly sought), a request for acceleration of effectiveness of such Registration
Statement to a time and date not later than two (2) Business Days hours after the submission of such request or as soon thereafter
as the Staff determines is practicable. The Company shall respond in writing to comments made by the SEC in respect of a Registration
Statement as soon as practicable, but in no event later than fifteen (15) days after the receipt of comments by or notice from
the SEC that an amendment is required in order for a Registration Statement to be declared effective.


 


(b)          Subject
to Section 3(r) of this Agreement, the Company shall prepare and file with the SEC such amendments (including, without limitation,
post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each such
Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary
to keep each such Registration Statement effective at all times during the Registration Period for such Registration Statement,
and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities
of the Company required to be covered by such Registration Statement until such time as all of such Registrable Securities shall
have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such
Registration Statement; provided, however, by 8:30 a.m. (New York time) on the Business Day immediately following each Effective
Date, the Company shall file with the SEC in accordance with Rule 424(b) under the 1933 Act the final prospectus to be used in
connection with sales pursuant to the applicable Registration Statement (whether or not such a prospectus is technically required
by such rule). In the case of amendments and supplements to any Registration Statement which are required to be filed pursuant
to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company filing a report
on Form 8-K, Form 10-Q or Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934
Act”), the Company shall, if permitted under the applicable rules and regulations of the SEC, have incorporated such
report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC
on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such
Registration Statement.


 




    	 	8	 



     


    

 


(c)          The
Company shall (A) permit Legal Counsel and legal counsel for each other Investor to review and comment upon (i) each Registration
Statement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to each Registration
Statement (including, without limitation, the prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports) within a reasonable number of days prior
to their filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which
Legal Counsel or any legal counsel for any other Investor reasonably objects. The Company shall not submit a request for acceleration
of the effectiveness of a Registration Statement or any amendment or supplement thereto or to any prospectus contained therein
without the prior consent of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall promptly furnish
to Legal Counsel and legal counsel for each other Investor, without charge, if requested by such Legal Counsel or legal counsel
for each other Investor(i) copies of any correspondence from the SEC or the Staff to the Company or its representatives relating
to each Registration Statement, provided that such correspondence shall not contain any material, non-public information regarding
the Company or any of its Subsidiaries (as defined in the Securities Purchase Agreement), (ii) after the same is prepared
and filed with the SEC, one (1) copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including,
without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor,
and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel
and legal counsel for each other Investor in performing the Company’s obligations pursuant to this Section 3.


 


(d)          The
Company shall promptly furnish to each Investor whose Registrable Securities are included in any Registration Statement, without
charge, (i) after the same is prepared and filed with the SEC, at least one (1) copy of each Registration Statement and any amendment(s)
and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein
by reference, if requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of each Registration
Statement, ten (10) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto
(or such other number of copies as such Investor may reasonably request from time to time) and (iii) such other documents, including,
without limitation, copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in
order to facilitate the disposition of the Registrable Securities owned by such Investor.


 




    	 	9	 



     


    

 


(e)          The
Company shall use its reasonable best efforts to (i) register and qualify, unless an exemption from registration and qualification
applies, the resale by Investors of the Registrable Securities covered by a Registration Statement under such other securities
or “blue sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions,
such amendments (including, without limitation, post-effective amendments) and supplements to such registrations and qualifications
as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may
be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general
taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall
promptly notify Legal Counsel, legal counsel for each other Investor and each Investor who holds Registrable Securities of the
receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt
of actual notice of the initiation or threatening of any proceeding for such purpose.


 


(f)          The
Company shall notify Legal Counsel, legal counsel for each other Investor and each Investor in writing of the happening of any
event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration
Statement, as then in effect, may include an untrue statement of a material fact or omission to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading (provided that in no event shall such notice contain any material, non-public information regarding the Company
or any of its Subsidiaries), and, subject to Section 3(r), promptly prepare a supplement or amendment to such Registration
Statement and such prospectus contained therein to correct such untrue statement or omission and deliver ten (10) copies of such
supplement or amendment to Legal Counsel, legal counsel for each other Investor and each Investor (or such other number of copies
as Legal Counsel, legal counsel for each other Investor or such Investor may reasonably request) if requested by such persons.
The Company shall also promptly notify Legal Counsel, legal counsel for each other Investor and each Investor in writing (i) when
a prospectus or any prospectus supplement or post-effective amendment has been filed, when a Registration Statement or any post-effective
amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel, legal counsel for each
other Investor and each Investor by facsimile or e-mail on the same day of such effectiveness and by overnight mail), and when
the Company receives written notice from the SEC that a Registration Statement or any post-effective amendment will be reviewed
by the SEC, (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related
information, (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement
would be appropriate; and (iv) of the receipt of any request by the SEC or any other federal or state governmental authority for
any additional information relating to the Registration Statement or any amendment or supplement thereto or any related prospectus.
The Company shall respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statement
or any amendment thereto (it being understood and agreed that the Company’s response to any such comments shall be delivered
to the SEC no later than fifteen (15) Business Days after the receipt thereof).


 




    	 	10	 



     


    

 


(g)          The
Company shall (i) use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness
of each Registration Statement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss
of an exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and (ii) notify Legal
Counsel, legal counsel for each other Investor and each Investor who holds Registrable Securities of the issuance of such order
and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.


 


(h)          If
any Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and
such Investor consents to so being named an underwriter, at the request of any Investor, the Company shall furnish to such Investor,
on the date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as an Investor may
reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and
substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering,
addressed to the Investors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the
Investors.


 


(i)          If
any Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and
such Investor consents to so being named an underwriter, upon the written request of such Investor, the Company shall make available
for inspection by (i) such Investor, (ii) legal counsel for such Investor and (iii) one (1) firm of accountants or other agents
retained by such Investor (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent
corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed
necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any
Inspector may reasonably request; provided, however, each Inspector shall agree in writing to hold in strict confidence and not
to make any disclosure (except to such Investor) or use of any Record or other information which the Company’s board of directors
determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (1) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required
under the 1933 Act, (2) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court
or government body of competent jurisdiction, or (3) the information in such Records has been made generally available to the public
other than by disclosure in violation of this Agreement or any other Transaction Document (as defined in the Securities Purchase
Agreement). Such Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential.
Nothing herein (or in any other confidentiality agreement between the Company and such Investor, if any) shall be deemed to limit
any Investor’s ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and
regulations.


 




    	 	11	 



     


    

 


(j)          The
Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be disclosed
in such Registration Statement pursuant to the 1933 Act, (iii) the release of such information is ordered pursuant to a subpoena
or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has
been made generally available to the public other than by disclosure in violation of this Agreement or any other Transaction Document.
The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a
court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow
such Investor, at such Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.


