SECURITIES PURCHASE AGREEMENT


 


THIS SECURITIES PURCHASE
AGREEMENT (“Agreement”) is made as of May 24, 2012 by and among LUXEYARD, INC., a Delaware corporation (the “Company”),
and the Investors set forth on the signature pages affixed hereto (each an “Investor” and collectively the “Investors”).


 


RECITALS


 


A.           The
Company and the Investors are executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D (“Regulation D”), as promulgated by the U.S. Securities and Exchange Commission
(the “SEC”) under the Securities Act of 1933, as amended;


 


B.           The
Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms and conditions
stated in this Agreement, an aggregate of up to 10,000,000 units, (the “Units”) each unit consisting of (i) one share
of the Company’s 8% Convertible Preferred Stock, par value $.0001 per share (the “Preferred Stock”), (ii) a warrant
to purchase one share of the Company’s common stock, par value $.0001 per share (the “Common Stock”) (subject
to adjustment) at an exercise price of $0.50 per share (subject to adjustment) in the form attached hereto as Exhibit A
(the “Series C Warrants”), (iii) a warrant to purchase one share of Common Stock (subject to adjustment) at an exercise
price of $0.35 per share (subject to adjustment) in the form attached hereto as Exhibit B (the “Series D Warrants”)
and (iv) a warrant to purchase one share of Common Stock (subject to adjustment) at an exercise price of $0.50 per share (subject
to adjustment) in the form attached hereto as Exhibit C (the “Series E Warrants” and collectively with the Series
C Warrants and the Series D Warrants, the “Warrants”);


 


C.           The
purchase price per Unit is $0.35;


 


D.           Contemporaneous
with the sale of the Units, the parties hereto will execute and deliver a Registration Rights Agreement, in the form attached hereto
as Exhibit D (the “Registration Rights Agreement”), pursuant to which the Company will agree to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and applicable
state securities laws; and


 


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


 


NOW, THEREFORE, in
consideration of the mutual promises made in this Agreement and for other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties to this Agreement agree as follows:


 



    	 



    	 



    

 


1.            Definitions.
In addition to those terms defined above and elsewhere in this Agreement, for the purposes of this Agreement, the following terms
shall have the meanings set forth below:


 


“Affiliate”
means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is
controlled by, or is under common control with, such Person.


 


“Business
Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction
of business.


 


“Certificate
of Designation” means the Certificate of Designation filed with the Secretary of State of the State of Delaware on May
23, 2012, a copy of which is attached to this Agreement as Exhibit E.


 


“Certificate
of Incorporation” means the Certificate of Incorporation of the Company as filed with the Delaware Secretary of State
on December 31, 2007, as it may be amended from time to time.


 


“Company’s
Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the 1933 Act) of the Company,
after due inquiry.


 


“Confidential
Information” means trade secrets, confidential information and know-how (including but not limited to ideas, formulae,
compositions, processes, procedures and techniques, research and development information, computer program code, performance specifications,
support documentation, drawings, specifications, designs, business and marketing plans, and customer and supplier lists and related
information).


 


“Control”
(including the terms “controlling”, “controlled by” or “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.


 


“Conversion
Shares” means the shares of Common Stock issuable upon conversion of the Preferred Stock as set forth in the Certificate
of Designation.


 


“Dividend
Shares” means the shares of Common Stock that may be distributed as a dividend on the Shares in lieu of a cash dividend
as set forth in the Certificate of Designation.


 


“Effective
Date” means the date on which the initial Registration Statement is declared effective by the SEC.


 


“Effectiveness
Deadline” means the date on which the initial Registration Statement is required to be declared effective by the SEC
under the terms of the Registration Rights Agreement.


 



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(a)   “Excluded
Security” means any Shares under this Agreement or any shares of Common Stock issued or issuable: (i) in connection with
the grant of options to purchase Common Stock, restricted stock awards or other stock-based awards or sales, with, in the case
of stock options or other stock-based awards requiring payment therefor, exercise or purchase prices not less than the market price
of the Common Stock on the date of grant or issuance, which are issued, granted or sold to employees, officers or directors of
the Company for the primary purpose of soliciting or retaining their employment or service pursuant to an stock plan approved by
the Board of Directors of the Company, and the Common Stock issued upon the exercise thereof; (ii) upon conversion of the Shares;
(iii) upon the exercise of the Warrants; (iv) as payment of any dividends due and owing on the Shares in accordance with the terms
of the Certificate of Designation; (v) upon exercise of any Options or Convertible Securities which are outstanding on the date
hereof, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the
date hereof to lower the exercise or conversion price, to increase the number of shares of capital stock issuable upon conversion
or exercise, to extend the expiration or termination date or to change the antidilution provisions; (vi) the issuance of securities
pursuant to stock splits, stock dividends or similar transactions where are shareholders are treated equally; and (vii) the issuance
of securities to commercial banking institutions or lessors in connection with commercial loans, commercial credit arrangements,
equipment financings, commercial property leases or similar transactions that are for purposes other than raising equity capital.


 


“Intellectual
Property” means all of the following: (i) patents, patent applications, patent disclosures and inventions (whether or
not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names,
logos, slogans and Internet domain names, together with all goodwill associated with each of the foregoing; (iii) copyrights and
copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; and (v) proprietary computer software
(including but not limited to data, data bases and documentation).


 


“Material
Adverse Effect” means a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial
or otherwise), business, or prospects of the Company and its Subsidiaries taken as a whole, or (ii) the ability of the Company
to perform its obligations under the Transaction Documents.


 


“Person”
means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically
listed herein.


 


“Purchase
Price” means the aggregate amount set forth opposite the Investors’ names on the signature pages attached hereto,
which shall represent the amount which is $0.35 multiplied by the aggregate number of Units set forth opposite the Investors’
names on the signature pages attached to this Agreement.


 


“Registration
Statement” has the meaning set forth in the Registration Rights Agreement.


 



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“Securities”
means the Units, the Shares, the Conversion Shares, the Dividend Shares, the Warrants and the Warrant Shares.


 


“Shares”
means the shares of Preferred Stock underlying the Units being purchased by the Investors hereunder having the rights, privileges,
preferences and restrictions set forth in the Certificate of Designation.


 


“Subsidiary”
of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such
voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.


 


“Transaction
Documents” means this Agreement, the Escrow Agreement, the Warrants and the Registration Rights Agreement.


 


“Warrant Shares”
means the shares of Common Stock issuable upon the exercise of the Warrants.


 


“1933 Act”
means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.


 


“1934 Act”
means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.


 



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2.            Purchase
and Sale of the Units. Subject to the terms and conditions of this Agreement, on the Closing Date, each of the Investors shall
severally, and not jointly, purchase, and the Company shall sell and issue to the Investors, the Units in the respective amounts
set forth opposite the Investors’ names on the signature pages attached to this Agreement in exchange for the Purchase Price
as specified in Section 3 below.


