Exhibit 10.1


 


EXCHANGE AGREEMENT


 


EXCHANGE AGREEMENT
(the “Agreement”) is made as of the 2nd day of October 2016, by and between, Great Basin Scientific, Inc., a
Delaware corporation (the “Company”), and the investor signatory hereto (the “Investor”).


 


WHEREAS, reference
is hereby made to (a) that certain Securities Purchase Agreement, dated December 28, 2015, by and among the Company, the Investor
and certain other buyers signatory thereto (the “2015 SPA”), pursuant to which the Investor and such other buyers
acquired (i) senior secured convertible notes (the “2015 Notes”) and (ii) warrants to acquire shares of the
Company's common stock, par value $0.0001 per share (the ”Common Stock”) (the “2015 Warrants”),
(b) that certain Securities Purchase Agreement, dated June 29, 2016, by and among the Company, the Investor and certain other buyers
signatory thereto (the “2016 SPA” and together with the 2015 SPA, each, an “SPA” and collectively,
the “SPAs”), pursuant to which the Investor and such other buyers acquired (i) senior secured convertible notes
(the “2016 Notes”) and (ii) warrants to acquire shares of Common Stock (the “2016 Warrants”).
Capitalized terms not defined herein shall have the meaning as set forth in the 2015 SPA and/or 2015 Notes, as applicable, and
(c) that certain leak-out agreement, dated September 19, 2016, by and between the Company and the Investor (the “Leak-Out
Agreement”).


 


WHEREAS, in
exchange for the aggregate principal amount of the 2015 Notes outstanding as of the Closing Date (as defined below) (together with
any accrued and unpaid interest thereon, the “Exchange Note”), the Company desires to issue to the Investor
(a) such aggregate number of shares of Common Stock (the “Exchange Shares”) equal to the lesser of (i) the quotient
of (x) the aggregate principal amount of the Exchange Note as of the Closing Date divided by (y) the Exchange Price (as defined
below) (the “Maximum Share Amount”) and (ii) such aggregate number of shares of Common Stock equal to Maximum
Percentage of Common Stock outstanding as of the Exchange Date (the “Blocker Share Amount”) and (b) solely if
the Blocker Share Amount is less than the Maximum Share Amount, a right to receive, subject to the terms and conditions set forth
herein, from time to time (such right of the Investor, the “Right”), such aggregate number of shares of Common
Stock obtained by subtracting (x) the Blocker Shares Amount, from (y) the Maximum Share Amount (the “Right Share Amount”,
and such shares of Common Stock, the “Right Shares”).


 


WHEREAS, the
exchange of the Exchange Note for the Exchange Shares and, if applicable, the Right is being made in reliance upon the exemption
from registration provided by Section 4(a)(2) and Rule 144(d)(3)(ii) of the Securities Act of 1933, as amended (the “1933
Act”).


 


WHEREAS, concurrently
herewith, the Company is entering into agreements with holders of 2015 Notes representing at least the Required Holders (as defined
in the 2015 Notes) (each, an “Other Investor”, and such agreements, each an “Other Agreement”)
substantially in the form of this Agreement (other than with respect to the identity of the Investor, any provision regarding the
reimbursement of legal fees and proportional changes reflecting the different aggregate principal amount of the 2015 Notes and
Right Shares of such Other Investor then outstanding).


 




     


     


    

 


NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the
promises and the mutual agreements, representations and warranties, provisions and covenants contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:


 


1.          Exchange.
On the Closing Date (as defined below), subject to the terms and conditions of this Agreement, the Investor shall, and the Company
shall, pursuant to Section 4(a)(2) and Rule 144(d)(3)(ii) of the 1933 Act, exchange the Exchange Note for the Exchange Shares and,
if applicable, the Right. At the Closing (as defined below), the following transactions shall occur (such transactions in this
Section 1, the “Exchange”):


 


1.1           As
of the Closing Date, the Exchange Note shall be free and clear of all Liens. Upon receipt of the Exchange Shares in accordance
with Section 1.2 and, if applicable, the creation of the Right hereunder as of the Closing Date, all of the Investor’s rights
under the Exchange Note shall be extinguished (including, without limitation, the rights to receive any accrued and unpaid interest
thereon or any other shares of Common Stock with respect thereto).


 


1.2           On
or prior to the third (3rd) Trading Day after the Closing Date, the Company shall credit the Exchange Shares to the Investor or
its designee’s balance account with the Depository Trust Company (“DTC”) in accordance with the DTC instructions
delivered by the Investor in writing to the Company on or prior to the Closing Date. On the Closing Date, the Investor shall be
deemed for all corporate purposes to have become the holder of record of the Exchange Shares and, if applicable, the Right, irrespective
of the date such Exchange Shares are credited to the Investor’s or its designee’s balance account with DTC in accordance
herewith.


 


1.3           The
Company and the Investor shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary
to effectuate the Exchange.


 


1.4           For
purposes of this Agreement, “Exchange Price” means 85% of the lowest daily Weighted Average Price of the Common
Stock during the five (5) consecutive Trading Days ending and including the Trading Day immediately prior to the Closing Date (with
all such determinations to be appropriately adjusted for any stock split, stock dividend, stock combination, reclassification or
other similar transaction during such applicable period and as such Exchange Price may be further adjusted for any stock split,
stock dividend, stock combination, reclassification or other similar transaction occurring on or after the Closing Date).


 




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2.           Voluntary
Reduction Notice; Waivers; Release; Leak-Out Amendment.


 


2.1           Voluntary
Reduction Notice. Effective as of the date the holders of 2015 Notes representing at least the Required Holders (as defined
in the 2015 Notes) shall have executed either this Agreement or an Other Agreement (the “Effective Date”), pursuant
to Section 7(d) of the 2015 Notes, the Company hereby elects to lower (but in no event increase) the Conversion Price of each of
the 2015 Notes of the Investor and each Other Investor with respect to any given Trading Day during the period (the “Voluntary
Reduction Period”, and any such reduction, each a “Voluntary Reduction”) commencing on the Effective
Date, through and including November 17, 2016, to the Alternate Conversion Price (as defined below) for such Trading Day. For the
purpose of this Section 2.1, the “Alternate Conversion Price” for any given Trading Day during the Voluntary
Reduction Period shall equal 85% of the lowest daily Weighted Average Price of the Common Stock during the five (5) consecutive
Trading Days ending and including such given Trading Day (with all such determinations to be appropriately adjusted for any stock
split, stock dividend, stock combination, reclassification or other similar transaction during such applicable period and as such
Alternate Conversion Price may be further adjusted for any stock split, stock dividend, stock combination, reclassification or
other similar transaction occurring on or after such Trading Day).