 


(k)          Without
limiting any obligation of the Company under the Securities Purchase Agreement, the Company shall use its reasonable best efforts
either to (i) cause all of the Registrable Securities covered by each Registration Statement to be listed on each securities exchange
on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, (ii) secure designation and quotation of all of the Registrable
Securities covered by each Registration Statement on an Eligible Market (as defined in the Securities Purchase Agreement), or (iii)
if, despite the Company’s reasonable best efforts to satisfy the preceding clauses (i) or (ii) the Company is unsuccessful
in satisfying the preceding clauses (i) or (ii), without limiting the generality of the foregoing, to use its reasonable best efforts
to arrange for at least two market makers to register with the Financial Industry Regulatory Authority (“FINRA”)
as such with respect to such Registrable Securities. In addition, the Company shall cooperate with each Investor and any broker
or dealer through which any such Investor proposes to sell its Registrable Securities in effecting a filing with FINRA pursuant
to FINRA Rule 5110 as requested by such Investor. The Company shall pay all of the Company’s fees and expenses in connection
with satisfying its obligations under this Section 3(k), except for any fees, expenses or commissions of any broker or dealer.


 


(l)          The
Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate
the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities
to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts (as the
case may be) as the Investors may reasonably request from time to time and registered in such names as the Investors may request.


 




    	 	12	 



     


    

 


(m)          If
requested by an Investor, the Company shall as soon as practicable after receipt of notice from such Investor and subject to Section 3(r)
hereof, (i) incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests
to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus
supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment; and (iii) supplement or make amendments to any Registration Statement or prospectus contained therein
if reasonably requested by an Investor holding any Registrable Securities.


 


(n)          The
Company shall use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable
Securities.


 


(o)          The
Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after
the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions
of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company’s
fiscal quarter next following the applicable Effective Date of each Registration Statement.


 


(p)          The
Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection
with any registration hereunder.


 


(q)          Within
two (2) Business Day after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Company
shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities
(with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A.


 




    	 	13	 



     


    

 


(r)          Notwithstanding
anything to the contrary herein (but subject to the last sentence of this Section 3(r)), at any time after the Effective Date
of a particular Registration Statement, the Company may delay the disclosure of material, non-public information concerning the
Company or any of its Subsidiaries the disclosure of which at the time is not, in the good faith opinion of the board of directors
of the Company, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace
Period”), provided that the Company shall promptly notify the Investors in writing of the (i) existence of material,
non-public information giving rise to a Grace Period (provided that in each such notice the Company shall not disclose the content
of such material, non-public information to any of the Investors) and the date on which such Grace Period will begin and (ii) date
on which such Grace Period ends, provided further that (I) no Grace Period shall exceed ten (10) consecutive days and during any
three hundred sixty five (365) day period all such Grace Periods shall not exceed an aggregate of thirty (30) days, (II) the first
day of any Grace Period must be at least five (5) Trading Days after the last day of any prior Grace Period and (III) no Grace
Period may exist during the sixty (60) Trading Day period immediately following the Effective Date of such Registration Statement
(provided that such sixty (60) Trading Day period shall be extended by the number of Trading Days during such period and any extension
thereof contemplated by this proviso during which such Registration Statement is not effective or the prospectus contained therein
is not available for use) (each, an “Allowable Grace Period”). For purposes of determining the length of a Grace
Period above, such Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i)
above and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) above and
the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any
Allowable Grace Period. Upon expiration of each Grace Period, the Company shall again be bound by the first sentence of Section 3(f)
with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding
anything to the contrary contained in this Section 3(r), the Company shall cause its transfer agent to deliver unlegended
shares of Common Stock to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection
with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale, and delivered
a copy of the prospectus included as part of the particular Registration Statement to the extent applicable, prior to such Investor’s
receipt of the notice of a Grace Period and for which the Investor has not yet settled.


 


(s)          The
Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investors of its Registrable
Securities pursuant to each Registration Statement.


 


(t)          Neither
the Company nor any Subsidiary or affiliate thereof shall identify any Investor as an underwriter in any public disclosure or filing
with the SEC, the Principal Market or any Eligible Market and any Buyer being deemed an underwriter by the SEC shall not relieve
the Company of any obligations it has under this Agreement or any other Transaction Document (as defined in the Securities Purchase
Agreement); provided, however, that the foregoing shall not prohibit the Company from including the disclosure found in the "Plan
of Distribution" section attached hereto as Exhibit B in the Registration Statement.


 


(u)          Neither
the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on
or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing
the rights granted to the Buyers in this Agreement or otherwise conflicts with the provisions hereof.


 


4.           Obligations
of the Investors.


 


(a)          At
least five (5) Business Days prior to the first anticipated filing date of each Registration Statement, the Company shall notify
each Investor in writing of the information the Company requires from each such Investor with respect to such Registration Statement.
It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with
respect to the Registrable Securities of a particular Investor that such Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held
by it, as shall be reasonably required to effect and maintain the effectiveness of the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the Company may reasonably request.


 




    	 	14	 



     


    

 


(b)          Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of each Registration Statement hereunder, unless such Investor
has notified the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities
from such Registration Statement.


 


(c)          Each
Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(g)
or the first sentence of 3(f), such Investor will immediately discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until such Investor’s receipt of the copies of the supplemented
or amended prospectus contemplated by Section 3(g) or the first sentence of Section 3(f) or receipt of notice that no
supplement or amendment is required. Notwithstanding anything to the contrary in this Section 4(c), the Company shall cause
its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the terms of
the Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which such Investor has
entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event
of the kind described in Section 3(g) or the first sentence of Section 3(f) and for which such Investor has not yet settled.


 


(d)          Each
Investor covenants and agrees that it will comply with the prospectus delivery requirements of the 1933 Act as applicable to it
or an exemption therefrom in connection with sales of Registrable Securities pursuant to a Registration Statement.