 


3.            Closing.
Each Investor shall promptly, but no less than one Business Day prior to the Closing (as defined below), cause to be sent a check
or wire transfer in same day funds payable to the “Luxeyard, Inc. Escrow Account” in an amount representing such Investor’s
Purchase Price as set forth on the signature pages to this Agreement. On the date (the “Closing Date”), the Company
receives the Purchase Price from American Stock Transfer and Trust Company (the “Escrow Agent”) of the Purchase Price
in full to the Company, the Company shall deliver to the Investors, a certificate or certificates, registered in such name or names
as the Investors may designate, representing the Shares and the Warrants (the “Closing”); provided, however, that the
Closing shall occur on or before June 15, 2012. The Closing of the purchase and sale of the Units shall take place at the offices
of Lowenstein Sandler PC, 1251 Avenue of the Americas, 18th Floor, New York, New York 10020, or at such other location and on such
other date as the Company and the Investors shall mutually agree.


 


4.            Representations
and Warranties of the Company. The Company hereby represents and warrants to the Investors and the Placement Agent that:


 


4.1           Organization,
Good Standing and Qualification. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority
to carry on its business as now conducted and to own its properties. Each of the Company and its Subsidiaries is duly qualified
to do business as a foreign corporation and is in good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property makes such qualification or leasing necessary unless the failure to so qualify has not had and
could not reasonably be expected to have a Material Adverse Effect.


 


4.2           
Authorization. The Company has full power and authority and has taken all requisite action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization, execution and delivery of the Transaction Documents,
(ii) the authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization,
issuance (or reservation for issuance) and delivery of the Securities. The Transaction Documents constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’
rights generally and to general equitable principles.


 



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4.3           Capitalization.
Schedule 4.3 sets forth (a) the authorized capital stock of the Company on the date hereof; (b) the number of shares of
capital stock issued and outstanding; (c) the number of shares of capital stock issuable pursuant to the Company’s stock
plans; and (d) the number of shares of capital stock issuable and reserved for issuance pursuant to securities (other than the
Shares and the Warrants) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company. All
of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of pre-emptive rights and were issued in full compliance with applicable state and federal securities
law and any rights of third parties. Except as described on Schedule 4.3, all of the issued and outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive
rights, were issued in full compliance with applicable state and federal securities law and any rights of third parties and are
owned by the Company, beneficially and of record, subject to no lien, encumbrance or other adverse claim. Except as described on
Schedule 4.3, no Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities
of the Company. Except as described on Schedule 4.3, there are no outstanding warrants, options, convertible securities
or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated
to issue any equity securities of any kind and except as contemplated by this Agreement, neither the Company nor any of its Subsidiaries
is currently in negotiations for the issuance of any equity securities of any kind. Except as described on Schedule 4.3
and except for the Registration Rights Agreement, there are no voting agreements, buy-sell agreements, option or right of first
purchase agreements or other agreements of any kind among the Company and any of the securityholders of the Company relating to
the securities of the Company held by them. Except as described on Schedule 4.3 and except as provided in the Registration
Rights Agreement, no Person has the right to require the Company to register any securities of the Company under the 1933 Act,
whether on a demand basis or in connection with the registration of securities of the Company for its own account or for the account
of any other Person.


 


Except as described
on Schedule 4.3, the issuance and sale of the Securities hereunder will not obligate the Company to issue shares of Common
Stock or other securities to any other Person (other than the Investors) and will not result in the adjustment of the exercise,
conversion, exchange or reset price of any outstanding security.


 


Except as described
on Schedule 4.3, the Company does not have outstanding stockholder purchase rights or “poison pill” or any similar
arrangement in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of certain
events.


 


4.4           Valid
Issuance. The Shares will have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, will
be validly issued, fully paid and nonassessable, and shall be free and clear of all encumbrances and restrictions (other than those
created by the Investors), except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable
securities laws. The Warrants have been duly and validly authorized. Upon the conversion of the Shares, distribution of the Dividend
Shares by the Company, and due exercise of the Warrants, the Shares, the Conversion Shares, Dividend Shares, and Warrant Shares,
respectively, will be validly issued, fully paid and non-assessable free and clear of all encumbrances and restrictions, except
for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws and except for those
created by the Investors. The Company has reserved a sufficient number of shares of Common Stock for issuance of the Conversion
Shares upon conversion of the Shares, for the issuance of the Dividend Shares upon distribution of a dividend on the Shares by
the Company, and for issuance of the Warrant Shares upon the exercise of the Warrants, free and clear of all encumbrances and restrictions,
except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws and except
for those created by the Investors.


 



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4.5          Consents.
The execution, delivery and performance by the Company of
the Transaction Documents and the offer, issuance and sale of the Securities require no consent of, action by or in respect of,
or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable
state securities laws and post-sale filings pursuant to applicable state and federal securities laws which the Company undertakes
to file within the applicable time periods and the filing of the Company’s amendment to its Certificate of Incorporation
and the Certificate of Designation with the Secretary of State of the State of Delaware prior to the Closing. Subject to the accuracy
of the representations and warranties of each Investor set forth in Section 5 hereof, the Company has taken all action necessary
to exempt (i) the issuance and sale of the Securities, (ii) the issuance of the Conversion Shares upon conversion of the Shares,
(iii) the issuance of the Dividend Shares upon distribution of a dividend on the Shares by the Company, (iv) the issuance of the
Warrant Shares upon due exercise of the Warrants, and (v) the other transactions contemplated by the Transaction Documents from
the provisions of any stockholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination
or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject
and any provision of the Company’s Certificate of Incorporation or Bylaws that is or could reasonably be expected to become
applicable to the Investors as a result of the transactions contemplated hereby, including without limitation, the issuance of
the Securities and the ownership, disposition or voting of the Securities by the Investors or the exercise of any right granted
to the Investors pursuant to this Agreement or the other Transaction Documents.


 


4.6          Delivery
of SEC Filings; Business. The Company has made available to the Investors through the EDGAR system, true and complete copies
of the Company’s most recent Annual Report on Form 10-K for the fiscal year ended December 31, 2011 (the “10-K”),
and all other reports filed by the Company pursuant to the 1934 Act since December 31, 2011 and prior to the date hereof (collectively,
the “SEC Filings”). The SEC Filings are the only filings required of the Company pursuant to the 1934 Act for such
period. The Company and its Subsidiaries are engaged in all material respects only in the business described in the SEC Filings
and the SEC Filings contain a complete and accurate description in all material respects of the business of the Company and its
Subsidiaries, taken as a whole.


 


4.7          Use
of Proceeds. The net proceeds of the sale of the Units hereunder shall be used by the Company for working capital and general
corporate purposes.


 


4.8          No
Material Adverse Change. Since December 31, 2011, except as described on Schedule 4.8, there has not been:


 


(a)          any
change in the consolidated assets, liabilities, financial condition or operating results of the Company from that reflected in
the financial statements included in the Company’s SEC Filings, except for changes in the ordinary course of business which
have not had and could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;


 



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(b)          any
declaration or payment of any dividend, or any authorization or payment of any distribution, on any of the capital stock of the
Company, or any redemption or repurchase of any securities of the Company;


 


(c)          any
material damage, destruction or loss, whether or not covered by insurance to any assets or properties of the Company or its Subsidiaries;


 


(d)          any
waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed
to it;


 


(e)          any
satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a Subsidiary, except
in the ordinary course of business and which is not material to the assets, properties, financial condition, operating results
or business of the Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is proposed
to be conducted);


 


(f)          any
change or amendment to the Company’s Certificate of Incorporation (other than the Certificate of Amendment to be filed with
the Secretary of State of the State of Delaware prior to the Closing) or Bylaws, or material change to any material contract or
arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject;


 


(g)          any
material labor difficulties or labor union organizing activities with respect to employees of the Company or any Subsidiary;


 


(h)          any
material transaction entered into by the Company or a Subsidiary other than in the ordinary course of business;


 


(i)          the
loss of the services of any key employee, or material change in the composition or duties of the senior management of the Company
or any Subsidiary;


 


(j)          the
loss or threatened loss of any customer which has had or could reasonably be expected to have a Material Adverse Effect; or


 


(k)          any
other event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect.