 


2.2         Waivers


 


(a)          Effective
as of the Effective Date, the Investor hereby waives any reduction in: (i) the exercise price of its 2015 Warrants pursuant to
Section 2(a) thereof, (ii) the exercise price of its 2016 Warrants pursuant to Section 2(a) thereof and (iii) the conversion price
of its 2016 Notes pursuant to Section 7(a) thereof, in each case, solely as a result of any Voluntary Reduction pursuant to Section
2.1 hereof.


 


(b)          Effective
as of the Effective Date, the Investor hereby elects pursuant to Section 8(d) of the 2015 Notes to defer the Installment Amount
with respect to the Investor's 2015 Notes with respect to the Installment Date occurring thereunder on November 30, 2016 until
the Installment Date of December 30, 2016 (including, without limitation, any rights to receive pre-delivery of shares of Common
Stock with respect to such Installment Amount on or prior to December 1, 2016).


 


(c)          Effective
as of the Effective Date, the 2015 Notes are hereby amended to add a new Section 8(g) at the end of Section 8 of the 2015 Notes
that provides as follows:


 


"(g)        October
31, 2016 Installment Date. Notwithstanding Section 8(d) to the contrary, the portion of the Installment Amount due on the October
31, 2016 Installment Date equal to the product obtained by multiplying (x) the number of Pre-Installment Conversion Shares delivered
by the Company to the Holder with respect to such Installment Date and (y) the Company Conversion Price as in effect on such Installment
Date, shall not be allowed to be deferred by the Holder to a later Installment Date."


 


(d)          Effective
as of the Effective Date, the Investor waives any right pursuant to Section 8(e) of the 2015 Notes to deliver any Acceleration
Notice during the period commencing on the Effective Date and ending on December 1, 2016, inclusive, with respect to the Installment
Amount due on the November 30, 2016 Installment Date.


 




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(e)          Effective
as of the Effective Date, the Investor hereby waives the notice provisions Section 4(n) of each SPA, solely with respect to the
transactions contemplated by this Agreement and each Other Agreement (the “Right of Participation Waiver”).



 


2.3          Release.
The Investor shall cause: (i) $[●]1 to be transferred, on or prior to the Effective Date, from the Investor’s
Holder Master Restricted Account with respect to the 2015 Notes to the operating account of the Company and (ii) any remaining
amounts in such Investor’s Holder Master Restricted Account with respect to the 2015 Notes shall be transferred, on or prior
to the later of (x) November 1, 2016 and (y) the Effective Date, to the operating account of the Company, in each case, pursuant
to written instructions provided by the Company at least one (1) Business Day prior to the applicable deadline; provided,
however, that the obligation of the Investor to release such cash to the Company pursuant to this Section 2.3 is subject
to the fulfillment, to the Investor's reasonable satisfaction, prior to the applicable Release Date, of each of the following
conditions:


 


(a)         No
Event of Default. On each Trading Day during the twenty (20) Trading Days immediately preceding the applicable Release Date,
no Event of Default or event that with the passage of time or giving of notice would constitute an Event of Default shall have
occurred (unless waived in writing by the Required Holders (as defined in the 2015 Notes)).


 


(b)         Minimum
Volume. Unless waived in writing by the Required Holders (as defined in the 2015 Notes), the daily dollar trading volume of
the Common Stock as reported by Bloomberg for each Trading Day during the twenty (20) consecutive Trading Days immediately preceding
the applicable Release Date shall be at least $100,000.


 


(c)          Listing.
On each Trading Day during the twenty (20) Trading Days immediately preceding the applicable Release Date, the Common Stock (I)
shall be designated for quotation or listed on an Eligible Market and (II) shall not have been suspended.


 


(d)          No
Material Non-Public Information. As of the applicable Release Date, the Investor shall not be in possession of any material,
nonpublic information received from the Company, any Subsidiary or its respective agents or Affiliates.


 


(e)          No
Public Information Failure. As of the applicable Release Date, the Company shall have no knowledge of any fact that would cause
any Exchange Shares or, upon exercise of any Right, any Right Shares (without regard to any restriction or limitation on exercise
of the Right), not to be eligible for sale pursuant to (i) Rule 144 without any volume limitation by the Investor (including, without
limitation, by virtue of an existing or expected Public Information Failure) or (ii) any applicable state securities laws.


 


 









1 Insert the lower of (A) product of (i) $3,500,000
and (ii) a fraction, (x) the numerator of which equals the Investor's remaining amount in its Holder Master Restricted Account
and (y) the denominator of which equals the sum of the remaining amounts in all Holder Master Restricted Accounts of the Investor
and the Other Investors and (B) the remaining balance in the Investor's Holder Master Restricted Account.







 




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As used herein, "Release Date"
means the Effective Date and November 1, 2016, as applicable, on which the Investor is required, subject to the satisfaction (or
waiver in writing by the investor) of the foregoing conditions, to release cash from the Investor's Holder Master Restricted Account
to the Company pursuant to this Section 2.3.


 


2.4         Leak-Out
Amendment. As of the Effective Date the Leak-Out Agreement is hereby amended as follows:


 


(a)          The
percentage set forth in paragraph 3 of the Leak-Out Agreement, representing the Investor’s (together with its Buyer Trading
Affiliates) pro rata share of 35% (measured based upon the aggregate principal amount of 2015 Notes initially purchased by the
Investor and its Buyer Trading Affiliates), shall be amended and restated as such percentage as set forth on the signature page
of the Investor attached hereto, representing 40% of the Investor’s (together with its Buyer Trading Affiliates) pro rata
share of aggregate principal amount of the 2015 Notes as of the date hereof.