 


5.           Expenses
of Registration.


 


All reasonable expenses,
other than underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant
to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting
fees, FINRA filing fees (if any) and fees and disbursements of counsel for the Company shall be paid by the Company. The Company
shall reimburse Legal Counsel for its fees and disbursements in connection with registration, filing or qualification pursuant
to Sections 2 and 3 of this Agreement which amount shall be limited to $5,000 for each such registration, filing or qualification


 


6.           Indemnification.


 


If any Registrable Securities
are included in a Registration Statement pursuant to his Agreement that is declared effective by the SEC:


 




    	 	15	 



     


    

 


(a)          To
the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor and each
of its directors, officers, shareholders, members, partners, employees, agents, advisors, representatives (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title)
and each Person, if any, who controls such Investor within the meaning of the 1933 Act or the 1934 Act and each of the directors,
officers, shareholders, members, partners, employees, agents, advisors, representatives (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling
Persons (each, an “Indemnified Person”), against any losses, obligations, claims, damages, liabilities, contingencies,
judgments, fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’ fees and costs
of defense and investigation), amounts paid in settlement or expenses, joint or several, (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from
the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending
or threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified Damages”), to
which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration
Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under
the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue
Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained
in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the
SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light
of the circumstances under which the statements therein were made, not misleading or (iii) any violation or alleged violation by
the Company of the 1933 Act, the 1934 Act, any other law, including, without limitation, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv)
any voliation of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”).
Subject to Section 6(c), the Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are
due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending
any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a):
(i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon
and in conformity with information furnished in writing to the Company by such Indemnified Person for such Indemnified Person expressly
for use in connection with the preparation of such Registration Statement or any such amendment thereof or supplement thereto,
if such prospectus was timely made available by the Company pursuant to Section 3(d); and (ii) shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made
by or on behalf of the Indemnified Person and shall survive the transfer of any of the Registrable Securities by any of the Investors
pursuant to Section 9.


 




    	 	16	 



     


    

 


(b)          In
connection with any Registration Statement in which an Investor is participating, such Investor agrees to severally and not jointly
indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company,
each of its directors, each of its officers who signs the Registration Statement and each Person, if any, who controls the Company
within the meaning of the 1933 Act or the 1934 Act (each, an “Indemnified Party”), against any Claim or Indemnified
Damages to which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified
Damages arise out of or are based upon any Violation, in each case, to the extent, and only to the extent, that such Violation
occurs in reliance upon and in conformity with written information furnished to the Company by such Investor expressly for use
in connection with such Registration Statement; and, subject to Section 6(c) and the below provisos in this Section 6(b),
such Investor will reimburse an Indemnified Party any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such Claim; provided, however, the indemnity agreement contained in this Section 6(b)
and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably
withheld or delayed, provided further that such Investor shall be liable under this Section 6(b) for only that amount of a
Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the applicable sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer of any of the Registrable Securities by any of the
Investors pursuant to Section 9.


 


(c)          Promptly
after receipt by an Indemnified Person or Indemnified Party (as the case may be) under this Section 6 of notice of the commencement
of any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Indemnified
Person or Indemnified Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party
under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying
party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person or the Indemnified Party (as the case may be); provided, however, an Indemnified Person or Indemnified
Party (as the case may be) shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid
by the indemnifying party if: (i) the indemnifying party has agreed in writing to pay such fees and expenses; (ii) the indemnifying
party shall have failed promptly to assume the defense of such Claim and to employ counsel reasonably satisfactory to such Indemnified
Person or Indemnified Party (as the case may be) in any such Claim; or (iii) the named parties to any such Claim (including, without
limitation, any impleaded parties) include both such Indemnified Person or Indemnified Party (as the case may be) and the indemnifying
party, and such Indemnified Person or such Indemnified Party (as the case may be) shall have been advised by counsel that a conflict
of interest is likely to exist if the same counsel were to represent such Indemnified Person or such Indemnified Party and the
indemnifying party (in which case, if such Indemnified Person or such Indemnified Party (as the case may be) notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then the indemnifying party
shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party, provided
further that in the case of clause (iii) above the indemnifying party shall not be responsible for the reasonable fees and expenses
of more than one (1) separate legal counsel for such Indemnified Person or Indemnified Party (as the case may be). The Indemnified
Party or Indemnified Person (as the case may be) shall reasonably cooperate with the indemnifying party in connection with any
negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person (as the case may be) which relates to such action or Claim.
The indemnifying party shall keep the Indemnified Party or Indemnified Person (as the case may be) reasonably apprised at all times
as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for
any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, the indemnifying
party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent
of the Indemnified Party or Indemnified Person (as the case may be), consent to entry of any judgment or enter into any settlement
or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified
Party or Indemnified Person (as the case may be) of a release from all liability in respect to such Claim or litigation, and such
settlement shall not include any admission as to fault on the part of the Indemnified Party. Following indemnification as provided
for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person (as the
case may be) with respect to all third parties, firms or corporations relating to the matter for which indemnification has been
made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party (as the case may
be) under this Section 6, except to the extent that the indemnifying party is materially and adversely prejudiced in its ability
to defend such action.


 




    	 	17	 



     


    

 


(d)          The
indemnification required by this Section 6 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 Indemnified Damages are incurred.


 


(e)          The
indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the
Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party
may be subject to pursuant to the law.


 


7.           Contribution.


 


To the extent any indemnification
by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however:
(i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the
fault standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which
Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such
sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount
of net proceeds received by such seller from the applicable sale of such Registrable Securities pursuant to such Registration Statement.
Notwithstanding the provisions of this Section 7, no Investor shall be required to contribute, in the aggregate, any amount
in excess of the amount by which the net proceeds actually received by such Investor from the applicable sale of the Registrable
Securities subject to the Claim exceeds the amount of any damages that such Investor has otherwise been required to pay, or would
otherwise be required to pay under Section 6(b), by reason of such untrue or alleged untrue statement or omission or alleged
omission.


 




    	 	18	 



     


    

 


8.           Reports
Under the 1934 Act.


 


With a view to making
available to the Investors the benefits of Rule 144, the Company agrees to:


 


(a)          make
and keep public information available, as those terms are understood and defined in Rule 144;


 


(b)          file
with the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so
long as the Company remains subject to such requirements (it being understood and agreed that nothing herein shall limit any obligations
of the Company under the Securities Purchase Agreement) and the filing of such reports and other documents is required for the
applicable provisions of Rule 144; and


 


(c)          furnish
to each Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company,
if true, that it has complied with the reporting, submission and posting requirements of Rule 144, the 1933 Act and the 1934 Act,
(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company
with the SEC if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonably requested
to permit the Investors to sell such securities pursuant to Rule 144 without registration.


 


9.           Assignment
of Registration Rights.


 


All or any portion
of the rights under this Agreement shall be automatically assignable by each Investor to any transferee or assignee (as the case
may be) of all or any portion of such Investor’s Registrable Securities or Notes if: (i) such Investor agrees in writing
with such transferee or assignee (as the case may be) to assign all or any portion of such rights, and a copy of such agreement
is furnished to the Company within a reasonable time after such transfer or assignment (as the case may be); (ii) the Company is,
within a reasonable time after such transfer or assignment (as the case may be), furnished with written notice of (a) the name
and address of such transferee or assignee (as the case may be), and (b) the securities with respect to which such registration
rights are being transferred or assigned (as the case may be); (iii) immediately following such transfer or assignment (as
the case may be) the further disposition of such securities by such transferee or assignee (as the case may be) is restricted under
the 1933 Act or applicable state securities laws if so required; (iv) at or before the time the Company receives the written notice
contemplated by clause (ii) of this sentence such transferee or assignee (as the case may be) agrees in writing with the Company
to be bound by all of the provisions contained herein; (v) such transfer or assignment (as the case may be) shall have been made
in accordance with the applicable requirements of the Securities Purchase Agreement and the Notes (as the case may be); and (vi)
such transfer or assignment (as the case may be) shall have been conducted in accordance with all applicable federal and state
securities laws.