 


4.9          SEC
Filings.


 


(a)          At
the time of filing thereof, the SEC Filings complied as to form in all material respects with the requirements of the 1934 Act
and did 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.


 



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(b)          Each
registration statement and any amendment thereto filed by the Company since July 1, 2010 pursuant to the 1933 Act and the rules
and regulations thereunder, as of the date such statement or amendment became effective, complied as to form in all material respects
with the 1933 Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein not misleading; and each prospectus filed pursuant to
Rule 424(b) under the 1933 Act, as of its issue date and as of the closing of any sale of securities pursuant thereto did not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements made therein, in the light of the circumstances under which they were made, not misleading.


 


4.10       No
Conflict, Breach, Violation or Default. The execution, delivery and performance of the Transaction Documents by the Company
and the issuance and sale of the Securities will not conflict with or result in a breach or violation of any of the terms and provisions
of, or constitute a default under (i) the Company’s Certificate of Incorporation, including the Certificate of Designation,
or the Company’s Bylaws, both as in effect on the date hereof (true and complete copies of which have been made available
to the Investors through the EDGAR system), or (ii)(a) any statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company, any Subsidiary or any of their respective assets or properties,
or (b) any agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or a Subsidiary is
bound or to which any of their respective assets or properties is subject.


 


4.11       Tax
Matters. The Company and each Subsidiary have timely prepared and filed all tax returns required to have been filed by the
Company or such Subsidiary with all appropriate governmental agencies and timely paid all taxes shown thereon or otherwise owed
by it. The charges, accruals and reserves on the books of the Company in respect of taxes for all fiscal periods are adequate in
all material respects, and there are no material unpaid assessments against the Company or any Subsidiary nor, to the Company’s
Knowledge, any basis for the assessment of any additional taxes, penalties or interest for any fiscal period or audits by any federal,
state or local taxing authority except for any assessment which is not material to the Company and its Subsidiaries, taken as a
whole. All taxes and other assessments and levies that the Company or any Subsidiary is required to withhold or to collect for
payment have been duly withheld and collected and paid to the proper governmental entity or third party when due. There are no
tax liens or claims pending or, to the Company’s Knowledge, threatened against the Company or any Subsidiary or any of their
respective assets or property. There are no outstanding tax sharing agreements or other such arrangements between the Company and
any Subsidiary or other corporation or entity.


 


4.12       Title
to Properties. The Company and each Subsidiary have good and marketable title to all real properties and all other properties
and assets owned by it, in each case free from liens, encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or currently planned to be made thereof by them; and the Company and each Subsidiary hold
any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with
the use made or currently planned to be made thereof by them.


 



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4.13        Certificates,
Authorities and Permits. The Company and each Subsidiary possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now operated by it, and neither the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or such Subsidiary, could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate.


 


4.14        Labor
Matters.


 


(a)          The
Company is not a party to or bound by any collective bargaining agreements or other agreements with labor organizations. The Company
has not violated in any material respect any laws, regulations, orders or contract terms, affecting the collective bargaining rights
of employees, labor organizations or any laws, regulations or orders affecting employment discrimination, equal opportunity employment,
or employees’ health, safety, welfare, wages and hours.


 


(b)          (i)
There are no labor disputes existing, or to the Company’s Knowledge, threatened, involving strikes, slow-downs, work stoppages,
job actions, disputes, lockouts or any other disruptions of or by the Company’s employees, (ii) there are no unfair labor
practices or petitions for election pending or, to the Company’s Knowledge, threatened before the National Labor Relations
Board or any other federal, state or local labor commission relating to the Company’s employees, (iii) no demand for recognition
or certification heretofore made by any labor organization or group of employees is pending with respect to the Company and (iv)
to the Company’s Knowledge, the Company enjoys good labor and employee relations with its employees and labor organizations.


 


(c)          The
Company is, and at all times has been, in compliance in all material respects with all applicable laws respecting employment (including
laws relating to classification of employees and independent contractors) and employment practices, terms and conditions of employment,
wages and hours, and immigration and naturalization. There are no claims pending against the Company before the Equal Employment
Opportunity Commission or any other administrative body or in any court asserting any violation of Title VII of the Civil Rights
Act of 1964, the Age Discrimination Act of 1967, 42 U.S.C. §§ 1981 or 1983 or any other federal, state or local Law,
statute or ordinance barring discrimination in employment.


 


(d)          Except
as described on Schedule 4.14, the Company is not a party to, or bound by, any
employment or other contract or agreement that contains any severance, termination pay or change of control liability or obligation,
including, without limitation, any “excess parachute payment,” as defined in Section 280G(b) of the Internal Revenue
Code (the “Code”).


 


(e)          Each
of the Company’s employees is a Person who is either a United States citizen or a permanent resident entitled to work in
the United States. To the Company’s Knowledge, the Company has no liability for the improper classification by the Company
of such employees as independent contractors or leased employees prior to the Closing.


 



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4.15        Intellectual
Property.


 


(a)          All
Intellectual Property of the Company and its Subsidiaries is currently in compliance with all legal requirements (including timely
filings, proofs and payments of fees) and is valid and enforceable. No Intellectual Property of the Company or its Subsidiaries
which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted
or as currently proposed to be conducted has been or is now involved in any cancellation, dispute or litigation, and, to the Company’s
Knowledge, no such action is threatened. To the Company’s Knowledge, no patent of the Company or its Subsidiaries has been
or is now involved in any interference, reissue, re-examination or opposition proceeding.


 


(b)          All
of the licenses and sublicenses and consent, royalty or other agreements concerning Intellectual Property which are necessary for
the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently
proposed to be conducted to which the Company or any Subsidiary is a party or by which any of their assets are bound (other than
 generally commercially available, non-custom, off-the-shelf software application programs having a retail acquisition price
of less than $10,000 per license) (collectively, “License Agreements”) are valid and binding obligations of the Company
or its Subsidiaries that are parties thereto and, to the Company’s Knowledge, the other parties thereto, enforceable in accordance
with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally, and to the Company’s
Knowledge, there exists no event or condition which will result in a material violation or breach of or constitute (with or without
due notice or lapse of time or both) a default by the Company or any of its Subsidiaries under any such License Agreement.


 


(c)          The
Company and its Subsidiaries own or have the valid right to use all of the Intellectual Property that is necessary for the conduct
of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed
to be conducted and for the ownership, maintenance and operation of the Company’s and its Subsidiaries’ properties
and assets, free and clear of all liens, encumbrances, adverse claims or obligations to license all such owned Intellectual Property
and Confidential Information, other than licenses entered into in the ordinary course of the Company’s and its Subsidiaries’
businesses. To the Company’s Knowledge, the Company and its Subsidiaries have a valid and enforceable right to use all third
party Intellectual Property and Confidential Information used or held for use in the respective businesses of the Company and its
Subsidiaries.