 


(b)          Notwithstanding
anything in the Leak-Out Agreement to the contrary, the Restricted Period (as defined in the Leak-Out Agreement) shall not include
the period commencing on and including October 17, 2016 and ending and including October 21, 2016.


 


3.          The
Closing(s). Subject to the conditions set forth below, the Exchange shall take place at the offices of Kelley Drye & Warren
LLP, 101 Park Avenue, New York, NY 10178, on the later to occur of (x) November 18, 2016 and (y) the Effective Date, or at such
other time and place as the Company and the Investor mutually agree (the “Closing” and the “Closing
Date”).


 


4.          Closing
Conditions.


 


4.1         Condition’s
to Investor’s Obligations. The obligation of the Investor to consummate the Exchange is subject to the fulfillment, to
the Investor’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions:


 


(a)          Representations
and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct in
all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect,
which are accurate in all respects) on the date hereof and on and as of the Closing Date as if made on and as of such date (except
for representations and warranties that speak as of a specific date, which are accurate in all material respects (except for those
representations and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects)
as of such specified date).


 


(b)          Issuance
of Securities. At the Closing, the Company shall issue the Exchange Shares and the Right on the books and records of the Company.


 




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(c)        No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit or obtain substantial damages
in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.


 


(d)        Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Investor, and the Investor shall have received all such
counterpart originals or certified or other copies of such documents as they may reasonably request.


 


(e)         No
Event of Default. On each Trading Day during the twenty (20) Trading Days immediately preceding the Closing Date, no Event
of Default or event that with the passage of time or giving of notice would constitute an Event of Default shall have occurred
(unless waived in writing by the Required Holders (as defined in the 2015 Notes)).


 


(f)         Minimum
Volume. Unless waived in writing by the Required Holders (as defined in the 2015 Notes), the quotient of (x) the sum of each
daily dollar trading volume of the Common Stock as reported by Bloomberg for each Trading Day during the twenty (20) consecutive
Trading Days immediately preceding the Closing Date, divided by (y) twenty (20) shall be at least $300,000.


 


(g)        Listing.
On each Trading Day during the twenty (20) Trading Days immediately preceding the Closing Date, the Common Stock (I) shall be designated
for quotation or listed on an Eligible Market and (II) shall not have been suspended.


 


(h)          No
Material Non-Public Information. As of the Closing Date, the Investor shall not be in possession of any material, nonpublic
information received from the Company, any Subsidiary or its respective agents or Affiliates.


 


(i)        No
Public Information Failure. As of the Closing Date, the Company shall have no knowledge of any fact that would cause any Exchange
Shares or, upon exercise of any Right, any Right Shares (without regard to any restriction or limitation on exercise of the Right),
not to be eligible for sale pursuant to (i) Rule 144 without any volume limitation by the Investor (including, without limitation,
by virtue of an existing or expected Public Information Failure) or (ii) any applicable state securities laws.


 


4.2         Condition’s
to the Company’s Obligations. The obligation of the Company to consummate the Exchange is subject to the fulfillment,
to the Company’s reasonable satisfaction, prior to or at the Closing in question, of each of the following conditions:


 


(a)          Representations
and Warranties. The representations and warranties of the Investor contained in this Agreement shall be true and correct in
all material respects (except for those representations and warranties that are qualified by materiality or material adverse effect,
which are accurate in all respects) on the date hereof and on and as of the Closing Date as if made on and as of such date (except
for representations and warranties that speak as of a specific date, which are accurate in all material respects (except for those
representations and warranties that are qualified by materiality or material adverse effect, which are accurate in all respects)
as of such specified date).


 




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(b)          Waiver.
The Company shall have obtained the waiver of the Right of Participation Waiver of the Investor and all Other Investors.


 


(c)          No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit, or obtain substantial damages
in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.


 


(d)          Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Company and the Company shall have received all such counterpart
originals or certified or other copies of such documents as the Company may reasonably request.


 


5.            Representations
and Warranties of the Company. The Company hereby represents and warrants to Investor that:


 


5.1           Organization,
Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company is duly qualified to transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a Material Adverse Effect (as defined below) on its business or properties. As used
in this Agreement, “Material Adverse Effect” means any material adverse effect on the business, properties,
assets, liabilities, operations, results of operations, condition (financial or otherwise) or prospects of the Company and its
Subsidiaries, if any, individually or taken as a whole, or on the transactions contemplated hereby or on the Transaction Documents
(as defined below) or by the agreements and instruments to be entered into (or entered into) in connection herewith or therewith,
or on the authority or ability of the Company to perform its obligations under this Agreement or the Transaction Documents.


 


5.2           Authorization.
All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement and the performance of all obligations of the Company hereunder and thereunder, and the authorization
(or reservation for issuance), the Exchange, and the issuance of the Exchange Shares, the Right and, upon exercise of the Right,
the Right Shares (collectively, the “Securities”) have been taken on or prior to the date hereof.


 


5.3           Valid
Issuance of the Securities. The Exchange Shares and Right Shares when issued and delivered in accordance with the terms of
this Agreement, for the consideration expressed herein, will be duly and validly issued, fully paid and non-assessable. The Right
when issued in accordance with the terms of this Agreement, for the consideration expressed herein, will be duly and validly issued.
The Exchange Shares and, upon exercise of the Right, the Right Shares are freely tradeable and shall not be required to bear any
1933 Act or other restrictive legend. The Company agrees to take all actions, including, without limitation, the issuance by its
legal counsel of any necessary legal opinions, necessary to issue unrestricted Exchange Shares and Right Shares, if any, that are
freely tradable on the principal Eligible Market on which the Common Stock then trades without restriction and not containing any
restrictive legend without the need for any action by the Investor.


 




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5.4           Offering.
The offer and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of the
1933 Act and the qualification or registration requirements of state securities laws or other applicable blue sky laws. The Company
represents and warrants that neither it nor any Person acting on its behalf, has directly or indirectly paid or given any commission
or other remuneration for soliciting the transactions contemplated by this Agreement. Neither the Company nor any authorized agent
acting on its behalf will take any action hereafter that would cause the loss of such exemptions.