 




    	 	19	 



     


    

 


10.          Amendment
of Registration Rights.


 


Provisions of this
Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Company and the Required Holders; provided that any such amendment or waiver
that complies with the foregoing, but that disproportionately, materially and adversely affects the rights and obligations of any
Investor relative to the comparable rights and obligations of the other Investors shall require the prior written consent of such
adversely affected Investor. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each Investor
and the Company, provided that no such amendment shall be effective to the extent that it (1) applies to less than all of the holders
of Registrable Securities or (2) imposes any obligation or liability on any Investor without such Investor’s prior written
consent (which may be granted or withheld in such Investor’s sole discretion). No waiver shall be effective unless it is
in writing and signed by an authorized representative of the waiving party. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration (other than the
reimbursement of legal fees) also is offered to all of the parties to this Agreement.


 


11.          Miscellaneous.


 


(a)          Solely
for purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns, or is deemed
to own, of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two
or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or
election received from such record owner of such Registrable Securities.


 


(b)          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: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent
by facsimile or electronic mail (provided confirmation of transmission is mechanically or electronically generated and kept on
file by the sending party); or (iii) one (1) Business Day after deposit with a nationally recognized overnight delivery service
with next day delivery specified, in each case, properly addressed to the party to receive the same. The addresses, facsimile numbers
and email addresses for such communications shall be:


 




    	 	20	 



     


    

  


If to the Company:


 


Rock Creek Pharmaceuticals, Inc.

2040 Whitfield Ave.

Ste. 300

Sarasota Florida 34240

Telephone: (941) 251-0497

Facsimile: (941) 251-0496

Attention: Chief Financial Officer

E-Mail: wmcmahon@rockcreekpharmaceuticals.com


 


With a copy (for informational purposes only) to:


 


Foley & Lardner LLP


100 N. Tampa Street, Suite 2700


Tampa, FL 33602


Telephone:     (813) 225-4122


Facsimile:      (813) 221-4210

Attention:       Curt P. Creely, Esq.


E-mail:            ccreely@foley.com


 


If to the Transfer Agent:


 


Wells Fargo Shareowner Services

1110 Centre Pointe Curve, Suite 101

Mendota Heights, MN 55120

Attention: Marty Knapp

Tel: (651) 450-4027

WFSSRelationshipManagement@wellsfargo.com


 


If to Legal
Counsel:


 


Kelley Drye &
Warren LLP

MetLife Building

200 Park Avenue

New York, NY 10166

Telephone: (212) 801-9200

Facsimile: (212) 805-9222

Attention: Michael A. Adelstein, Esq.

Email: madelstein@kelleydrye.com


 


If to a Buyer, to its address, facsimile
number and/or email address set forth on the Schedule of Buyers attached to the Securities Purchase Agreement, with copies to such
Buyer’s representatives as set forth on the Schedule of Buyers, or to such other address, facsimile number, and/or email
address 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, provided that Kelley Drye & Warren LLP shall only be provided
notices sent to the lead investor. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver
or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine or email containing
the time, date, recipient facsimile number or email address and an image of the first page of such transmission or (C) provided
by a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from
a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.


 




    	 	21	 



     


    

 


(c)          Failure
of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof. The Company and each Investor acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that each party hereto shall be entitled to an injunction or injunctions to prevent
or cure breaches of the provisions of this Agreement by any other party hereto and to enforce specifically the terms and provisions
hereof (without the necessity of showing economic loss and without any bond or other security being required), this being in addition
to any other remedy to which any party may be entitled by law or equity.


 


(d)          All
questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal
laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the
State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT
TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


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


 




    	 	22	 



     


    

 


(f)          This
Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced
herein and therein constitute the entire agreement among the parties hereto and thereto solely with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and
the instruments referenced herein and therein supersede all prior agreements and understandings among the parties hereto solely
with respect to the subject matter hereof and thereof; provided, however, nothing contained in this Agreement or any other Transaction
Document shall (or shall be deemed to) (i) have any effect on any agreements any Investor has entered into with the Company or
any of its Subsidiaries prior to the date hereof with respect to any prior investment made by such Investor in the Company, (ii)
waive, alter, modify or amend in any respect any obligations of the Company or any of its Subsidiaries or any rights of or benefits
to any Investor or any other Person in any agreement entered into prior to the date hereof between or among the Company and/or
any of its Subsidiaries and any Investor and all such agreements shall continue in full force and effect or (iii) limit any obligations
of the Company under any of the other Transaction Documents.


 


(g)          Subject
to compliance with Section 9 (if applicable), this Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto. This Agreement is not for the benefit of, nor may any provision hereof be
enforced by, any Person, other than the parties hereto, their respective permitted successors and assigns and the Persons referred
to in Sections 6 and 7 hereof.


 


(h)          The
headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless
the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular
and plural forms thereof. The terms “including,” “includes,” “include” and words of like import
shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,”
“hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.


 


(i)          This
Agreement may be executed in two or more identical counterparts, each of which shall be deemed an origination, but 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. In the event that any signature is delivered by facsimile transmission or by an email which contains
a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page
were an original thereof.


 




    	 	23	 



     


    

 


(j)          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.


 


(k)          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. Notwithstanding anything to the contrary set forth in Section 10, terms
used in this Agreement but defined in the other Transaction Documents shall have the meanings ascribed to such terms on the Closing
Date in such other Transaction Documents unless otherwise consented to in writing by each Investor.


 


(l)          All
consents and other determinations required to be made by the Investors pursuant to this Agreement shall be made, unless otherwise
specified in this Agreement, by the Required Holders, determined as if all of the outstanding Notes then held by the Investors
have been converted for Registrable Securities without regard to any limitations on redemption, amortization and/or conversion
of the Notes then held by Investors.


 


(m)          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.


 


(n)          The
obligations of each Investor under this Agreement and the other Transaction Documents are several and not joint with the obligations
of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor
under this Agreement or any other Transaction Document. Nothing contained herein or in any other Transaction Document, and no action
taken by any Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as, and the Company acknowledges
that the Investors do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or
create a presumption that the Investors are in any way acting in concert or as a group or entity with respect to such obligations
or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Investors are
not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions
contemplated by this Agreement or any of the other the Transaction Documents. Each Investor shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction
Documents, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such
purpose. The use of a single agreement with respect to the obligations of the Company contained herein was solely in the control
of the Company, not the action or decision of any Investor, and was done solely for the convenience of the Company and not because
it was required or requested to do so by any Investor. It is expressly understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the Company and an Investor, solely, and not between the Company and
the Investors collectively and not between and among Investors.