 


(d)          To
the Company’s Knowledge, the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted
does not infringe or otherwise impair or conflict with (collectively, “Infringe”) any Intellectual Property rights
of any third party or any confidentiality obligation owed to a third party, and, to the Company’s Knowledge, the Intellectual
Property and Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of Company’s
and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted are not
being Infringed by any third party. There is no litigation or order pending or outstanding or, to the Company’s Knowledge,
threatened or imminent, that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of any
Intellectual Property or Confidential Information of the Company and its Subsidiaries and the Company’s and its Subsidiaries’
use of any Intellectual Property or Confidential Information owned by a third party, and, to the Company’s Knowledge, there
is no valid basis for the same.


 



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(e)          The
consummation of the transactions contemplated hereby and by the other Transaction Documents will not result in the alteration,
loss, impairment of or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any of the
Intellectual Property or Confidential Information which is necessary for the conduct of Company’s and each of its Subsidiaries’
respective businesses as currently conducted or as currently proposed to be conducted.


 


(f)          The
Company and its Subsidiaries have taken reasonable steps to protect the Company’s and its Subsidiaries’ rights in their
Intellectual Property and Confidential Information. Each employee, consultant and contractor who has had access to Confidential
Information which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as
currently conducted or as currently proposed to be conducted has executed an agreement to maintain the confidentiality of such
Confidential Information and has executed appropriate agreements that are substantially consistent with the Company’s standard
forms thereof. Except under confidentiality obligations, there has been no material disclosure of any of the Company’s or
its Subsidiaries’ Confidential Information to any third party.


 


4.16        Environmental
Matters. Neither the Company nor any Subsidiary is in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances
or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively,
“Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating
to any Environmental Laws, which violation, contamination, liability or claim has had or could reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate; and there is no pending or, to the Company’s Knowledge, threatened
investigation that might lead to such a claim.


 


4.17        Litigation.
There are no pending actions, suits or proceedings against or affecting the Company, its Subsidiaries or any of its or their properties;
and to the Company’s Knowledge, no such actions, suits or proceedings are threatened or contemplated. Neither the Company
nor any Subsidiary, nor any director or officer thereof, is or since December 31, 2008 has been the subject of any action involving
a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not
been, and to the Company’s Knowledge, there is not pending or contemplated, any investigation by the SEC involving the Company
or any current or former director or officer of the Company. The SEC has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any Subsidiary under the 1933 Act or the 1934 Act.


 



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4.18         Financial
Statements. The financial statements included in each SEC Filing present fairly, in all material respects, the consolidated
financial position of the Company as of the dates shown and its consolidated results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with United States generally accepted accounting principles
applied on a consistent basis (“GAAP”) (except as may be disclosed therein or in the notes thereto, and, in the case
of quarterly financial statements, as permitted by Form 10-Q under the 1934 Act) and comply as to form in all material respects
with all applicable accounting requirements and the published rules and regulations of the SEC. Except as set forth in the financial
statements of the Company included in the SEC Filings filed prior to the date hereof or as described on Schedule 4.18, neither
the Company nor any of its Subsidiaries has incurred any liabilities, contingent or otherwise, except those incurred in the ordinary
course of business, consistent (as to amount and nature) with past practices since the date of such financial statements, none
of which, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.


 


4.19         Insurance
Coverage. The Company and each Subsidiary maintain in full force and effect insurance coverage that is customary for comparably
situated companies for the business being conducted and properties owned or leased by the Company and each Subsidiary, and the
Company reasonably believes such insurance coverage to be adequate against all liabilities, claims and risks against which it is
customary for comparably situated companies to insure.


 


4.20         Brokers
and Finders. No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right,
interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant
to any agreement, arrangement or understanding entered into by or on behalf of the Company, other than as described in Schedule
4.20.


 


4.21         No
Directed Selling Efforts or General Solicitation. Neither the Company nor any Person acting on its behalf has conducted any
general solicitation or general advertising (as those terms are used in Regulation D) in connection with the offer or sale of any
of the Securities.


 


4.22         No
Integrated Offering. Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances
that would adversely affect reliance by the Company on Section 4(2) for the exemption from registration for the transactions contemplated
hereby or would require registration of the Securities under the 1933 Act.


 


4.23         Private
Placement. Assuming the accuracy of the Investment Representations (as defined in Section 6.2(a) of this Agreement), the offer
and sale of the Securities to the Investors as contemplated hereby is exempt from the registration requirements of the 1933 Act.


 


4.24         Questionable
Payments. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of their
respective current or former directors, officers, employees, agents or other Persons acting on behalf of the Company or any Subsidiary,
has on behalf of the Company or any Subsidiary or in connection with their respective businesses: (a) used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) made any direct
or indirect unlawful payments to any governmental officials or employees from corporate funds; (c) established or maintained any
unlawful or unrecorded fund of corporate monies or other assets; (d) made any false or fictitious entries on the books and records
of the Company or any Subsidiary; or (e) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful
payment of any nature.


 



    	-13-



    	 



    

 


4.25         Transactions
with Affiliates. Except as disclosed on Schedule 4.25, none of the officers or directors of the Company and, to the
Company’s Knowledge, none of the employees of the Company is presently a party to any transaction with the Company or any
Subsidiary (other than as holders of stock options and/or warrants, and for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the Company’s
Knowledge, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director,
trustee or partner.


 


4.26         Internal
Controls. Except as disclosed on Schedule 4.26, The Company is
in material compliance with the provisions of the Sarbanes-Oxley Act of 2002 currently applicable to the Company. The Company and
the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets
is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company has established disclosure controls and procedures (as defined in 1934 Act Rules 13a-15(e) and 15d-15(e)) for
the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company, including
the Subsidiaries, is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s most recently filed periodic report under the 1934 Act, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of the end of the period
covered by the most recently filed periodic report under the 1934 Act (such date, the “Evaluation Date”). The Company
presented in its most recently filed periodic report under the 1934 Act the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no significant changes in the Company’s internal controls (as such term is defined in Item 308 of Regulation S-K),
to the Company’s Knowledge, in other factors that could significantly affect the Company’s internal controls. The Company
maintains and will continue to maintain a standard system of accounting established and administered in accordance with GAAP and
the applicable requirements of the 1934 Act.


 


4.27         Disclosures.
Neither the Company nor, to the Company’s Knowledge, any Person acting on its behalf has provided the Investors or their
agents or counsel with any information that constitutes or might constitute material, non-public information, other than the terms
of the transactions contemplated hereby. The written materials delivered to the Investors in connection with the transactions contemplated
by the Transaction Documents do not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading.


 



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5.           Representations
and Warranties of the Investors. Each of the Investors hereby severally, and not jointly, represents and warrants to the Company
that:


 


5.1          Organization
and Existence. Such Investor, if other than an individual, is a validly existing corporation, limited partnership or limited
liability company and has all requisite corporate, partnership or limited liability company power and authority to invest in the
Securities pursuant to this Agreement.