 


5.5           Compliance
With Laws. The Company has not violated any law or any governmental regulation or requirement which violation has had or would
reasonably be expected to have a Material Adverse Effect, and the Company has not received written notice of any such violation.


 


5.6           Consents;
Waivers. No consent, waiver, approval or authority of any nature, or other formal action, by any Person, not already obtained,
is required in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of
the transactions provided for herein and therein.


 


5.7           Acknowledgment
Regarding Investor’s Purchase of Securities. The Company acknowledges and agrees that the Investor is acting solely in
the capacity of arm’s length purchaser with respect to this Agreement and the other documents entered into in connection
herewith (collectively, the “Transaction Documents”) and the transactions contemplated hereby and thereby and
that the Investor is not (i) an officer or director of the Company, (ii) an “affiliate” of the Company (as defined
in Rule 144 promulgated under the 1933 Act), or (iii) to the knowledge of the Company, a “beneficial owner” of more
than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to
the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by the Investor or any of
its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby
is merely incidental to the Investor’s acceptance of the Exchange Shares and the Right, if any. The Company further represents
to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives.


 




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5.8          Absence
of Litigation. Except as set forth in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company,
threatened against or affecting the Company, the Common Stock, the Exchange Note or any of the Company’s officers or directors
in their capacities as such.


 


5.9           No
Group. The Company acknowledges that, to the Company’s knowledge, the Investor is acting independently in connection
with this Agreement and the transactions contemplated hereby, and is not acting as part of a “group” as such term is
defined under Section 13(d) of the 1933 Act and the rules and regulations promulgated thereunder.


 


5.10         Validity;
Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Company is a party have been duly and
validly authorized, executed and delivered on behalf of the Company and shall constitute the legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution,
delivery and performance by the Company of this Agreement and each Transaction Document to which the Company is a party and the
consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational
documents of the Company or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company is a party or by which it is bound, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities or “blue sky” laws) applicable to the
Company, except in the case of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.


 


5.11         Disclosure.
Other than as set forth in the 8-K Filing (as defined below), the Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor or its agents or counsel with any information that constitutes or could reasonably be expected
to constitute material, nonpublic information. The Company understands and confirms that the Investor will rely on the foregoing
representations in effecting transactions in the Exchange Securities.


 


5.12         Capitalization.
As of September 30, 2016, the Company has 2,520,215 shares of Common Stock issued and outstanding.


 


6.            Representations
and Warranties of the Investor. The Investor hereby represents, warrants and covenants that:


 


6.1           Authorization.
The Investor has full power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and has taken all action necessary to authorize the execution and delivery of this Agreement,
the performance of its obligations hereunder and the consummation of the transactions contemplated hereby.


 




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6.2           Accredited
Investor Status; Investment Experience. The Investor is an “accredited investor” as that term is defined in Rule
501(a) of Regulation D. The Investor can bear the economic risk of its investment in the Securities, and has such knowledge and
experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Securities.


 


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


 


6.4           Validity;
Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Investor is a party have been duly and
validly authorized, executed and delivered on behalf of the Investor and shall constitute the legal, valid and binding obligations
of the Investor enforceable against the Investor in accordance with their respective terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution,
delivery and performance by the Investor of this Agreement and each Transaction Document to which the Investor is a party and the
consummation by the Investor of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational
documents of the Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities or “blue sky” laws) applicable to the Investor, except in the case
of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the ability of the Investor to perform its obligations hereunder.


 


6.5           Ownership
of Original Note. The Investor owns and holds, beneficially and of record, the entire right, title, and interest in and to
the Exchange Note free and clear of all rights and Liens (other than pledges or security interests (x) arising by operation of
applicable securities laws and (y) that the Investor may have created in favor of a prime broker under and in accordance with its
prime brokerage agreement with such broker). The Investor has full power and authority to transfer and dispose of the Exchange
Note to the Company free and clear of any right or Lien. Other than the transactions contemplated by this Agreement, there is no
outstanding vote, plan, pending proposal, or other right of any Person to acquire all or any part of the Exchange Note or any shares
of Common Stock issuable upon conversion of the Exchange Note.


 




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7.            Additional
Covenants


 


7.1           Disclosure.
The Company shall, on or before 8:30 a.m., New York City time, on the first business day after the date of this Agreement, issue
a press release and/or Current Report on Form 8-K (collectively, the “8-K Filing”) disclosing all material terms
of the transactions contemplated hereby. From and after the issuance of the 8-K Filing, the Investor shall not be in possession
of any material, nonpublic information received from the Company or any of its Subsidiaries or any of their respective officers,
directors, employees, affiliates or agents, that is not disclosed in the 8-K Filing. The Company shall not, and shall cause its
officers, directors, employees, affiliates and agents, not to, provide the Investor with any material, nonpublic information regarding
the Company from and after the filing of the 8-K Filing without the express written consent of the Investor. To the extent that
the Company delivers any material, non-public information to the Investor without the Investor's express prior written consent,
the Company hereby covenants and agrees that the Investor shall not have any duty of confidentiality to the Company, any of its
Subsidiaries or any of their respective officers, directors, employees, affiliates or agent with respect to, or a duty to the to
the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agent or not to trade
on the basis of, such material, non-public information. The Company shall not disclose the name of the Investor in any filing,
announcement, release or otherwise, unless such disclosure is required by law or regulation. In addition, effective upon the filing
of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of its subsidiaries or any of their respective officers, directors, affiliates,
employees or agents, on the one hand, and the Investor or any of its affiliates, on the other hand, shall terminate and be of no
further force or effect. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting
transactions in securities of the Company.


 


7.2           Intentionally
omitted.


 


7.3           Listing.
The Company shall promptly secure the listing or designation for quotation (as applicable) of all of the Exchange Shares and, if
applicable, Right Shares upon each Eligible Market upon which the Common Stock is then listed or designated for quotation (as applicable)
(subject to official notice of issuance) and shall maintain such listing of all the Exchange Shares and, if applicable, Right Shares
from time to time issuable under the terms of the Transaction Documents. The Company shall pay all fees and expenses in connection
with satisfying its obligations under this Section 7.3.