 




    	 	24	 



     


    

 


[signature page follows]


 




    	 	25	 



     


    

 


IN WITNESS WHEREOF, each Buyer and
the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date
first written above.


  


	 	COMPANY:
	 	 
	 	ROCK CREEK PHARMACEUTICALS, INC.
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 




     


     


    

 


IN WITNESS WHEREOF, each Buyer and
the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date
first written above.


  





	 	BUYERS:
	 	 
	 	Alto Opportunity Master Fund, SPC
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:







  




     


     


    

  


IN WITNESS WHEREOF,
each Buyer and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed
as of the date first written above.


  


	 	HUDSON BAY MASTER FUND LTD
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 




     


     


    

  


EXHIBIT A


 


FORM OF NOTICE OF EFFECTIVENESS

OF REGISTRATION STATEMENT


 


	 	 
	 	 
	 	 
	Attention: 	 	 


 


Re:    
Rock Creek Pharmaceuticals, Inc.


 


Ladies and Gentlemen:


 


[We are][I am] counsel
to Rock Creek Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and have represented the Company
in connection with that certain Securities Purchase Agreement (the “Securities Purchase Agreement”) entered
into by and among the Company and the buyers named therein (collectively, the “Holders”) pursuant to which the
Company issued to the Holders senior secured convertible notes (the “Notes”) convertible into the Company’s
shares of common stock, $0.0001 par value per share (the “Common Stock”). Pursuant to the Securities Purchase
Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the “Registration Rights
Agreement”) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined
in the Registration Rights Agreement), including the shares of Common Stock issuable upon conversion of the Notes under the Securities
Act of 1933, as amended (the “1933 Act”). In connection with the Company’s obligations under the Registration
Rights Agreement, on ____________ ___, 20__, the Company filed a Registration Statement on Form [S-1][S-3] (File No. 333-_____________)
(the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) relating
to the Registrable Securities which names each of the Holders as a selling stockholder thereunder.


 


In connection with the
foregoing, [we][I] advise you that [a member of the SEC’s staff has advised [us][me] by telephone that [the SEC has entered
an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS]]
[an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF
EFFECTIVENESS]] has been posted on the web site of the SEC at www.sec.gov] and [we][I] have no knowledge, after a review of information
posted on the website of the SEC at http://www.sec.gov/litigation/stoporders.shtml, that any stop order suspending its effectiveness
has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Registrable Securities
are available for resale under the 1933 Act pursuant to the Registration Statement.


 


This letter shall serve
as our standing opinion to you that the shares of Common Stock underlying the Notes are freely transferable by the Holders pursuant
to the Registration Statement. You need not require further letters from us to effect any future legend-free issuance or reissuance
of such shares of Common Stock to the Holders as contemplated by the Company’s Irrevocable Transfer Agent Instructions dated
_________ __, 20__.


 


	 	Very truly yours,
	 	 
	 	[ISSUER’S COUNSEL]
	 	 
	 	By:	 


 


	CC:	Alto Opportunity Master Fund, SPC
	 	Hudson Bay Master Fund Ltd.


 




     


     


    

 


EXHIBIT B


 


SELLING STOCKHOLDERS


 


The shares of common
stock being offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the notes. For
additional information regarding the issuance of the notes, see “Private Placement of Notes” above. We are registering
the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except
for the ownership of the notes issued pursuant to the Securities Purchase Agreement, the selling stockholders have not had any
material relationship with us within the past three years.


 


The table below lists
the selling stockholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by each of the selling
stockholders. The second column lists the number of shares of common stock beneficially owned by the selling stockholders, based
on their respective ownership of shares of common stock, notes, as of ________, 2014, assuming conversion of the notes held by
each such selling stockholder on that date but taking account of any limitations on conversion and exercise set forth therein.


 


The third column lists
the shares of common stock being offered by this prospectus by the selling stockholders and does not take in account any limitations
on conversion of the notes set forth therein.


 


In accordance with
the terms of a registration rights agreement with the holders of the notes, this prospectus generally covers the resale of 125%
of the maximum number of shares of common stock issued or issuable pursuant to the Series A Notes, including payment of interest
on the notes through [DATE], determined as if the outstanding notes (including interest on the notes through [DATE]) were converted
in full (without regard to any limitations on conversion contained therein solely for the purpose of such calculation) at a conversion
price or interest conversion price (as the case may be) calculated as of the trading day immediately preceding the date this registration
statement was initially filed with the SEC. Because the conversion price [and the interest conversion price] of the notes may be
adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this
prospectus. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.


 


Under the terms of
the notes, a selling stockholder may not convert the notes to the extent (but only to the extent) such selling stockholder or any
of its affiliates would beneficially own a number of shares of our common stock which would exceed 4.99% of the outstanding shares
of the Company. The number of shares in the second column reflects these limitations. The selling stockholders may sell all, some
or none of their shares in this offering. See “Plan of Distribution.”


 




     


     


    

 


	Name of Selling Stockholder	 	Number of Shares of
 Common Stock Owned
 Prior to Offering	 	 	Maximum Number of Shares
 of Common Stock to be Sold
 Pursuant to this Prospectus	 	 	Number of Shares of
 Common Stock of
 Owned After Offering	 
	 	 	 	 	 	 	 	 	 	 
	Alto Opportunity Master Fund, SPC (1)	 			 	 	 		 	 	 		 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	Hudson Bay Master Fund Ltd.	 	 		 	 	 		 	 	 		 



 


(1)         [            ]


 


(2)         [            ]


 




     


     


    

 


PLAN OF DISTRIBUTION


 


We are registering
the shares of common stock issuable upon conversion of the notes to permit the resale of these shares of common stock by the holders
of the notes from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the
selling stockholders of the shares of common stock. We will bear all fees and expenses incident to our obligation to register the
shares of common stock.


 


The selling stockholders
may sell all or a portion of the shares of common stock held by them and offered hereby from time to time directly or through one
or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers,
the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares
of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at
varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve
crosses or block transactions, pursuant to one or more of the following methods:


 


		·	on any national securities exchange or quotation service on which the securities may be listed
or quoted at the time of sale;



 


		·	in the over-the-counter market;



 


		·	in transactions otherwise than on these exchanges or systems or in the over-the-counter market;



 


		·	through the writing or settlement of options, whether such options are listed on an options exchange
or otherwise;



 


		·	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;



 


		·	block trades in which the broker-dealer will attempt to sell the shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;



 


		·	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;



 


		·	an exchange distribution in accordance with the rules of the applicable exchange;



 


		·	privately negotiated transactions;



 


		·	short sales made after the date the Registration Statement is declared effective by the SEC;



 


		·	broker-dealers may agree with a selling security holder to sell a specified number of such shares
at a stipulated price per share;



 


		·	a combination of any such methods of sale; and



 




     


     


    

 


		·	any other method permitted pursuant to applicable law.