 


5.2          Authorization.
The execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is a party have been
duly authorized and each will constitute the valid and legally binding obligation of such Investor, enforceable against such Investor
in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors’ rights generally. No consent, approval, authorization,
order, filing, registration or qualification of or with any court, government authority or third person is required to be obtained
by such Investor in connection with the execution and delivery of the Transaction Documents to which such Investor is a party or
the performance of such Investor's obligations hereunder or thereunder.


 


5.3          Investment
Representations.   Such Investor understands that the Securities have
not been registered under the Securities Act, under any state securities laws or under securities laws of any other jurisdiction.
Such Investor also understands that the Securities are being offered and sold pursuant to an exemption from registration contained
in the 1933 Act based in part upon such Investor’s representations contained in this Agreement. Such Investor hereby represents
and warrants as follows:


 


5.3.1           Investment
Experience. Such Investor has substantial experience in evaluating and investing in private placement transactions of securities
and is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests.
Each Investor understands that such Investor's investment in the Securities being purchased by such Investor from the Company involves
a high degree of risk. Such Investor understands that no United States federal or state agency or any other government or governmental
agency has passed or made any recommendation or endorsement of the Securities being purchased by the Investor from the Company.


 


5.3.2           General
Solicitation. Such Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented
at any seminar or any other general solicitation or general advertisement.


 



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5.3.3           Purchase
Entirely for Own Account. The Securities to be received by such Investor hereunder will be acquired for such Investor’s
own account and not for the account of others or as nominee or agent, and not with a view to, or for, resale, distribution, syndication,
or fractionalization thereof, and such Investor has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the 1933 Act without prejudice, however, to such Investor’s right at all times to sell
or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws.
Nothing contained herein shall be deemed a representation or
warranty by such Investor to hold the Securities for any period of time. Such Investor is not a broker-dealer registered
with the SEC under the 1934 Act or an entity engaged in a business that would require it to be so registered.


 


5.3.4           Accredited
Investor. Such Investor is an accredited investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act.


 


5.3.5           Rule
144. Such Investor understands that the Securities are each characterized as “restricted securities” under the
federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such Securities may be resold without registration under the 1933 Act only in certain
limited circumstances. Such Investor acknowledges and agrees that the Securities must be held indefinitely unless they are subsequently
registered under the 1933 Act or an exemption from such registration is available. Such Purchaser has been advised or is aware
of the provisions of Rule 144 promulgated under the 1933 Act as in effect from time to time, which permits limited resale of securities
purchased in a private placement subject to the satisfaction of certain conditions, including, among other things: the availability
of certain current public information about the Company, the resale occurring following the required holding period under Rule
144 and the number of shares being sold during any three-month period not exceeding specified limitations.


 


5.3.6           Non-U.S.
Purchasers. If such Investor is not a United States person (as defined by Section 7701(a)(30) of the Code), such Investor has
fully observed the laws of its jurisdiction in connection with any invitation to subscribe for the Shares and Warrants or any use
of this Agreement including, (a) the legal requirements within its jurisdiction for the acquisition of the Shares and Warrants,
and any conversion shares (b) any foreign exchange restrictions applicable to such acquisition, and (c) any regulatory approval
that may need to be obtained. Investor’s acquisition for and continued ownership of the Shares and Warrants and any conversion
shares will not violate any applicable securities laws or other requirements of law of such Investor’s jurisdiction.


 


5.4           Disclosure
of Information. Such Investor has had an opportunity to receive all information related to the Company requested by it and
to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the
offering of the Securities. Such Investor acknowledges receipt of copies of the SEC Filings. Neither such inquiries nor any other
due diligence investigation conducted by such Investor shall modify, limit or otherwise affect such Investor’s right to rely
on the Company’s representations and warranties contained in this Agreement.


 


5.5           No
Public Market. Such Investor understands that no public market exists for the Shares or Warrants, and that the Company has
made no assurances that a public market will ever exist for the Shares or Warrants.


 



    	-16-



    	 



    

 


5.6           Legends.
It is understood that, except as provided below, certificates evidencing the Securities may bear the following or any similar legend:


 


(a)          “THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR
OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”


 


(b)          If
required by the authorities of any state in connection with the issuance of sale of the Securities, the legend required by such
state authority.


 


5.7           Brokers
and Finders. No Person will have (other than the Placement Agent), as a result of the transactions contemplated by the Transaction
Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee
or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of such Investor.


 


5.8           Tax
Advice. Such Investor has reviewed with such Investor’s own legal and tax advisors the tax consequences of such Investor’s
acquisition of the Securities being acquired by such Purchaser pursuant to this Agreement and the sale or other disposition of
the Securities. Such Investor acknowledges that it is relying solely on such Investor’s own advisors and not on any statements
or representations of the Company or any other investor or of any of their respective affiliates or any of the respective representatives,
agents or advisors of the Company or any other Investor or any of their respective affiliates with respect to such tax consequences.
Such Investor shall solely be responsible for the tax consequences that may arise as a result of such Investor’s acquisition
of the Securities being acquired by such Investor pursuant to this Agreement, the sale or other disposition of the Shares and performance
of this Agreement.


 


5.9           Prohibited
Transactions. Since the earlier of (a) such time as such Investor was first contacted by the Company or any other Person acting
on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither
such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares
discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments,
including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s
investments or trading (collectively, “Trading Affiliates”) has, and/or in the future, directly or indirectly, effected
or agreed to effect any short sale, whether or not against the box, established any “put equivalent position” (as defined
in Rule 16a-1(h) under the 1934 Act) with respect to the Common Stock, granted any other right (including, without limitation,
any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any
significant part of its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited
Transaction”). Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the
representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement,
such Investor has maintained the confidentiality of all disclosures made to it in connection with the Contemplated Transactions
(including the existence and terms of the Contemplated Transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing
contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of
the availability of, or securing of, available shares to borrow in order to effect any short sales or similar transactions in the
future. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.9 are being made
for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to
assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.9.


 



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5.10         Limitation
on Ownership. Investor understands that except as expressly provided in the Certificate of Designation and the Warrants, the
Investor shall not be entitled to convert the Preferred Stock or exercise Warrants for Common Stock if such conversion or exercise
would result in the Investor (together with the Investor’s affiliates) beneficially owning more than 4.99% of the outstanding
Common Stock after giving effect to such conversion or exercise. The Investor may increase the ownership limitation percentage
to 9.99% effective the 61st day after providing notice of such increase to the Company in writing. For the purposes of this Agreement,
beneficial ownership shall be determined in accordance with Section 13(d) of the 1934 Act, and Regulation 13d-3 thereunder.


 


6.           Conditions
to Closing.


 


6.1           Conditions
to the Investors’ Obligations. The obligation of each Investor to purchase the Shares and the Warrants at the Closing
is subject to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions,
any of which may be waived by such Investor (as to itself only):


 


(a)          The
representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at
all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an
earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations
and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material
respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks
as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such
earlier date. The Company shall have performed in all material respects all obligations and covenants herein required to be performed
by it on or prior to the Closing Date.


 



    	-18-



    	 



    

 


(b)          The
Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation
of the purchase and sale of the Securities and the consummation of the other transactions contemplated by the Transaction Documents,
all of which shall be in full force and effect.