 


7.4           Holding
Period. For the purposes of Rule 144 of the 1933 Act, the Company acknowledges that the holding period of the Exchange Note
may be tacked onto the holding period of the Exchange Shares and the Right (and upon exercise of the Right, the Right Shares) and
that the holding period of the Right may be tacked onto the holding period of the Right Shares, and the Company agrees not to take
a position contrary to this Section 5.4.


 




    	 	11	 



     


    

 


7.5           Blue
Sky. The Company shall make all filings and reports relating to the Exchange required under applicable securities or “Blue
Sky” laws of the states of the United States following the date hereof, if any.


 


7.6           Fees
and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement.


 


8.            Right


 


8.1           Right
of Issuance of Shares. Subject to the terms hereof, including, without limitation, Section 8.7 hereof, the exercise of the
Right may be made by the Investor (or any transferee of such Right by the Investor) (the “Holder”), in whole
or in part, at any time or times on or after the date hereof by delivery to the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of
the Company) of a duly executed facsimile or PDF copy (delivered via e-mail) of the Notice of Issuance Form annexed hereto as Exhibit
A. Partial exercises of the Right resulting in issuances of a portion of the total number of Right Shares available hereunder
shall have the effect of lowering the outstanding number of Right Shares purchasable hereunder in an amount equal to the applicable
number of Right Shares issued. The Holder and the Company shall maintain records showing the number of Right Shares issued and
the date of such issuances. The Company shall deliver any objection to any Notice of Issuance Form within two (2) Business Days
of receipt of such notice. The Holder acknowledges and agrees that, by reason of the provisions of this paragraph, following
each exercise of the Rights issued hereunder and the issuance of a portion of the Right Shares pursuant thereto, the number of
Right Shares available for issuance pursuant to the Rights issued hereunder at any given time may be less than the initial Right
Share Amount.


 


8.2           Delivery
of Right Shares. Right Shares issued hereunder shall be transmitted by the Transfer Agent to the Holder by crediting the account
of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”),
on or prior to the date that is three (3) Trading Days after the delivery to the Company of the Notice of Issuance (such date,
the “Share Delivery Date”). The Right Shares shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the
date the Right has been exercised.


 


8.3           Charges,
Taxes and Expenses. Issuance of the Right Shares shall be made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such Right Shares, all of which taxes and expenses shall be paid by the
Company. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Issuance.


 




    	 	12	 



     


    

 


8.4           Authorized
Shares. The Company covenants that, during the period the Right is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the Right Shares upon the exercise of the Right. The
Company further covenants that its issuance of the Right shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary certificates for the Right Shares upon the due exercise
of the Right. The Company will take all such reasonable action as may be necessary to assure that such Right Shares may be issued
as provided herein without violation of any applicable law or regulation, or of any requirements of the Eligible Market upon which
the Common Stock may be listed. The Company covenants that all Right Shares which may be issued upon the exercise of the Right
represented by this Agreement will, upon exercise of the Right, be duly authorized, validly issued, fully paid and nonassessable
and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such issue, which shall be borne by the Company pursuant
to Section 8.3).


 


8.5           Impairment.
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of the Holder as set forth in this Agreement against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Right Shares above the
amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Right Shares upon
the exercise of the Right and (iii) use reasonable best efforts to obtain all such authorizations, exemptions or consents from
any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under
this Agreement.


 


8.6           Authorizations.
Before taking any action which would result in an adjustment in the number of Right Shares for which the Right provides for, the
Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof, including, without, limitation any consent required by the applicable Eligible Market.


 




    	 	13	 



     


    

 


8.7           Beneficial
Ownership Limitation. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise
of any portion of the Right, and the Holder shall not have the right to exercise any portion of the Right, pursuant to the terms
and conditions of the Right and any such exercise shall be null and void and treated as if never made, to the extent that after
giving effect to such exercise, the Holder together with the other Attribution Parties collectively would beneficially own in
excess of [    ]2% (the “Maximum Percentage”) of the number of shares of Common Stock outstanding immediately
after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially
owned by the Holder and the other Attribution Parties shall include the shares of Common Stock held by the Holder and all other
Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the Right with respect to which the determination
of such sentence is being made, but shall exclude the shares of Common Stock which would be issuable upon (A) exercise of the
remaining, unexercised portion of the Right beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise
or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation,
any convertible notes or convertible preferred stock or Rights) beneficially owned by the Holder or any other Attribution Party
subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 8.7. For purposes of this
Section 8.7, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of the Right,
in determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of the Right without
exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x)
the Company's most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public
filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding
Share Number”). If the Company receives an Notice of Issuance from the Holder at a time when the actual number of outstanding
shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing
of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Issuance would otherwise cause
the Holder's beneficial ownership, as determined pursuant to this Section 8.7, to exceed the Maximum Percentage, the Holder must
notify the Company of a reduced number of Right Shares to be purchased pursuant to such Notice of Issuance (the number of shares
by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the
Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time,
upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or
by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including
the Right, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was
reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of the Right results in the Holder
and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the
number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued
by which the Holder's and the other Attribution Parties' aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess
Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to
vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed
null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery
of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other
percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will
not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or
decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of any right that is not
an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of the
Right in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including
for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 8.7 to the extent necessary to correct this paragraph
or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained
in this Section 8.7 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation
contained in this paragraph may not be waived and shall apply to a successor holder of the Right.


 





 









2 Insert 4.99% or 9.99% as elected by the Investor
upon signing of this Agreement.







 




    	 	14	 



     


    

 


8.8           Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of the
Right, pursuant to the terms hereof.


 


8.9           Stock
Dividends and Splits. If the Company, at any time while the Right exists: (i) pays a stock dividend or otherwise makes a distribution
or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common
Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of
the Common Stock any shares of capital stock of the Company, then in each case the number of Right Shares issuable upon exercise
of the Right shall be proportionately adjusted. Any adjustment made pursuant to this Section 8.9 shall become effective immediately
upon the record date for the determination of stockholders entitled to receive such dividend or distribution (provided that if
the declaration of such dividend or distribution is rescinded or otherwise cancelled, then such adjustment shall be reversed upon
notice to the Holder of the termination of such proposed declaration or distribution as to any unexercised portion of the Right
at the time of such rescission or cancellation) and shall become effective immediately after the effective date in the case of
a subdivision, combination or re-classification.