 


The selling stockholders
may also sell shares of common stock under Rule 144 promulgated under the Securities Act of 1933, as amended, if available,
rather than under this prospectus. In addition, the selling stockholders may transfer the shares of common stock by other means
not described in this prospectus. If the selling stockholders effect such transactions by selling shares of common stock to or
through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form
of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock
for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection
with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers,
which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling
stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close
out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or
pledge shares of common stock to broker-dealers that in turn may sell such shares.


 


The selling stockholders
may pledge or grant a security interest in some or all of the notes or shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock
from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors
in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of
common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.


 


To the extent required
by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating in
the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed, which will set forth the aggregate amount of shares of common stock being offered
and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other
terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed
or paid to broker-dealers.


 


Under the securities
laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers.
In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied with.


 




     


     


    

 


There can be no assurance
that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the registration statement,
of which this prospectus forms a part.


 


The selling stockholders
and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M
of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders
and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged
in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock.
All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage
in market-making activities with respect to the shares of common stock.


 


We will pay all expenses
of the registration of the shares of common stock pursuant to the registration rights agreement, estimated to be $[     ]
in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities
or “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions,
if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act in
accordance with the registration rights agreements or the selling stockholders will be entitled to contribution. We may be indemnified
by the selling stockholders against civil liabilities, including liabilities under the Securities Act that may arise from any written
information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related
registration rights agreements or we may be entitled to contribution.


 


Once sold under the
registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands
of persons other than our affiliates.


 


 



     


     


    




 


Exhibit
C 


 


DEPOSIT ACCOUNT CONTROL AGREEMENT






This DEPOSIT ACCOUNT
CONTROL AGREEMENT (this “Agreement”) is made as of the ____ day of October, 2015, by and among Whitney
Bank d/b/a Hancock Bank, a Mississippi chartered banking corporation, (“Bank”), _______________, a _________________
(“Secured Party”), and Rock Creek Pharmaceuticals, Inc., a Delaware corporation (“Customer”).
Customer, Bank and Secured Party (the “Parties”), intending to be legally bound, hereby agree as follows:


 


		1.	Establishment of Accounts. As of the date of this Agreement, each of Bank and Customer acknowledges
and confirms that Customer has established that certain deposit account in the name of Customer at Bank, as identified on Exhibit
A attached hereto and made a part hereof (individually, the “Account”, and individually or collectively
with any accounts that Exhibit A may be amended to include, the “Accounts”). This Agreement shall
hereafter refer to the Accounts and to all funds, checks, cash, items, instruments, and other things of value at any time paid,
deposited, credited, or held in, payable or able to be withdrawn from, or in transit to any Account (whether for collection, provisionally,
or otherwise) and all proceeds of all of the foregoing (collectively, the “Account Collateral”).



 


		2.	Acknowledgement of Security Interest. Customer hereby acknowledges that it has granted a
first priority security interest in, lien upon, and pledge of the Accounts and the Account Collateral to Secured Party. The Bank
and Customer acknowledge that neither the Bank nor the Customer knows of any claim to or interest in the Account or the Account
Collateral, except for claims and interests of the parties referred to in this Agreement. This Agreement constitutes a separate
agreement for each Account and is intended to perfect Secured Party’s security interest in, and give “control,”
as defined in Section 9-104 of the Uniform Commercial Code as in effect in the State of New York (the “UCC”),
in favor of Secured Party with respect to the Accounts and the Account Collateral. Each of the Bank and the Customer agrees that
it will not enter into any agreement with any person or entity in connection with the Accounts by which Bank is obligated to comply
with instructions from such person or entity which conflict with this Agreement. Bank, for purposes of this Agreement, also confirms
that it is a “Bank” as defined in 9-102(8) of the UCC.



 


		3.	Account Rules. The Accounts are subject to: (a) Bank’s right to place holds for uncollected
funds pursuant to Federal Reserve Regulation CC; (b) Bank’s account and applicable service agreements, disclosures, other
deposit account documentation; and (c) Bank’s customary procedures and practices in connection therewith (all of the foregoing
collectively, the “Account Rules”) as may be in effect from time to time. In the event of a conflict
between the terms of this Agreement and the Account Rules, the terms of this Agreement shall prevail.



 




      


    	 



    

 


		4.	Account Access and Control. Customer and Secured Party agree that, Customer shall not be
entitled to access the Accounts or the Account Collateral, and Bank shall only comply with instructions originated by Secured Party
regarding the Accounts or the Account Collateral (the “Instructions”), including, without limitation,
instructions regarding wire and other transfers of money, giving stop payment orders, paying or returning items presented for payment,
or making withdrawals therefrom, and such other actions as shall from time to time be specified in writing by Secured Party that
are within the Account Rules. Customer hereby irrevocably authorizes and directs Bank to comply with any such Instructions, without
notice to or further action or consent by Customer and notwithstanding any subsequent objection or contrary direction Bank may
receive from Customer. Customer shall not be permitted to close any Account without the prior written consent of Secured Party.
Upon the written direction and authorization of the Secured Party from time to time in the general form as attached hereto on Exhibit
B, Bank shall, by wire transfer or via the ACH system, transfer such funds from the Account to such account of Customer or
of the Secured Party as specified by the Secured Party in such instructions. Notwithstanding the foregoing, Bank reserves the right
to suspend all activities in the Accounts in the event Bank reasonably believes that fraudulent or illegal activities have occurred
in connection with any such Account or this Agreement; and Bank will provide notice thereof to Secured Party, provided that such
notice shall be as permitted by relevant law.



 


		5.	Limitation of Liability of Bank. Bank shall have no responsibility or liability to Customer
or Secured Party for complying with the Instructions concerning the Accounts which are received by Bank. Bank shall have no responsibility
or liability to Customer for complying with any Instructions, and shall have no responsibility to investigate the appropriateness
of any such Instructions, even if Customer notifies Bank that Secured Party is not legally entitled to originate any such Instructions.
Bank may rely, and Bank shall be protected in acting, or refraining from acting, upon any notice (including but not limited to
electronic facsimile of such notice) believed by Bank to be genuine and to have been given by the proper party or parties. Notwithstanding
the foregoing, as provided in Section 8, Bank acknowledges that Bank shall be liable for its own bad faith, gross negligence, willful
misconduct or criminal acts as determined by a final non-appealable judgment by a court of competent jurisdiction.