 


(c)          The
Company shall have filed the Certificate of Designation with the Delaware Secretary of State.


 


(d)          The
Company shall have executed and delivered the Registration Rights Agreement.


 


(e)          No
judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy
court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have
been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby
or in the other Transaction Documents.


 


(f)          The
Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial
Officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (c) and
(e) of this Section 6.1.


 


(g)          The
Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying
the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and
the other Transaction Documents and the issuance of the Securities, certifying the current versions of the Certificate of Incorporation
and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related
documents on behalf of the Company.


 


(h)          The
Investors and the Placement Agent shall have received an opinion from counsel to the Company, dated as of the Closing Date, in
form and substance reasonable acceptable to the Placement Agent and addressing such legal matters as the Placement Agent may reasonably
request.


 


(i)          No
stop order or suspension of trading shall have been imposed by the OTC Pink Sheets, the SEC or any other governmental or regulatory
body with respect to public trading in the Common Stock.


 


(j)          On
or before the date hereof, the Company shall have delivered duly executed “lock-up” agreements, in a form set forth
on Exhibit F, from each of the individuals specified on Exhibit G.


 


6.2          Conditions
to Obligations of the Company. The Company’s obligation to sell and issue the Shares and the Warrants at the Closing
is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any
of which may be waived by the Company:


 



    	-19-



    	 



    

 


(a)          The
representations and warranties made by the Investors in Section 5 hereof, other than the representations and warranties contained
in Sections 5.3 through 5.10, Section 5.12, and Section 5.13 (the “Investment Representations”), shall be true and
correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the
same force and effect as if they had been made on and as of said date. The Investment Representations shall be true and correct
in all respects when made, and shall be true and correct in all respects on the Closing Date with the same force and effect as
if they had been made on and as of said date. The Investors shall have performed in all material respects all obligations and covenants
herein required to be performed by them on or prior to the Closing Date.


 


(b)          The
Investors shall have executed and delivered the Registration Rights Agreement.


 


(c)          The
Investors shall have delivered the Purchase Price to the Company.         


 


(d)          No
action, suit or proceeding shall have been commenced by any governmental authority against any party hereto seeking to restrain
or delay the purchase and sale of the Securities or the any other transactions contemplated by this Agreement.


 


6.3          Termination
of Obligations to Effect Closing; Effects.


 


(a)          The
obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows:


 


(i)          Upon
the mutual written consent of the Company and the Investors;


 


(ii)         By
the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been
waived by the Company;


 


(iii)        By
an Investor (with respect to itself only) if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment,
and shall not have been waived by the Investor; or


 


(iv)        By
either the Company or any Investor (with respect to itself only) if the Closing has not occurred on or prior to June 15, 2012;


provided, however, that, except in the
case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any
of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such
breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.


 



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7.           Covenants
and Agreements of the Company.


 


7.1           Reservation
of Common Stock. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common
Stock a sufficient number of shares of Common Stock for issuance of the Conversion Shares upon conversion of the Shares, for issuance
of the Dividend Shares upon distribution of a dividend on the Shares by the Company, and for issuance of the Warrant Shares upon
the exercise of the Warrants, free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth
in the Transaction Documents or imposed by applicable securities laws and except for those created by the Investors.


 


7.2           Reports.
The Company will furnish to the Investors and/or their assignees such information relating to the Company and its Subsidiaries
as from time to time may reasonably be requested by the Investors and/or their assignees; provided, however, that the Company shall
not disclose material nonpublic information to the Investors, or to advisors to or representatives of the Investors, unless prior
to disclosure of such information the Company identifies such information as being material nonpublic information and provides
the Investors, such advisors and representatives with the opportunity to accept or refuse to accept such material nonpublic information
for review and any Investor wishing to obtain such information enters into an appropriate confidentiality agreement with the Company
with respect thereto.


 


7.3           No
Conflicting Agreements. The Company will not take any action, enter into any agreement or make any commitment that would conflict
or interfere in any material respect with the Company’s obligations to the Investors under the Transaction Documents.


 


7.4           Insurance.
The Company shall not materially reduce the insurance coverages described in Section 4.19.


 


7.5           Compliance
with Laws. The Company will comply in all material respects with all applicable laws, rules, regulations, orders and decrees
of all governmental authorities.


 


7.6           Listing
of Conversion Shares and Related Matters. If the Company applies to have its Common Stock or other securities traded on any
stock exchange or market, it shall include in such application the Conversion Shares and the Warrant Shares and will take such
other action as is necessary to cause such Common Stock to be so listed. The Company will use commercially reasonable efforts to
continue the listing and trading of its Common Stock such exchange or market and, in accordance, therewith, will use commercially
reasonable efforts to comply in all respects with the Company’s reporting, filing and other obligations under the bylaws
or rules of such exchange or market, as applicable


 


7.7           Termination
of Covenants. The provisions of Sections 7.2


through 7.6 shall terminate and be of no further force and effect on the date on which the Company’s
obligations under the Registration Rights Agreement to register or maintain the effectiveness of any registration covering the
Registrable Securities (as such term is defined in the Registration Rights Agreement) shall terminate.


 



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7.8          Removal
of Legends. In connection with any sale or disposition of the Securities by an Investor pursuant to Rule 144 or pursuant to
any other exemption under the 1933 Act such that the purchaser acquires freely tradable shares and upon compliance by the Investor
with the requirements of this Agreement, the Company shall or, in the case of Common Stock, shall cause the transfer agent for
the Common Stock (the “Transfer Agent”) to issue replacement certificates representing the Securities sold or disposed
of without restrictive legends. Upon the earlier of (i) registration for resale pursuant to the Registration Rights Agreement or
(ii) the Shares, the Conversion Shares or the Warrant Shares becoming freely tradable by a non-affiliate pursuant to Rule 144,
the Company shall (A) deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall reissue a certificate
representing shares of the Preferred Stock, the Conversion Shares or the Warrant Shares, as the case may be, without legends upon
receipt by such Transfer Agent of the legended certificates for such shares, together with either (1) a customary representation
by the Investor that Rule 144 applies to such securities represented thereby or (2) a statement by the Investor that such Investor
has sold the such securities represented thereby in accordance with the Plan of Distribution contained in the Registration Statement,
and (B) cause its counsel to deliver to the Transfer Agent one or more blanket opinions to the effect that the removal of such
legends in such circumstances may be effected under the 1933 Act. From and after the earlier of such dates, upon an Investor’s
written request, the Company shall promptly cause certificates evidencing the Investor’s Securities to be replaced with certificates
which do not bear such restrictive legends, and Common Stock subsequently issued upon conversion of the Shares, upon payment of
a dividend on the Shares, or upon exercise of the Warrant Shares shall not bear such restrictive legends provided the provisions
of either clause (i) or clause (ii) above, as applicable, are satisfied with respect to such Common Stock. When the Company is
required to cause unlegended certificates to replace previously issued legended certificates, if unlegended certificates are not
delivered to an Investor within three (3) Business Days of submission by that Investor of legended certificate(s) to the Transfer
Agent as provided above (or to the Company, in the case of the Warrants), the Company shall be liable to the Investor for liquidated
damages in an amount equal to 1.5% of the aggregate purchase price of the Securities evidenced by such certificate(s) for each
thirty (30) day period (or portion thereof) beyond such three (3) Business Day that the unlegended certificates have not been so
delivered.


 


7.9          Variable
Securities. From the date hereof through the sixtieth (60th) day after the Effective Date (the “Lock-Up Period), the
Company shall not, without the consent of the Requisite Holders (as defined in Section 9.6), in any manner, issue or sell any rights,
warrants or options to subscribe for or purchase Common Stock or directly or indirectly convertible into or exchangeable or exercisable
for Common Stock at a price which varies or may vary with the market price of the Common Stock, including by way of one or more
reset(s) to any fixed price unless the conversion, exchange or exercise price of any such security cannot be less than the then
applicable Conversion Price (as defined in the Shares) with respect to the Common Stock into which any Share is convertible.


 


7.10        Additional
Issuances of Securities.


 


(a)          For
purposes of this Section 7.10, the following definitions shall apply.


 


(i)          “Convertible
Securities” means any stock or securities (other than Options) convertible into or exercisable or exchangeable for shares
of Common Stock.


 



    	-22-



    	 



    

 


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


 


(iii)        “Common
Stock Equivalents” means, collectively, Options and Convertible Securities.


 


(b)          From
the date hereof until the date that is sixty (60) days following the Effective Date (the “Trigger Date”), the Company
will not, directly or indirectly, file any registration statement with the SEC other than the Registration Statement. From the
date hereof until the Trigger Date, without the consent of the Requisite Holders (as defined in Section 9.6), the Company will
not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant
or any option to purchase or other disposition of) any of its or its Subsidiaries’ equity or equity equivalent securities,
including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and
under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents
(any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding
the foregoing, at any time following the thirtieth (30th) day after the Closing, the Company shall be allowed, subject
to complying with clause (c) below, to complete a Subsequent Placement(s) of up to an aggregate of $5.0 million; provided, that,
without the consent of the holders of at least a majority of the aggregate number of Registrable Securities (as defined in the
Registration Rights Agreement)(the “Requisite Holders”), the Company shall not be entitled to file a registration statement
covering the securities sold in such placement(s) until at least ninety (90) days following the Trigger Date.


 


(c)          From
the Closing Date until the first anniversary of the Effective Date, the Company will not, directly or indirectly, effect any Subsequent
Placement unless the Company shall have first complied with this Section 7.10.


 


(i)          The
Company shall deliver to each Investor who purchased at least $200,000 of Shares hereunder, 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 (w) identify and describe the
Offered Securities, (x) 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, (y) identify the persons or entities (if known) to which
or with which the Offered Securities are to be offered, issued, sold or exchanged and (z) offer to issue and sell to or exchange
with such Investors at least fifty percent (50%) of the Offered Securities, allocated among such Investors (a) based on such Investor’s
pro rata portion of the aggregate principal amount of Units purchased hereunder (the “Basic Amount”), and (b) with
respect to each Investor that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable
to the Basic Amounts of other Investors as such Investor shall indicate it will purchase or acquire should the other Investors
subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until
the Investors shall have an opportunity to subscribe for any remaining Undersubscription Amount.


 



    	-23-



    	 



    

 


(ii)         To
accept an Offer, in whole or in part, such Investor must deliver a written notice to the Company prior to the end of the fifth
(5th) Business Day after such Investor’s receipt of the Offer Notice (the “Offer Period”), setting
forth the portion of such Investor’s Basic Amount that such Investor elects to purchase and, if such Investor shall elect
to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Investor elects to purchase (in either case,
the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Investors are less than the total of all of
the Basic Amounts, then each Investor 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, that 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 Investor 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 Investor bears to the total Basic Amounts of all Investors that have subscribed for Undersubscription Amounts, subject
to rounding by the Company to the extent its deems reasonably necessary. Notwithstanding the foregoing, if the Company desires
to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to
the Investors a new Offer Notice and the Offer Period shall expire on the third (3rd) Business Day after such Investor’s
receipt of such new Offer Notice.


 


(iii)        The
Company shall have ten (10) Business Days from the expiration of the Offer Period above (i) 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 the Investors (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 more favorable to the acquiring person or persons or less favorable to the Company than
those set forth in the Offer Notice and (ii) to publicly announce (a) the execution of such Subsequent Placement Agreement, and
(b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) 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 above, then each Investor 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 Investor elected to purchase pursuant to Section 7.10(c)(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 Investors pursuant to Section 7.10(c)(iii) above prior to such reduction) and (ii) the
denominator of which shall be the original amount of the Offered Securities. In the event that any Investor 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 Investors
in accordance with Section 7.10(c)(i) above.


 



    	-24-



    	 



    

 


(v)         Upon
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Investors shall acquire from
the Company, and the Company shall issue to the Investors, the number or amount of Offered Securities specified in the Notices
of Acceptance, as reduced pursuant to Section 7.10(c)(iv) above if the Investors have so elected, upon the terms and conditions
specified in the Offer. Notwithstanding anything to the contrary contained in this Agreement, if the Company does not consummate
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, within fifteen (15) Business Days
of the expiration of the Offer Period, the Company shall issue to the Investors, the number or amount of Offered Securities specified
in the Notices of Acceptance, as reduced pursuant to Section 7.10(c)(iv) above if the Investors have so elected, upon the terms
and conditions specified in the Offer. The purchase by the Investors of any Offered Securities is subject in all cases to the preparation,
execution and delivery by the Company and the Investors of a purchase agreement relating to such Offered Securities reasonably
satisfactory in form and substance to the Investors and their respective counsel.


 


(vi)        Any
Offered Securities not acquired by the Investors or other persons in accordance with Section 7.10(c)(iii) above may not be issued,
sold or exchanged until they are again offered to the Investors under the procedures specified in this Agreement.


 


(vii)       The
Company and the Investors agree that if any Investor 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 provisions whereby any Investor shall be required to agree to any restrictions in trading as to any securities
of the Company owned by such Investor prior to such Subsequent Placement, 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 7.10 and unless otherwise agreed to by the Investors, the Company shall either confirm
in writing to the Investors 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 the Investors will not be in
possession of material non-public information, by the fifteen (15th) Business Day following delivery of the Offer Notice.
If by the fifteen (15th) following delivery of the Offer Notice 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 the Investors,
such transaction shall be deemed to have been abandoned and the Investors shall not be deemed to be in possession of any material,
non-public information with respect to the Company. Should the Company decide to pursue such transaction with respect to the Offered
Securities, the Company shall provide each Investor with another Offer Notice and each Investor will again have the right of participation
set forth in this Section 7.10. The Company shall not be permitted to deliver more than one such Offer Notice to the Investors
in any sixty (60) day period.


 



    	-25-



    	 



    

 


(ix)         The
restrictions contained in subsections (b) and (c) of this Section 7.10 shall not apply in connection with the issuance of any Excluded
Securities.


 


7.11         No
Reverse Stock Splits. During the period commencing on the date hereof and ending on the second anniversary of the Closing Date,
the Company shall not, without the prior written consent of the Requisite Holders (as defined in Section 9.6), consummate or announce
a reverse stock split with respect to its Common Stock.


 


8.          Survival
and Indemnification.


 


8.1           Survival.
The representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing of the transactions
contemplated by this Agreement.


 


8.2           Indemnification.
The Company agrees to indemnify and hold harmless each Investor and its Affiliates and the Placement Agent and their respective
directors, officers, employees and agents from and against any and all losses, claims, damages, liabilities and expenses (including
without limitation reasonable attorney fees and disbursements and other expenses incurred in connection with investigating, preparing
or defending any action, claim or proceeding, pending or threatened and the costs of enforcement thereof) (collectively, “Losses”)
to which such Person may become subject as a result of any breach of representation, warranty, covenant or agreement made by or
to be performed on the part of the Company under the Transaction Documents, and will reimburse any such Person for all such amounts
as they are incurred by such Person; provided, however, that such indemnifiable Losses shall not exceed the amount representing
such Investor’s pro rata portion of the Purchase Price as set forth on the signature pages to this Agreement.


 



    	-26-



    	 



    

 


8.3           Conduct
of Indemnification Proceedings. Any person entitled to indemnification hereunder shall (i) give prompt notice
to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any person
entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party has agreed
to pay such fees or expenses, or (b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based upon written advice of its counsel,
a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the
person notifies the indemnifying party in writing that such person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and provided,
further, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying
party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. No indemnifying party will, except with the consent of the indemnified party, consent to
entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation.


 


9.          Miscellaneous.


 


9.1           Successors
and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investors,
as applicable; provided, however, that an Investor may assign its rights and delegate its duties hereunder in whole or in part
to an Affiliate or to a third party acquiring some or all of the Securities in a transaction complying with applicable securities
laws without the prior written consent of the Company or the other Investors. The provisions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.


 


9.2           Counterparts;
Faxes. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also be executed via facsimile, which shall be deemed
an original.


 


9.3           Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.


 


9.4           Notices.
Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery, then such notice shall be deemed given upon such
delivery, (ii) if given by telex or telecopier, then such notice shall be deemed given upon receipt of confirmation of complete
transmittal, (iii) if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail, postage prepaid, and (iv) if given by an internationally
recognized overnight air courier, then such notice shall be deemed given one Business Day after delivery to such carrier. All notices
shall be addressed to the party to be notified at the address as follows, or at such other address as such party may designate
by ten days’ advance written notice to the other party:


 



    	-27-



    	 



    

 


If to the Company:


 


8884 Venice Boulevard


Los Angeles, CA 90034


Attention: Braden Richter


Telephone No.: 713-862-3000


Telecopier No.:


 


with a copy to:


 


Anslow & Jaclin LLP


196 Route 9 South


Manalapan, NJ 07726


Attention: Richard Anslow, Esq.


Telephone No.: 732-409-1212


Telecopier No.: 732-577-1188


 


If to the Investors:


 


to the addresses set forth on the signature
pages hereto.


 


9.5           Expenses.
The parties to this Agreement shall pay their own costs and expenses in connection herewith, except that the Company shall pay
the reasonable fees and expenses of Lowenstein Sandler PC, counsel to the Placement Agent, not to exceed $30,000.


 


9.6           Amendments
and Waivers. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and
the Requisite Holders, and any amendment to this Agreement made in conformity with the provisions of this Section 9.6 shall be
binding on all Investors and holders of Securities as applicable. No provision hereof may be waived other than by an instrument
in writing signed by the party against whom enforcement is sought. No consideration 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 or the holders of the Securities, as the case may be.


 


9.7           Publicity.
Except as set forth below, no public release or announcement concerning the transactions contemplated hereby shall be issued by
the Company or the Investors without the prior consent of the Company (in the case of a release or announcement by the Investors)
or the Investors (in the case of a release or announcement by the Company) (which consents shall not be unreasonably withheld),
except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange
or securities market, in which case the Company or the Investors, as the case may be, shall allow the Investors or the Company,
as applicable, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement
in advance of such issuance. By 8:30 a.m. (New York City time) on the trading day immediately following the execution of this Agreement,
the Company shall issue a press release disclosing the consummation of the transactions contemplated by this Agreement and file
a Current Report on Form 8-K attaching the press release described in the foregoing sentence as well as copies of the Transaction
Documents. In addition, the Company will make such other filings and notices in the manner and time required by the SEC. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Investor, or include the name of any Investor in any filing
with the SEC (other than the Registration Statement and any exhibits to filings made in respect of this transaction in accordance
with periodic filing requirements under the 1934 Act) or any regulatory agency, without the prior written consent of such Investor,
except to the extent such disclosure is required by law or trading market regulations, in which case the Company shall provide
the Investors with prior notice of such disclosure.


 



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9.8           Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted
as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable
in any respect.


 


9.9           Entire
Agreement. This Agreement, including the Exhibits and the Disclosure Schedules, and the other Transaction Documents constitute
the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof.


 


9.10         Further
Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions
as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements
herein contained.


 


9.11         Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York without regard to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District
Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices
under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action
or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue
of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST
A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS
TO THIS WAIVER.


 



    	-29-



    	 



    

 


9.12         Independent
Nature of Investors’ Obligations and Rights. The obligations of each Investor
under any Transaction Document 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 any Transaction Document. The decision of each Investor
to purchase Securities pursuant to the Transaction Documents has been made by such Investor independently of any other Investor.
Nothing contained herein or in any Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed
to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Investor acknowledges that no other Investor has acted as agent for such Investor in connection
with making its investment hereunder and that no Investor will be acting as agent of such Investor in connection with monitoring
its investment in the Securities or enforcing its rights under 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 the 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 Company acknowledges that each of the Investors has been provided with the same Transaction Documents for the purpose
of closing a transaction with multiple Investors and not because it was required or requested to do so by any Investor.


 


[signature pages follow]


  



    	-30-



    	 



    

 


IN WITNESS WHEREOF,
the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first
above written.


 


	The Company:	LUXEYARD, INC.
	 	 
	 	By: 	/s/ Braden Richter
	 	Name: Braden Richter
	 	Title:   Chief Executive Officer


 


Signature Page to Securities Purchase Agreement


 



    	 



    	 



    

 


The Investors:


 


	 	By:	 
	 	Name:
	 	Title:


 


	Aggregate Purchase Price:	$	 
	Number of Units:	 	 
	Number of Shares:	 	 
	Number of Series C Warrants:	 	 
	Number of Series D Warrants:	 	 
	Number of Series E Warrants:	 	 


 


	Address for Notice:	 
	 	 
	 	 
	 	 


 


Signature Page to Securities Purchase Agreement 


 



    	 



    	 



    

 


EXHIBIT A –SERIES C WARRANT


 



    	 



    	 



    

 


EXHIBIT B –SERIES D WARRANT


 



    	 



    	 



    

 


EXHIBIT C –SERIES E WARRANT


 


 



    	 



    	 



    

 


EXHIBIT D – REGISTRATION RIGHTS
AGREEMENT 


 



    	 



    	 



    

 


EXHIBIT E – CERTIFICATE OF DESIGNATION


 



    	 



    	 



    

 


EXHIBIT F – LOCK UP 


 



    	 



    	 



    

 


EXHIBIT G – PERSONS SUBJECT TO
LOCKUP


 


Sunrise Securities


Jason Lyons


Firerock Capital Inc.


Pondel Wilkinson Inc.


Braden Richter


Alidad Mireskandari


Talisman Capital Fund Ltd