 




    	 	15	 



     


    

 


8.10         Compensation
for Buy-In on Failure to Timely Deliver Certificates. In addition to any other rights available to the Holder, if the Company
fails or fails to cause the Transfer Agent to credit the Holder's balance account with DTC for the Right Shares pursuant to an
exercise on or before the applicable Share Delivery Date (an “Exercise Failure”), and if after such date the
Holder purchases (in an open market transaction or otherwise) Common Stock relating to the applicable Exercise Failure (a “Buy-In”),
then the Company shall, within three (3) Trading Days after the Holder's request and in the Holder's discretion, either (x) pay
cash to the Holder in an amount equal to the Holder's total purchase price (including brokerage commissions and other out-of-pocket
expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company's
obligation to credit the Holder's balance account with DTC for the shares of Common Stock to which the Holder is entitled upon
the Holder's exercise of the applicable Conversion Amount shall terminate, (y) promptly honor its obligation to credit the Holder's
balance account with DTC, as required pursuant to the terms of Section 8.2, for such shares of Common Stock and pay cash to the
Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock,
times (B) the Buy-In Price (including brokerage commissions and other out-of-pocket expenses, if any) or (z) reinstate the portion
of the Right and equivalent number of Right Shares for which such exercise was not honored (in which case such exercise shall be
deemed rescinded, and the Holder shall promptly return to the Company the Right Shares issued to such Holder pursuant to the rescinded
Notice of Issuance). The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect
of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares
of Common Stock upon exercise of the Right as required pursuant to the terms hereof.


 


8.11         Subsequent
Rights Offerings. If at any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon
complete exercise of the Right (without regard to any limitations on exercise hereof, including without limitation, the Maximum
Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or,
if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant,
issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate in any such
Purchase Right would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled to participate
in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right
to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its
right thereto would not result in the Holder exceeding the Maximum Percentage, at which time or times the Holder shall be granted
such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right to
be held similarly in abeyance) to the same extent as if there had been no such limitation).


 




    	 	16	 



     


    

 


8.12         Distribution
of Assets. If the Company shall declare or make any dividend or other distributions of its assets (or rights to acquire its
assets) to any or all holders of shares of Common Stock, by way of return of capital or otherwise (including without limitation,
any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the “Distributions”),
at any time after the issuance of the Right , then, in each such case, the Holder shall be entitled to such Distributions as if
the Holder had held the number of shares of Common Stock acquirable upon complete exercise in full of this Right (without taking
into account any limitations or restrictions on the exercisability of this Right) immediately prior to the date on which a record
is taken for such Distribution or, if no such record is taken, the date as of which the record holders of Common Stock are to be
determined for such Distributions (provided, however, that to the extent that the Holder's right to participate in
any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder
shall not be entitled to participate in such Distribution to such extent (and shall not be entitled to beneficial ownership of
such shares of Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result
in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted
such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution to be
held similarly in abeyance) to the same extent as if there had been no such limitation).


 