 


		6.	Subordination of Rights; Setoff. Bank hereby subordinates in favor of Secured Party all
existing and future rights of recoupment or setoff and banker’s liens against the Accounts and the Account Collateral, except
those rights of setoff and banker’s liens arising in connection with:



 


		(a)	processing or encoding errors arising in an Account;
	 	 	 



		(b)	items deposited in or credited to an Account that are subsequently returned to Bank unpaid;
	 	 	 



		(c)	automated clearing house (“ACH”) credit entries initiated from an Account
by Customer or Secured Party for which there are insufficient funds in the applicable Account on the date required by the applicable
agreement with Bank for such services, or ACH debit entries initiated from an Account by Customer or Secured Party which are returned
to Bank for any reason;
	 	 	 



		(d)	all other charges and obligations and liabilities arising out of any cash management services provided
by Bank for Customer; and
	 	 	 



		(e)	any of Bank’s charges, fees and expenses provided for herein, and any other agreement pursuant
to which Bank provides services to Customer for which Customer is responsible.



 




    Page 2  


    	 



    

 


			Customer and Secured Party each understand and agree that
Bank is authorized to collect any amount owing pursuant to the preceding sentence (a “Chargeable Amount”)
by debiting any of the Accounts. Customer shall pay any Chargeable Amount immediately upon demand to the extent there are not
sufficient funds in the Accounts to cover any Chargeable Amount on the day of the debit. If any Chargeable Amount has not been
paid in full by Customer within fifteen (15) days after demand on Customer by Bank and there are still insufficient funds in the
Accounts, then Secured Party shall pay the Chargeable Amount to Bank, within fifteen (15) days after receipt of written demand
from Bank. If Bank is stayed or prohibited from making demand upon Customer for any reason, then Bank shall not be required to:
(a) make such demand upon Customer or (b) wait fifteen (15) days prior to making demand on Secured Party. Customer shall reimburse
Secured Party for any amounts so paid by the Secured Party. Secured Party’s obligation for Chargeable Amounts will be limited
to the aggregate amount transferred from the Account as a result of Bank’s acting upon the Instructions. Any demand on Secured
Party by Bank for reimbursement of a Chargeable Amount must be made within ninety (90) days after the termination of this Agreement.



 


		7.	Account Information. To the extent practical, Bank shall make available to Secured Party
such information with respect to the Accounts and Account Collateral as Secured Party may from time to time reasonably request,
including, without limitation, duplicate copies of all bank statements provided concurrently with the delivery thereof to Customer.
Customer hereby consents to such information being provided to Secured Party.



 


		8.	Protection and Indemnification of Bank. Customer and Secured Party agree that Bank shall
have no liability to either of them for any loss or damage that either or both may claim to have suffered or incurred, either directly
or indirectly, by reason of this Agreement or any transaction or service contemplated by the provisions hereof, except to the extent
primarily attributable to the bad faith, gross negligence, willful misconduct or criminal acts of Bank, as determined by a final
non-appealable judgment by a court of competent jurisdiction. In no event shall Bank be liable for losses or delays resulting from
computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Bank’s reasonable
control. Customer hereby indemnifies and holds harmless Bank, its affiliates, and its and their directors, officers, agents and
employees from and against any and all claims, damages, penalties, judgments, liabilities, losses or expenses (including reasonable
attorneys’ fees and disbursements) arising out of, resulting from, or in any way related to this Agreement or any action
taken or not taken pursuant to this Agreement except to the extent such claims, damages, penalties, judgments, liabilities, losses
or expenses are primarily caused by Bank’s bad faith, gross negligence, willful misconduct or criminal acts, as determined
by a final non-appealable judgment by a court of competent jurisdiction. Bank’s duties and obligations shall be determined
solely by the provisions of this Agreement and Bank shall not be liable except for the performance of its duties and obligations
as are set forth herein. Bank shall have no obligation to review or confirm that any actions taken pursuant to this Agreement comply
with any other agreement or document. Substantial compliance by Bank with its standard procedures for the services Bank is providing
hereunder shall be deemed to be exercise by it of ordinary care. In no event shall Bank be liable for any lost profits or for any
indirect, special, consequential or punitive damages even if advised of the possibility or likelihood of such damages. This paragraph
shall survive termination of this Agreement.



 




    Page 3  


    	 



    

 


		9.	Notices. Except as otherwise provided in this Agreement, all notices permitted or required
by this Agreement shall be in writing and shall be deemed to have been duly given (a) immediately upon personal delivery (whether
by messenger, telegram, or otherwise); (b) immediately upon facsimile transmission (with a confirmation of receipt to the sending
Party); (c) five (5) Business Days after deposit, postage prepaid, in the United States mail, if sent by certified or registered
mail; or (d) one (1) Business Day after having been timely and properly deposited for overnight delivery, fee prepaid, with a reputable
overnight courier service and addressed to the addresses for Bank, Secured Party and Customer set forth on the signature page of
this Agreement, or in accordance with such other address information as the Party to receive notice may provide in writing to the
other Parties in accordance with this notice provision. Any notice given by any other method will be deemed to have been duly given
upon its receipt. For purposes of this Agreement, “Business Day” shall mean a day on which [Bank’s
main office in Gulfport, Mississippi is open to the public for carrying on substantially all of its banking functions], but shall
not include Saturdays, Sundays, or legal holidays.



 


		10.	Termination. Secured Party may terminate this Agreement upon prior written notice to Customer
and Bank. Bank may terminate this Agreement upon at least thirty (30) days prior written notice to Customer and Secured Party.
Customer may not terminate this Agreement without the written consent of the Secured Party. Notwithstanding the foregoing, Bank
may terminate this Agreement immediately if it becomes aware of fraud or criminal activity in connection with any Account or this
Agreement; and Bank will provide notice thereof to Secured Party and Customer, provided that such notice shall be as permitted
by relevant law. The obligations of Customer and Secured Party to Bank pursuant to paragraphs 6 and 8, respectively, shall survive
the termination of this Agreement. Prior to any termination of this Agreement pursuant to this Section 10, the Bank hereby agrees
that it shall promptly take, at Customer’s sole cost and expense, all actions necessary to transfer any funds in the Account
to the institution designated in writing by the Secured Party.



 


		11.	Right to Place Hold; Bankruptcy; Interpleader. If at any time: (a) Bank, in good faith,
is in doubt as to the action it should take under this Agreement; (b) Customer becomes subject to a voluntary or involuntary bankruptcy,
reorganization, receivership or similar proceeding; or (c) Bank is served with legal process which it in good faith believes prohibits
the disbursement of the funds deposited in any Account, then Bank shall have the right to (i) place a hold on the funds in the
Account until such time as it receives an appropriate court order or other assurance satisfactory to it as to the disposition of
the funds in the Account; or (ii) commence, at Customer’s expense, an interpleader action in any competent federal or state
court located in New York, New York, and otherwise to take no further action except in accordance with written instructions from
the Secured Party or in accordance with the final order of a competent court served on Bank. The Bank shall promptly notify the
Customer and Secured Party in writing prior to taking, suffering or omitting to take any action pursuant to this Section 11. Without
limiting the generality of any other similar provision within this Agreement, the phrase “at Customer’s expense”
includes, but is not limited to, reasonable attorneys’ fees and the related costs incurred by the Bank to commence and maintain
any such interpleader, except to the extent primarily attributable to the bad faith, gross negligence, willful misconduct
or criminal acts of Bank, as determined by a final non-appealable judgment by a court of competent jurisdiction. Such fees and
costs incurred at Customer’s expense shall also be deem a “Chargeable Amount” under Section 6 above.



 




    Page 4  


    	 



    

 


		12.	Captions. Any paragraph or other captions are inserted for convenience only and shall not
be considered a part of or affect the interpretation or construction of any of the provisions of this Agreement.



 


		13.	Entire Agreement; Amendments. This Agreement contains the entire agreement of the Parties
with respect to its subject matter, and no oral or prior written statements or representations not incorporated herein shall have
any force or effect. This Agreement shall not be effective until signed by Bank, Secured Party, and Customer and shall be binding
upon and inure to the benefit of Bank, Secured Party, and Customer and their respective legal representatives, successors, and
assigns. This Agreement may not be modified without the consent of all of the Parties to this Agreement.



 


		14.	Waiver. The failure of any Party at any time to require performance by any other Party of
any provision of this Agreement shall not affect in any way the right to require performance at any subsequent time. Any waiver
by any Party of the breach of any provision of this Agreement shall be in writing and shall not operate as or be construed to be
a waiver of any other breach of the provision or of any breach of any other provision of this Agreement. No course of dealing or
performance shall be deemed to amend or otherwise affect any provision of this Agreement.



 


		15.	Severability. If any provision of this Agreement is determined by a court of competent jurisdiction
to be invalid, illegal, or unenforceable, that determination shall not affect any other provision of this Agreement, and each such
other provision shall be construed and enforced as if the invalid, illegal, or unenforceable provision were not contained herein.



 


		16.	Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed signature
page counterpart to this Agreement via telecopier facsimile transmission or other similar method of electronic transmission shall
be effective as if it were delivery of a manually delivered, original, executed counterpart thereof.



 


		17.	Governing Law; Jury Trial Waiver. The validity, construction, interpretation, and enforcement
of this Agreement, and the rights of the Parties hereto, in connection with each Account shall be determined under, governed by,
and construed in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law.
The Parties agree that Bank’s jurisdiction for purposes of Section 9-304 of the UCC shall be the State of New York. EACH
OF THE PARTIES WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF THE ACTION.



 


[Remainder of Page
Intentionally Left Blank.

Signatures on Following Page.]


 




    Page 5  


    	 



    

 


IN WITNESS WHEREOF,
each of the Parties has executed and delivered this Deposit Account Control Agreement effective as of the day and year first set
forth above.


 


	Bank’s Address for Notices:	BANK:
	 	 	 
	 	Whitney Bank d/b/a Hancock Bank
	Whitney Bank d/b/a Hancock Bank	 	 
	100 Capitol Commerce Center Blvd. 	 	 
	4th Floor, Suite 450	By:	 
	Montgomery, AL 36117	Print Name: 	 
	Attention: Deposit Services Manager	Title:	 
	Fax: (334) 213-0974	 	 
	Email: N/A	 	 
	with a copy, which shall not constitute notice, to:	 	 


 


Whitney Bank d/b/a Hancock Bank


One Hancock Plaza, 6th Floor


2510 14th Street


Gulfport, MS 39501


Attention:
Legal Dept.


Fax: (228) 563-5759

Email: N/A


 


	Secured Party’s Address for Notices:	 	SECURED PARTY:
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	Print Name: 	 
	 	 	 	Title:	 
	Fax: 	 	 	 	 
	Email: 	 	 	 	 
	 	 	 	 	 
	Customer’s Address for Notices:	 	CUSTOMER:
	 	 	 	 	 
		 	Rock Creek Pharmaceuticals, Inc.
	Rock Creek Pharmaceuticals, Inc.	 	 	 
	2040 Whitfield Avenue, Suite 300	 	 	 
	Sarasota, Florida 34243	 	By:	 
	Attention:	 	 	Print Name: 	 
	Fax: 	 	 	Title:	 
	Email: 	 	 	 	 


 


Deposit Account Control Agreement


 




      


    	 



    

 


EXHIBIT A


 


List of Accounts


 


	Name on Account	 	Account Number	 	Account Type
	Rock Creek Pharmaceuticals, Inc.	 	 	 	Commercial Checking


 




      


    	 



    

 


EXHIBIT B


 


[to be placed on Secured Party’s letterhead]


 


____________________, 20_____


 


Whitney Bank d/b/a Hancock Bank


100 Capitol Commerce Center Blvd


4th Floor, Suite 450


Montgomery, AL 36117


Attention: Deposit Services Manager


Fax: (334) 213-0974


 


		Re:	Deposit Account Control Agreement, made as of the ____ day of _____________, 2015 (the “Agreement”),
by and among Whitney Bank d/b/a Hancock Bank, a Mississippi chartered banking corporation (“Bank”), ______________,
a ____________________ (“Secured Party”), and Rock Creek Pharmaceuticals, Inc., a Delaware corporation
(“Customer”)



 


Ladies and Gentlemen:


 


Reference is hereby
made to the Agreement. Capitalized terms used herein and not defined shall have the meanings given them in the Agreement.


 


We hereby direct you
to send ________ of the funds in the Account to __________ by the method and at the address indicated below. We recognize that
your obligation to comply with these instructions is subject to the other provisions of the Agreement.


 


Funds transfer instructions:


 


	Amount of Wire:$		 


 


Address:


ABA#:


Acct Name:


Acct #:


Ref:


 


	 	Very truly yours,
	 	 	 
	 	By:	 
	 	Print Name:	 
	 	Title:	 


 




      


    	 



    

 


With a copy to, which shall not constitute
notice:


 


Whitney Bank d/b/a Hancock Bank


One Hancock Plaza, 6th Floor


2510 14th Street


Gulfport, MS 39501


Attention:
Legal Dept.


Fax: (228) 563-5759

Email: N/A