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8.13         Fundamental
Transaction. The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes
in writing all of the obligations of the Company under this Agreement and the other Transaction Documents in accordance with the
provisions of this Section 8.13 pursuant to written agreements in form and substance satisfactory to the Required Holders (as defined
in the 2015 Notes) and approved by the Required Holders (as defined in the 2015 Notes) prior to such Fundamental Transaction, including
agreements, if so requested by the Holder, to deliver to each Holder a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Right, and exercisable for a corresponding number of shares of capital
stock equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Right (without regard to any limitations
on the exercise of this Right) prior to such Fundamental Transaction, and satisfactory to the Required Holders (as defined in the
2015 Notes). Upon the occurrence or consummation of any Fundamental Transaction in which the Company is not the Successor Entity
(or in which the Common Stock ceases to be registered under the 1934 Act), and it shall be a required condition to the occurrence
or consummation of any Fundamental Transaction that, the Company and the Successor Entity or Successor Entities, jointly and severally,
shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly and severally succeed to, and
be added to the term “Company” under this Right (so that from and after the date of such Fundamental Transaction, each
and every provision of this Right referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Company and the Successor Entity or Successor Entities, jointly and
severally, may exercise every right and power of the Company prior thereto and shall assume all of the obligations of the Company
prior thereto under this Right with the same effect as if the Company and such Successor Entity or Successor Entities, jointly
and severally, had been named as the Company in this Right, and, solely at the request of the Holder, if the Successor Entity and/or
Successor Entities is a publicly traded corporation whose common capital stock is quoted on or listed for trading on an Eligible
Market, shall deliver (in addition to and without limiting any right under this Right) to the Holder in exchange for this Right
a security of the Successor Entity and/or Successor Entities evidenced by a written instrument substantially similar in form and
substance to the Right set forth in this Agreement and exercisable for a corresponding number of shares of capital stock of the
Successor Entity and/or Successor Entities (the “Successor Capital Stock”) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Right (without regard to any limitations on the exercise of this Right) prior
to such Fundamental Transaction (such corresponding number of shares of Successor Capital Stock to be delivered to the Holder shall
be equal to the greater of (A) the quotient of (i) the aggregate dollar value of all consideration (including cash consideration
and any consideration other than cash (“Non-Cash Consideration”), in such Fundamental Transaction, as such values
are set forth in any definitive agreement for the Fundamental Transaction that has been executed at the time of the first public
announcement of the Fundamental Transaction or, if no such value is determinable from such definitive agreement, as determined
in accordance with Section 26 of the 2015 Notes with the term “Non-Cash Consideration” being substituted for the term
“Conversion Price”) that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction
or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction, had this Right
been exercised immediately prior to such Fundamental Transaction or the record, eligibility or other determination date for the
event resulting in such Fundamental Transaction (without regard to any limitations on the exercise of this Right) (the “Aggregate
Consideration”) divided by (ii) the per share Closing Sale Price of such Successor Capital Stock on the Trading Day immediately
prior to the consummation or occurrence of the Fundamental Transaction and (B) the product of (i) the Aggregate Consideration and
(ii) the highest exchange ratio pursuant to which any stockholder of the Company may exchange Common Stock for Successor Capital
Stock) (provided, however, to the extent that the Holder's right to receive any such shares of publicly traded common
stock (or their equivalent) of the Successor Entity would result in the Holder and its other Attribution Parties exceeding the
Maximum Percentage, if applicable, then the Holder shall not be entitled to receive such shares to such extent (and shall not be
entitled to beneficial ownership of such shares of publicly traded common stock (or their equivalent) of the Successor Entity as
a result of such consideration to such extent) and the portion of such shares shall be held in abeyance for the Holder until such
time or times, as its right thereto would not result in the Holder and its other Attribution Parties exceeding the Maximum Percentage,
at which time or times the Holder shall be delivered such shares to the extent as if there had been no such limitation), and such
security shall be satisfactory to the Holder, and with an identical exercise price to the Exercise Price hereunder (such adjustments
to the number of shares of capital stock and such exercise price being for the purpose of protecting after the consummation or
occurrence of such Fundamental Transaction the economic value of this Right that was in effect immediately prior to the consummation
or occurrence of such Fundamental Transaction, as elected by the Holder solely at its option). Upon occurrence or consummation
of the Fundamental Transaction, and it shall be a required condition to the occurrence or consummation of such Fundamental Transaction
that, the Company and the Successor Entity or Successor Entities shall deliver to the Holder confirmation that there shall be issued
upon exercise of this Right at any time after the occurrence or consummation of the Fundamental Transaction, as elected by the
Holder solely at its option, shares of Common Stock, Successor Capital Stock or, in lieu of the shares of Common Stock or Successor
Capital Stock (or other securities, cash, assets or other property purchasable upon the exercise of this Right prior to such Fundamental
Transaction), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase
or subscription rights), which for purposes of clarification may continue to be shares of Common Stock, if any, that the Holder
would have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination
date for the event resulting in such Fundamental Transaction, had this Right been exercised immediately prior to such Fundamental
Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction (without
regard to any limitations on the exercise of this Right), as adjusted in accordance with the provisions of this Right. In addition
to and not in substitution for any other rights hereunder, prior to the occurrence or consummation of any Fundamental Transaction
pursuant to which holders of shares of Common Stock are entitled to receive securities, cash, assets or other property with respect
to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make appropriate provision
to ensure that, and any applicable Successor Entity or Successor Entities shall ensure that, and it shall be a required condition
to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have the right to receive upon exercise
of this Right at any time after the occurrence or consummation of the Corporate Event, shares of Common Stock or Successor Capital
Stock or, if so elected by the Holder, in lieu of the shares of Common Stock (or other securities, cash, assets or other property)
purchasable upon the exercise of this Right prior to such Corporate Event (but not in lieu of such items still issuable under Sections
8.11 and 8.12, which shall continue to be receivable on the Common Stock or on the such shares of stock, securities, cash, assets
or any other property otherwise receivable with respect to or in exchange for shares of Common Stock prior to the date of consummation
of such Corporate Event), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or
other purchase or subscription rights and any shares of Common Stock) which the Holder would have been entitled to receive upon
the occurrence or consummation of such Corporate Event or the record, eligibility or other determination date for the event resulting
in such Corporate Event, had this Right been exercised immediately prior to such Corporate Event or the record, eligibility or
other determination date for the event resulting in such Corporate Event (without regard to any limitations on exercise of this
Right). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder.
The provisions of this Section 8.13 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events.


 




    	 	18	 



     


    

 


8.14         Notice
to Allow Exercise of Right. If (A) the Company shall declare a Distribution (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C)
the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in
connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale
or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed to the Holder
at least 10 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date
on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the
Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to mail such notice
or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K. The Holder shall remain entitled to exercise the Right during the period commencing on the date of such notice
to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.


 


8.15         No
Rights as Stockholder Until Exercise. Except as otherwise set forth herein, this Agreement does not entitle the Holder to any
voting rights, dividends or other rights as a stockholder of the Company with respect to the Right prior to the exercise thereof.


 


9.           Miscellaneous


 


9.1           Successors
and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the parties hereto and the respective 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.


 




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


 


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.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when
sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party) or by electronic mail; or (iii) one Business Day after deposit with an overnight courier service, in each case properly
addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses for such communications shall
be:


 


If to the Company:


 


Great Basin Scientific, Inc.

2441 South 3850 West

Salt Lake City, UT 84120

Telephone: (801) 990-1055 ext. 112

Facsimile: (801) 990-1051

Attention: Jeff Rona


 


With a copy to:


 


Dorsey & Whitney LLP

1400 Wewatta Street, Suite 400

Denver, CO 80202

Telephone: (303) 352-1133

Facsimile: (303) 629-3450

Attention: Jason K. Brenkert, Esq.

Email: brenkert.jason@dorsey.com


 




    	 	20	 



     


    

 


and


 


Kelley Drye & Warren LLP

101 Park Avenue

New York, NY 10178

Telephone: 212-808-7540

Facsimile: (212) 808-7897

Attention: Michael Adelstein, Esq.

Email: madelstein@kelleydrye.com


 


If to the Investor, to
its address, facsimile number and e-mail address set forth on its signature page hereto,


 


or to such other address, facsimile number
and/or e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given
to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile
machine or e-mail containing the time, date, recipient facsimile number and an image of the first page of such transmission or
(C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt
from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 


9.5           Finder’s
Fees. Each party represents that it neither is nor will be obligated for any finders’ fee or commission in connection
with this transaction (excluding any fees required to be paid by the Company to Roth Capital Partners, LLC in connection with the
original Transaction Documents). The Company shall indemnify and hold harmless the Investor from any liability for any commission
or compensation in the nature of a finders’ fee (and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or representatives is responsible.


 


9.6           Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company
and the Investor.


 




    	 	21	 



     


    

 


9.7           Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms so long as this Agreement as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s)
in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations
to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close
as possible to that of the prohibited, invalid or unenforceable provision(s).


 


9.8           Entire
Agreement. This Agreement together with that certain leak-out agreement, by and between the Company and the Investor, dated
September 19, 2016 (the “Leak-Out Agreement”), represents the entire agreement and understandings between the
parties concerning the Exchange and the other matters described herein and therein and supersedes and replaces any and all prior
agreements and understandings solely with respect to the subject matter hereof and thereof. Notwithstanding anything herein to
the contrary, nothing herein shall amend, modify or waive any term or condition of the Leak-Out Agreement or of any of the other
Transaction Documents (as defined in each of the SPAs) (other than the 2015 Notes, which shall be cancelled following the Exchange
pursuant to Section 1.1).


 


9.9           Counterparts.
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.


 


9.10         Interpretation.
Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular
the plural, the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusive
meaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder” or
“herein” relate to this Agreement.


 


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


 


9.12         Survival.
The representations, warranties and covenants of the Company and the Investor contained herein shall survive the Closing and delivery
of the Securities.


 


9.13         Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


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


 




    	 	22	 



     


    

 


9.15         Independent
Nature of Investor's Obligations and Rights. The obligations of the Investor under this Agreement are several and not joint
with the obligations of any Other Investor, and the Investor shall not be responsible in any way for the performance of the obligations
of any Other Investor under any Other Agreement. Nothing contained herein or in any Other Agreement, and no action taken by the
Investor pursuant hereto, shall be deemed to constitute the Investor and Other Investors as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Investor and Other Investors are in any way acting in concert
or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement and the
Company acknowledges that, to the best of its knowledge, the Investor and the Other Investors are not acting in concert or as a
group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement. The Company and
the Investor confirm that the Investor has independently participated in the negotiation of the transactions contemplated hereby
with the advice of its own counsel and advisors. The Investor shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Investor to
be joined as an additional party in any proceeding for such purpose.


 


9.16         Equal
Treatment Acknowledgement; Most Favored Nations. The parties hereto herby acknowledge and agree that, in accordance with Section
9(e) of each SPA, the Company is obligated to present the terms of this offering to each Other Investor; provided that each Other
Agreement shall be negotiated separately with each Other Investor and shall not in any way be construed as the Investor or any
Other Investor acting in concert or as a group with respect to the purchase, disposition or voting of securities of the Company
or otherwise. The Company hereby represents and warrants as of the date hereof and covenants and agrees that none of the terms
offered to any Person with respect to the Exchange, including, without limitation with respect to any consent, release, amendment,
settlement, or waiver relating to the Exchange (each an “Exchange Document”), is or will be more favorable to
such Person than those of the Investor and this Agreement. If, and whenever on or after the date hereof, the Company enters into
an Exchange Document, then (i) the Company shall provide notice thereof to the Investor immediately following the occurrence thereof
and (ii) the terms and conditions of this Agreement shall be, without any further action by the Investor or the Company, automatically
amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more
favorable terms and/or conditions (as the case may be) set forth in such Exchange Document, provided that upon written notice to
the Company at any time the Investor may elect not to accept the benefit of any such amended or modified term or condition, in
which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior
to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions
of this Section 9.16 shall apply similarly and equally to each Exchange Document.


 


[SIGNATURES ON THE FOLLOWING
PAGE]


 




    	 	23	 



     


    

 


IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


	 	THE COMPANY
	 	 
	 	GREAT BASIN SCIENTIFIC, INC.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 




     


     


    

 


IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


	 	INVESTOR:
	 	 
	 	 
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 
	 	Address for Notices:
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	Fax#: ________________
	 	 
	 	SSN#: ________________
	 	 
	 	Amended and Restated 
	 	Leak-Out Percentage:____%


 




     


     


    

 


EXHIBIT A


 


NOTICE OF ISSUANCE


 


TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THIS


RIGHT TO RECEIVE COMMON STOCK


 


GREAT
BASIN SCIENTIFIC, inc. 


 


The undersigned holder
hereby exercises the right (“right”), in whole or in part, established by that certain Exchange Agreement, dated as
of ____, 2016, by and between the Company and __________________ (the “Exchange Agreement”) and elects to receive
_________________ shares of Common Stock (“Right Shares”) of Great Basin Scientific, Inc., a
Delaware corporation (the “Company”) in accordance herewith. Capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Right.


 


1. Delivery of Right
Shares. The Company shall deliver to the holder __________ Right Shares in accordance with the terms of the Right.


 


2. Accredited Investor.
The undersigned represents it is an “accredited investor” as defined in
Regulation D promulgated under the Securities Act of 1933, as amended and the representations made by the Investor in the Exchange
Agreement in respect of the purchase of the Right are true and correct as of the date hereof in respect to the undersigned (whether
or not the Investor) and the exercise of the Right.


 


3. Maximum Percentage
Representation. Notwithstanding anything to the contrary contained herein, this Notice of Issuance shall constitute a representation
by the Holder of the Right submitting this Notice of Issuance that after giving effect to the exercise provided for in this Notice
of Issuance, such Holder (together with its Affiliates) will not have beneficial ownership (together with the beneficial ownership
of such Person's Affiliates) of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding
shares of Common Stock of the Company as determined based on the Reported Outstanding Share Number and otherwise pursuant to the
provisions of Section 8.6 of the Exchange Agreement.


 


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


 


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



 


	Issue to:	 
	 	 
	 	 
	 	 
	 	 


 


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



 


	DTC Participant:	 
	 	 
	DTC Number:	 
	 	 
	Account Number:	 


 




     


     


    

 


	Date: _______________ __, ______	 
	 	 
	 	 
	Name of Registered Holder	 
	 	 
	By:	 	 
	 	Name:	 
	 	Title:	 


 




     


     


    

 


ACKNOWLEDGMENT


 


The Company hereby
acknowledges this Notice of Issuance and hereby directs American Stock Transfer & Trust Company to issue the above indicated
number of shares of Common Stock in accordance with the Transfer Agent Instructions dated ______ [__], 2016 from the Company and
acknowledged and agreed to by American Stock Transfer & Trust Company.


 


	 	GREAT BASIN SCIENTIFIC, INC.
	 	 
	 	By:	 	 
	 	Name:
	 	Title: