Exhibit 10.3


 


FORM OF SERIES B SENIOR SUBORDINATED
CONVERTIBLE NOTE


 


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


 


This instrument
and the rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in that certain
Subordination and Intercreditor Agreement (the “Subordination Agreement”) dated as of March [__],
2013 by and among the holders of Series A Notes issued by the Company (as defined
below) (collectively, the “Senior Creditors”), the holders of Series B Notes issued by the Company
(collectively, the “Subordinated Creditors”) and the Company to the indebtedness (including interest) owed
by the Company to the Senior Creditors pursuant to that certain Securities Purchase Agreement dated as of March [___],
2013 among the Company, the Senior Creditors and the Subordinated Creditors from
time to time party thereto (as the same may be amended, supplemented or otherwise modified from time to time subject to the
terms of the Subordination Agreement, the “Securities Purchase Agreement”), the Series A Notes (as such
term is defined in the Securities Purchase Agreement) and to indebtedness refinancing the indebtedness originally issued in
connection therewith, subject to the terms of the Subordination Agreement; and each holder of this instrument, by its
acceptance hereof, irrevocably agrees to be bound by the provisions of the Subordination Agreement.


 


Fuse
Science, Inc.


 


Series
B Senior Subordinated Convertible Note


 


	Issuance Date: [●] 2013	Original Principal Amount: U.S. $[●]


 


 



    	



    	 



    



 


FOR VALUE RECEIVED,
Fuse Science, Inc., a Nevada corporation (the “Company”), hereby promises to pay to the order of [BUYER]
or its registered assigns (“Holder”) the amount set out above as the Original Principal Amount (as reduced
pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when due, whether
upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance with the terms hereof)
and to pay interest (“Interest”) on any outstanding Principal (as defined below) at the applicable Interest
Rate (as defined below) from the date set out above as the Issuance Date (the “Issuance Date”) until the same
becomes due and payable, whether upon the Maturity Date or acceleration, conversion, redemption or otherwise (in each case in
accordance with the terms hereof). This Series B Senior Subordinated Convertible Note (including all Senior Subordinated Convertible
Notes issued in exchange, transfer or replacement hereof, this “Series B Note” or “Note”)
is one of an issue of Senior Subordinated Convertible Notes issued pursuant to the Securities Purchase Agreement (as defined below)
on the Closing Date (as defined below) (collectively, the “Series B Notes” and such other Senior Subordinated
Convertible Notes, the “Other B Notes”) and have been issued concurrently with an issue of Senior Convertible
Notes issued pursuant to the Securities Purchase Agreement on the Closing Date (collectively, the “Series A Notes”,
and together with the Other B Notes, the “Other Notes”, and the Series A Notes and the Series B Notes, collectively,
the “Notes”). Certain capitalized terms used herein are defined in Section ‎29.


 


1.                 
PAYMENTS OF PRINCIPAL. On the Maturity Date, the Company shall pay
to the Holder an amount in cash representing all outstanding Principal, accrued and unpaid Interest and accrued and unpaid Late
Charges on such Principal and Interest. Other than as specifically permitted by this Note, the Company may not prepay any portion
of the outstanding Principal, accrued and unpaid Interest or accrued and unpaid Late Charges on Principal and Interest, if any.


 


2.                 
INTEREST; INTEREST RATE.


 


(a)               
Interest on this Note shall commence accruing on the Issuance Date and shall be computed on the basis of a 360-day year
and twelve 30-day months, shall be payable in arrears for each Quarter on January 15, April 15, July 15 and October 15 of each
year (each, an “Interest Date”) with the first Interest Date being April 15, 2013, and shall compound on each
Interest Date. Interest shall be payable on each Interest Date, to the record holder of this Note on the applicable Interest Date,
in shares of Common Stock (“Interest Shares”) so long as there has been no Equity Conditions Failure; provided
however, that the Company may, at its option following written notice to the Holder, pay Interest on any Interest Date in cash
(“Cash Interest”) or in a combination of Cash Interest and Interest Shares. The Company shall deliver a written
notice (each, an “Interest Election Notice”) to each holder of the Notes on or prior to the Interest Notice
Due Date (the date such notice is delivered to all of the holder, the “Interest Notice Date”) which notice
(i) either (A) confirms that Interest to be paid on such Interest Date shall be paid entirely in Interest Shares or (B) elects
to pay Interest as Cash Interest or a combination of Cash Interest and Interest Shares and specifies the amount of Interest that
shall be paid as Cash Interest and the amount of Interest, if any, that shall be paid in Interest Shares and (ii) certifies that
there has been no Equity Conditions Failure. If an Equity Conditions Failure has occurred as of the Interest Notice Date, then
unless the Company has elected to pay such Interest as Cash Interest, the Interest Notice shall indicate that unless the Holder
waives the Equity Conditions Failure, the Interest shall be paid as Cash Interest. Notwithstanding anything herein to the contrary,
if no Equity Conditions Failure has occurred as of the Interest Notice Date but an Equity Conditions Failure occurs at any time
prior to the Interest Date, (A) the Company shall provide the Holder a subsequent notice to that effect and (B) unless the Holder
waives the Equity Conditions Failure, the Interest shall be paid in cash. Interest to be paid on an Interest Date in Interest
Shares shall be paid in a number of fully paid and nonassessable shares (rounded to the nearest whole share in accordance with
Section 3(a)) of Common Stock equal to the quotient of (1) the amount of Interest payable on such Interest Date less any
Cash Interest paid and (2) the Interest Conversion Price in effect on the applicable Interest Date.


 






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(b)              
When any Interest Shares are to be paid on an Interest Date, the Company shall (i) (A) provided that the Company’s
transfer agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program, credit such aggregate number of Interest Shares to which the Holder shall be entitled
to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (B)
if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver on the applicable
Interest Date, to the address set forth in the register maintained by the Company for such purpose pursuant to the Securities Purchase
Agreement or to such address as specified by the Holder in writing to the Company at least two (2) Business Days prior to the applicable
Interest Date, a certificate, registered in the name of the Holder or its designee, for the number of Interest Shares to which
the Holder shall be entitled and (ii) with respect to each Interest Date, pay to the Holder, in cash by wire transfer of immediately
available funds, the amount of any Cash Interest. 


 


(c)                Prior
to the payment of Interest on an Interest Date, Interest on this Note shall accrue at the Interest Rate and be payable by
way of inclusion of the Interest in the Conversion Amount on each Conversion Date in accordance with
Section 3(b)(i) or upon any redemption in accordance with Section 10. From and after the occurrence and during the
continuance of any Event of Default, the Interest Rate shall automatically be increased to fifteen percent (15.0%). In the
event that such Event of Default is subsequently cured, the adjustment referred to in the preceding sentence shall cease to
be effective as of the calendar day immediately following the date of such cure; provided that the Interest as calculated
and unpaid at such increased rate during the continuance of such Event of Default shall continue to apply to the extent
relating to the days after the occurrence of such Event of Default through and including the date of such cure of such Event
of Default. The Company shall pay any and all taxes that may be payable with respect to the issuance and delivery of Interest
Shares.


 






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


 


(a)Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the Issuance Date, the Holder shall be
entitled to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into validly issued, fully
paid and non-assessable shares of Common Stock in accordance with Section 3(c), at the Conversion Rate (as defined below).
The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance
of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole
share. The Company shall pay any and all transfer, stamp, issuance and similar taxes that may be payable with respect to the issuance
and delivery of Common Stock upon conversion of any Conversion Amount.


 


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


 


(i)“Conversion
Amount” means the portion of the Principal to be converted, redeemed or otherwise with respect to which this determination
is being made, plus all accrued and unpaid Interest with respect to such portion of the Principal amount and accrued and unpaid
Late Charges with respect to such portion of such Principal and such Interest.


 


(ii)“Conversion
Price” means, as of any Conversion Date or other date of determination, $[ ]1, subject to adjustment as
provided herein.


 


(c)Mechanics
of Conversion.


 


(i)Optional
Conversion. To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”),
the Holder shall deliver (whether via facsimile or otherwise), for receipt on or prior to 11:59 p.m., New York time, on such date,
a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion Notice”)
to the Company. If required by Section 3(c)(iii), within three (3) Trading Days following a conversion of this Note as aforesaid,
the Holder shall surrender this Note to a nationally recognized overnight delivery service for delivery to the Company (or an
indemnification undertaking with respect to this Note in the case of its loss, theft or destruction as contemplated by Section 17(b)).
On or before the first (1st) Trading Day following the date of receipt of a Conversion Notice, the Company shall transmit
by facsimile an acknowledgment of confirmation, in the form attached hereto as Exhibit II, of receipt of such Conversion Notice
to the Holder and the Transfer Agent. On or before the second (2nd) Trading Day following the date of receipt of a
Conversion Notice, the Company shall (1) provided that the Transfer Agent is participating in the DTC Fast Automated Securities
Transfer Program, credit such aggregate number of shares of Common Stock to which the Holder shall be entitled to the Holder’s
or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (2) if the Transfer Agent
is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier)
to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for
the number of shares of Common Stock to which the Holder shall be entitled. If this Note is physically surrendered for conversion
pursuant to Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion
Amount being converted, then the Company shall as soon as practicable and in no event later than three (3) Business Days after
receipt of this Note and at its own expense, issue and deliver to the Holder (or its designee) a new Note (in accordance with
Section 17(d)) representing the outstanding Principal not converted. The Person or Persons entitled to receive the shares
of Common Stock issuable upon a conversion of this Note shall be treated for all purposes as the record holder or holders of such
shares of Common Stock on the Conversion Date.


 





 



 1Insert
price equal to the lesser of (x) $0.17 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations or
other similar transactions) and (y) 85% of the Market Price as of close of business on the Principal Market immediately prior
to the time of execution of the Securities Purchase Agreement.


 






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(ii)Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, to issue to the Holder within three
(3) Trading Days after the Company’s receipt of a Conversion Notice (whether via facsimile or otherwise) (the “Share
Delivery Deadline”), a certificate for the number of shares of Common Stock to which the Holder is entitled and register
such shares of Common Stock on the Company’s share register or to credit the Holder’s or its designee’s balance
account with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of
any Conversion Amount (as the case may be) (a “Conversion Failure”) and if on or after such Share Delivery Deadline
the Holder (or any other Person in respect, or on behalf, of the Holder) purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of all or any portion of the number of shares of Common
Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, issuable
upon such conversion that the Holder so anticipated receiving from the Company, then, in addition to all other remedies available
to the Holder, the Company shall, within three (3) Business Days after receipt of the Holder’s written request and in the
Holder’s discretion, either: (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including
brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including, without
limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point
the Company’s obligation to so issue and deliver such certificate or credit the Holder’s balance account with DTC for
the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case
may be) (and to issue such shares of Common Stock) shall terminate, or (ii) promptly honor its obligation to so issue and deliver
to the Holder a certificate or certificates representing such shares of Common Stock or credit the Holder’s balance account
with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder
(as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product
of (A) such number of shares of Common Stock multiplied by (B) the lowest Closing Sale Price of the Common Stock on any Trading
Day during the period commencing on the date of the applicable Conversion Notice and ending on the date of such issuance and payment
under this clause (ii).


 






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(iii)Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and
addresses of the holders of each Note and the principal amount of the Notes held by such holders (the “Registered Notes”).
The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and the holders
of the Notes shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes (including,
without limitation, the right to receive payments of Principal and Interest hereunder) notwithstanding notice to the contrary.
A Registered Note may be assigned, transferred or sold in whole or in part only by registration of such assignment or sale on
the Register. Upon its receipt of a written request to assign, transfer or sell all or part of any Registered Note by the holder
thereof, the Company shall record the information contained therein in the Register and issue one or more new Registered Notes
in the same aggregate principal amount as the principal amount of the surrendered Registered Note to the designated assignee or
transferee pursuant to Section 17, provided that if the Company does not so record an assignment, transfer or sale (as the
case may be) of all or part of any Registered Note within two (2) Business Days of its receipt of such a request, then the Register
shall be automatically updated to reflect such assignment, transfer or sale (as the case may be). Notwithstanding anything to
the contrary set forth in this Section 3, following conversion of any portion of this Note in accordance with the terms hereof,
the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Conversion Amount represented
by this Note is being converted (in which event this Note shall be delivered to the Company following conversion thereof as contemplated
by Section 3(c)(i)) or (B) the Holder has provided the Company with prior written notice (which notice may be included in a Conversion
Notice) requesting reissuance of this Note upon physical surrender of this Note. The Holder and the Company shall maintain records
showing the Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates of such conversions
and/or payments (as the case may be) or shall use such other method, reasonably satisfactory to the Holder and the Company, so
as not to require physical surrender of this Note upon conversion.


 


(iv)Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one holder of Notes for
the same Conversion Date and the Company can convert some, but not all, of such portions of the Notes submitted for conversion,
the Company, subject to Section 3(d), shall convert from each holder of Notes electing to have Notes converted on such date a
pro rata amount of such holder’s portion of its Notes submitted for conversion based on the principal amount of Notes submitted
for conversion on such date by such holder relative to the aggregate principal amount of all Notes submitted for conversion on
such date. In the event of a dispute as to the number of shares of Common Stock issuable to the Holder in connection with a conversion
of this Note, the Company shall issue to the Holder the number of shares of Common Stock not in dispute and resolve such dispute
in accordance with Section 22.


 






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(d)Limitations
on Conversions. Notwithstanding anything to the contrary contained in this Note, this Note shall not be convertible by the
Holder hereof, and the Company shall not effect any conversion of this Note or otherwise issue any shares of Common Stock pursuant
hereto, to the extent (but only to the extent) that after giving effect to such conversion or other share issuance hereunder the
Holder or any of its affiliates would beneficially own in excess of [4.99%][9.99%]2 (the “Maximum Percentage”)
of the Common Stock. To the extent the above limitation applies, the determination of whether this Note shall be convertible (vis-à-vis
other convertible, exercisable or exchangeable securities owned by the Holder or any of its affiliates) and of which such securities
shall be convertible, exercisable or exchangeable (as among all such securities owned by the Holder and its affiliates) shall,
subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion,
exercise or exchange (as the case may be). No prior inability to convert this Note, or to issue shares of Common Stock, pursuant
to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent
determination of convertibility. For purposes of this paragraph, beneficial ownership and all determinations and calculations
(including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d)
of the 1934 Act (as defined in the Securities Purchase Agreement) and the rules and regulations promulgated thereunder. The provisions
of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial
ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such
Maximum Percentage limitation. The limitations contained in this paragraph shall apply to a successor Holder of this Note. The
holders of Common Stock shall be third party beneficiaries of this paragraph and the Company may not waive this paragraph without
the consent of holders of a majority of its Common Stock. 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 to the Holder the number of shares of Common
Stock then outstanding, including by virtue of any prior conversion or exercise of convertible or exercisable securities into
Common Stock, including, without limitation, pursuant to this Note or securities issued pursuant to the Securities Purchase Agreement.
By written notice to the Company, any Holder may increase or decrease the Maximum Percentage to any other percentage not in excess
of 9.99% specified in such notice; provided that (i) any such increase will not be effective until the 61st day after
such notice is delivered to the Company, and (ii) any such increase or decrease will apply only to the Holder sending such notice
and not to any other holder of Notes.


 





 



 2
Initial Maximum Percentage to be elected by such Holder prior to the Closing Date






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4.RIGHTS
UPON EVENT OF DEFAULT.


 


(a)Event
of Default. Each of the following events shall constitute an “Event of Default”:


 


(i)the
suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on an Eligible Market for a
period of five (5) consecutive days or for more than an aggregate of ten (10) days in any 365 day period;


 


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


 


(iii)at
any time following the tenth (10th) consecutive day that the Holder’s Authorized Share Allocation is less than
the number of shares of Common Stock that the Holder would be entitled to receive upon a conversion of the full Conversion Amount
of this Note (without regard to any limitations on conversion set forth in Section 3(d) or otherwise);


 


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


 


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


 






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(vi)the
occurrence of any default under, redemption of or acceleration prior to maturity of any Indebtedness (as defined in the Securities
Purchase Agreement) in excess of $150,000 of the Company or any of its Subsidiaries, other than with respect to any Other Notes;


 


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


 


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


 


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


 






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(x)a
final judgment or judgments for the payment of money aggregating in excess of $150,000 are rendered against the Company and/or
any of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged or stayed
pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment
which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $150,000 amount
set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written
statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity
and the Company or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within thirty
(30) days of the issuance of such judgment;


 


(xi)the
Company and/or any Subsidiary, individually or in the aggregate, either (i) fails to pay, when due, or within any applicable grace
period, any payment with respect to any Indebtedness in excess of $150,000 due to any third party (other than, with respect to
unsecured Indebtedness only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper
proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or
is otherwise in breach or violation of any agreement for monies owed or owing in an amount in excess of $150,000, which breach
or violation permits the other party thereto to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer
to exist any other circumstance or event that would, with or without the passage of time or the giving of notice, result in a default
or event of default under any agreement binding the Company or any Subsidiary, which default or event of default would or is likely
to have a material adverse effect on the business, assets, operations (including results thereof), liabilities, properties, condition
(including financial condition) or prospects of the Company or any of its Subsidiaries, individually or in the aggregate;


 


(xii)other
than as specifically set forth in another clause of this Section 4(a), the Company
or any Subsidiary breaches any representation, warranty, covenant or other term or condition of any Transaction Document,
except, in the case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured
for a period of three (3) consecutive Trading Days;


 


(xiii)any
strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than
fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the
Company or any Subsidiary, if any such event or circumstance could reasonably be expected to have a Material Adverse Effect (as
defined in the Securities Purchase Agreement);


 


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


 






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(xv)any
breach or failure in any respect by the Company or any Subsidiary to comply with any provision of Section 12 of this
Note;


 


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


 


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


 


(b)Notice
of an Event of Default; Redemption Right. Upon the occurrence of an Event of Default with respect to this Note or any
Other Note, the Company shall within one (1) Business Day deliver written notice thereof via facsimile and overnight courier
(with next day delivery specified) (an “Event of Default Notice”) to the Holder. At any time after the
earlier of the Holder’s receipt of an Event of Default Notice and the Holder becoming aware of an Event of Default, the
Holder may require the Company to redeem (regardless of whether such Event of Default has been cured) all or any portion of
this Note by delivering written notice thereof (the “Event of Default Redemption Notice”) to the Company,
which Event of Default Redemption Notice shall indicate the portion of this Note the Holder is electing to redeem. Each
portion of this Note subject to redemption by the Company pursuant to this Section 4(b) shall be redeemed by the Company
at a price equal to the greater of (i) the product of (A) the Conversion Amount to be redeemed multiplied by (B) the
Redemption Premium and (ii) the product of (X) the Conversion Rate with respect to the Conversion Amount in effect at such
time as the Holder delivers an Event of Default Redemption Notice multiplied by (Y) the product of (1) the Redemption Premium
multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the
date immediately preceding such Event of Default and ending on the date the Company makes the entire payment required to be
made under this Section 4(b) (the “Event of Default Redemption Price”). Redemptions required by this
Section 4(b) shall be made in accordance with the provisions of Section 10. To the extent redemptions required by
this Section 4(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the
Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this
Section 4, but subject to Section 3(d), until the Event of Default Redemption Price (together with any Late Charges
thereon) is paid in full, the Conversion Amount submitted for redemption under this Section 4(b) (together with any Late
Charges thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant to the terms of this Note.
In the event of the Company’s redemption of any portion of this Note under this Section 4(b), the
Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future
interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder.
Accordingly, any redemption premium due under this Section 4(b) is intended by the parties to be, and shall be deemed, a
reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty.


 






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5.RIGHTS
UPON FUNDAMENTAL TRANSACTION.


 


(a)Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes in
writing all of the obligations of the Company under this Note and the other Transaction Documents in accordance with the
provisions of this Section 5(a), including agreements to deliver to each holder of Notes in exchange for such Notes a
security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Notes,
including, without limitation, having a principal amount and interest rate equal to the principal amounts then outstanding
and the interest rates of the Notes held by such holder, having similar conversion rights as the Notes and having similar
ranking to the Notes, and satisfactory to the Holder and (ii) the Successor Entity (including its Parent Entity) is a
publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible Market. Upon the occurrence
of any Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the
date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and
shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect
as if such Successor Entity had been named as the Company herein. Upon consummation of a Fundamental Transaction, the
Successor Entity shall deliver to the Holder confirmation that there shall be issued upon conversion or redemption of this
Note at any time after the consummation of such Fundamental Transaction, in lieu of the shares of the Company’s Common
Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 6 and 14,
which shall continue to be receivable thereafter) issuable upon the conversion or redemption of the Notes prior to such
Fundamental Transaction, such shares of the publicly traded common stock (or their equivalent) of the Successor Entity
(including its Parent Entity) which the Holder would have been entitled to receive upon the happening of such Fundamental
Transaction had this Note been converted immediately prior to such Fundamental Transaction (without regard to any limitations
on the conversion of this Note), as adjusted in accordance with the provisions of this Note. Notwithstanding the foregoing,
the Holder may elect, at its sole option or the Required Holders may elect on behalf of the Holders of all the Notes by
delivery of written notice to the Company to waive this Section 5(a) to permit the Fundamental Transaction without the
assumption of this Note. The provisions of this Section 5 shall apply similarly and equally to successive Fundamental
Transactions and shall be applied without regard to any limitations on the conversion of this Note.


 






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


 






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(c)Adjustment
to the Conversion Rate Upon a Change of Control.


 


(i)In
connection with a Change of Control, if the Holder converts its Note at any time beginning on the date of the Change of
Control Notice and ending at the close of business on the Trading Day immediately prior to the applicable Change of Control
Date, the Company will increase the Conversion Rate by a number of additional shares (the “Additional
Shares”) for such Note as described in Section 5(c)(ii) hereof; provided that (A) such increase in the
Conversion Rate shall not take place if such Change of Control is not consummated, (B) the Company shall issue shares of
Common Stock at the Conversion Rate (excluding such increase) on the earlier to occur of (x) the third (3rd)
Trading Day after the Conversion Date and (y) the time immediately prior to such Change of Control and (C) the Company shall
issue such Additional Shares at the time immediately prior to such Change of Control; provided, that if the issuance of any
Additional Shares would cause the Holder or any of its affiliates to beneficially own shares of Common Stock (or securities
of the Successor Entity or other issuer upon the consummation of the Change of Control) in excess of the Maximum Percentage
(a “Maximum Percentage Event”), the Holder shall have the right, exercisable by the delivery of one or
more written notices to the Company, to cause the Company to alternatively issue to the Holder such Additional Shares (or the
cash, securities and/or other consideration to be issued in exchange for such Additional Shares in such Change of Control, if
applicable), or such portion thereof as set forth in the applicable notice, on or prior to the third (3rd) Trading
Day after the Holder delivers the applicable notice to the Company (or the Public Successor Entity or other issuer, as
applicable) that the issuance of such Additional Shares (or the cash, securities and/or other consideration to be issued in
exchange for such Additional Shares in such Change of Control, if applicable), or such portion thereof as set forth in the
applicable Notice, would not result in a Maximum Percentage Event.


 


(ii)The
number of Additional Shares will be determined by the quotient of (x) the Additional Share Amount and (y) the lowest of (A) the
Conversion Price as in effect on the Trading Day immediately prior to the applicable Conversion Date, (B) 80% of the lowest Closing
Bid Price of the Common Stock during the period beginning on and including the earlier to occur of (I) any oral or written agreement
by the Company or any of its Subsidiaries, which upon consummation of the transaction contemplated thereby would reasonably be
expected to result in a Change of Control and (II) the Holder’s receipt of a Change of Control Notice and ending on and including
the Trading Day immediately prior to the applicable Conversion Date and (C) 80% of the VWAP for the five (5) Trading Day period
immediately preceding the applicable Conversion Date.


 






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


 


(a)Purchase
Rights. In addition to any adjustments pursuant to Section 7 below, if at any time the Company grants, issues or
sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the
record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note
(without taking into account any limitations or restrictions on the convertibility of this Note) 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 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).


 


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


 






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7.RIGHTS
UPON ISSUANCE OF OTHER SECURITIES.


 


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


 


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


 






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


 


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


 






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(iv)Calculation
of Consideration Received. If any Option or Convertible Security or Adjustment Right is issued or deemed issued in connection
with the issuance or sale or deemed issuance or sale of any other securities of the Company, together comprising one integrated
transaction, (x) such Option or Convertible Security (as applicable) or Adjustment Right (as applicable) will be deemed to have
been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold
or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal
to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) the Black Scholes Consideration
Value of each such Option or Convertible Security (as applicable) or Adjustment Right (as applicable). If any shares of Common
Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received
therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock,
Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received
by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities,
in which case the amount of consideration received by the Company for such securities will be the average VWAP of such security
for the five (5) Trading Day period immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible
Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving
entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business
of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may
be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company
and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation
(the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days
after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by
the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error
and the fees and expenses of such appraiser shall be borne by the Company.


 


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


 






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


 


(c)Holder’s
Right of Alternative Conversion Price.  Subject to Section 4(n) of the Securities Purchase Agreement, in addition
to and not in limitation of the other provisions of this Section 7, if the Company in any manner issues or sells or enters
into any agreement to issue or sell, any Common Stock, Options or Convertible Securities (any such securities, “Variable
Price Securities”) after the Subscription Date that are issuable pursuant to such agreement or convertible into or exchangeable
or exercisable for shares of Common Stock pursuant to such Options or Convertible Securities, as applicable, at a price which
varies or may vary with the market price of the shares of Common Stock, including by way of one or more reset(s) to a fixed price,
but exclusive of such formulations reflecting customary anti-dilution provisions (such as share splits, share combinations, share
dividends and similar transactions) (each of the formulations for such variable price being herein referred to as, the “Variable
Price”), the Company shall provide written notice thereof via facsimile and overnight courier to the Holder on the date
of such agreement and/or the issuance of such Convertible Securities or Options, as applicable. Subject to Section 4(n) of
the Securities Purchase Agreement, from and after the date the Company enters into such agreement or issues any such Variable
Price Securities, the Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price
for the Conversion Price upon conversion of this Note by designating in the Conversion Notice delivered upon any conversion of
this Note that solely for purposes of such conversion the Holder is relying on the Variable Price rather than the Conversion Price
then in effect. The Holder’s election to rely on a Variable Price for a particular conversion of this Note shall not obligate
the Holder to rely on a Variable Price for any future conversion of this Note.


 


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


 






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


 


(f)Adjusted
Conversion Price. If immediately following the close of business on the ten (10) consecutive Trading Days immediately following
(i) such date the applicable Registration Statement filed pursuant to the Registration Rights Agreement
shall be effective and the prospectus contained therein shall be available for the resale by the Holder of all of the Registrable
Securities (which, solely for clarification purposes, includes all shares of Common Stock issuable upon conversion of the
Notes or otherwise pursuant to the terms of the Notes and upon exercise of the Warrants (without regard for any limitations on
conversion, issuance or exercise set forth therein) in accordance with the terms of the Registration
Rights Agreement) or, (ii) if earlier, each of (x) [ ]3 or such later date thereafter when the Company shall
have satisfied its current public information requirement under Rule 144(c)(1) and (y) the initial Effective Date (as defined
in the Registration Rights Agreement) (each, as applicable, an “Adjustment Date”), the Conversion Price then
in effect exceeds the Adjusted Market Price as of such Adjustment Date (the “Adjusted Conversion Price”), the
Conversion Price hereunder shall be reset to the Adjusted Conversion Price as of such Adjustment Date (each, a “Conversion
Price Adjustment”). Notwithstanding the foregoing, to the extent the Holder delivers one or more Conversion Notices
to the Company during the Adjusted Market Price Measuring Period with respect to a Conversion Price Adjustment, in addition to
the shares of Common Stock issued or issuable to the Holder with respect to each such Conversion Notice, on the later of (A) the
applicable Share Delivery Date with respect to such Conversion Notice and (B) the applicable Adjustment Date, the Holder shall
receive an additional number of shares of Common Stock equal to the difference of (x) the quotient of (I) the Conversion Amount
with respect to such Conversion Notice, divided by (II) the Adjusted Conversion Price, less (y) the number of shares of Common
Stock issued or otherwise issuable to the Holder with respect to such Conversion Notice. Except as otherwise provided in this
Section 7(f), the Adjusted Conversion Price, if any, shall not apply to any Conversion Amount converted into Common Stock
prior to such Adjustment Date.


 


 





 



 3Insert
six month anniversary of the Issuance Date


 






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8.NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation (as defined
in the Securities Purchase Agreement), Bylaws (as defined in the Securities Purchase Agreement) or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith
carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of this
Note. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any shares of
Common Stock receivable upon conversion of this Note above the Conversion Price then in effect, (ii) shall take all such actions
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares
of Common Stock upon the conversion of this Note, and (iii) shall, so long as any of the Notes are outstanding, take all action
necessary to reserve and keep available out of its authorized and unissued shares of Common Stock, solely for the purpose of effecting
the conversion of the Notes, the maximum number of shares of Common Stock as shall from time to time be necessary to effect the
conversion of the Notes then outstanding (without regard to any limitations on conversion).


 


9.RESERVATION
OF AUTHORIZED SHARES.


 


(a)Reservation.
The Company shall initially reserve out of its authorized and unissued Common Stock a number of shares of Common Stock for each
of the Notes equal to 130% of the entire Conversion Rate with respect to the entire Conversion Amount of each such Note as of the
Issuance Date. So long as any of the Notes are outstanding, the Company shall take all action necessary to reserve and keep
available out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Notes, 130%
of the number of shares of Common Stock as shall from time to time be necessary to effect the conversion of all of the Notes then
outstanding, provided that at no time shall the number of shares of Common Stock so reserved be less than the number of shares
required to be reserved by the previous sentence (without regard to any limitations on conversions) (the “Required Reserve
Amount”). The initial number of shares of Common Stock reserved for conversions of the Notes and each increase in the
number of shares so reserved shall be allocated pro rata among the holders of the Notes based on the original principal amount
of the Notes held by each holder on the Closing Date or increase in the number of reserved shares (as the case may be) (the “Authorized
Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s Notes, each
transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any shares of Common Stock
reserved and allocated to any Person which ceases to hold any Notes shall be allocated to the remaining holders of Notes, pro rata
based on the principal amount of the Notes then held by such holders.


 






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(b)Insufficient
Authorized Shares. If, notwithstanding Section 9(a), and not in limitation thereof, at any time while any of the
Notes remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to
satisfy its obligation to reserve for issuance upon conversion of the Notes at least a number of shares of Common Stock equal
to the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately take
all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the
Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting the generality of the
foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event
later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its
stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such
meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its
stockholders’ approval of such increase in authorized shares of Common Stock and to cause its board of directors to
recommend to the stockholders that they approve such proposal. In the event that the Company is prohibited from issuing
shares of Common Stock upon any conversion due to the failure by the Company to have sufficient shares of Common Stock
available out of the authorized but unissued shares of Common Stock (such unavailable number of shares of Common Stock, the
“Authorization Failure Shares”), in lieu of delivering such Authorization Failure Shares to the Holder,
the Company shall pay cash in exchange for the redemption of such portion of the Conversion Amount convertible into such
Authorized Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorization Failure Shares
and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the
Holder delivers the applicable Conversion Notice with respect to such Authorization Failure Shares to the Company and ending
on the date of such issuance and payment under this Section 9(b) and (ii) to the extent the Holder purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of
Authorization Failure Shares, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in
connection therewith. Nothing contained in Section 9(a) or this Section 9(b) shall limit any obligations of the Company
under any provision of the Securities Purchase Agreement.


 






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10.HOLDER’S
REDEMPTIONS.


 


(a)Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within two (2) Business Days
after the Company’s receipt of the Holder’s Event of Default Redemption Notice. If the Holder has submitted a Change
of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of Control
Redemption Price to the Holder in cash concurrently with the consummation of such Change of Control if such notice is received
prior to the consummation of such Change of Control and within two (2) Business Days after the Company’s receipt of such
notice otherwise. The Company shall deliver the applicable Company Optional Redemption Price to the Holder in cash on the applicable
Company Optional Redemption Date. In the event of a redemption of less than all of the Conversion Amount of this Note, the Company
shall promptly cause to be issued and delivered to the Holder a new Note (in accordance with Section 17(d)) representing
the outstanding Principal which has not been redeemed. In the event that the Company does not pay the applicable Redemption Price
to the Holder within the time period required, at any time thereafter and until the Company pays such unpaid Redemption Price
in full, the Holder shall have the option, in lieu of redemption, to require the Company to promptly return to the Holder all
or any portion of this Note representing the Conversion Amount that was submitted for redemption and for which the applicable
Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice,
(x) the applicable Redemption Notice shall be null and void with respect to such Conversion Amount, (y) the Company shall immediately
return this Note, or issue a new Note (in accordance with Section 17(d)), to the Holder, and in each case the principal
amount of this Note or such new Note (as the case may be) shall be increased by an amount equal to the difference between (1)
the applicable Redemption Price minus (2) the Principal portion of the Conversion Amount submitted for redemption and (z) the
Conversion Price of this Note or such new Notes (as the case may be) shall be automatically adjusted with respect to each conversion
effected thereafter by the Holder to the lowest of (A) the Conversion Price as in effect on the date on which the applicable Redemption
Notice is voided and (B) 75% of the lowest Closing Bid Price of the Common Stock during the period beginning on and including
the date on which the applicable Redemption Notice is delivered to the Company and ending on and including the date on which the
applicable Redemption Notice is voided. The Holder’s delivery of a notice voiding a Redemption Notice and exercise of its
rights following such notice shall not affect the Company’s obligations to make any payments of Late Charges which have
accrued prior to the date of such notice with respect to the Conversion Amount subject to such notice.


 


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


 


11.VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except
as required by law (including, without limitation, Title 7 of the Nevada Revised Statutes) and as expressly provided in this Note.


 






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12.COVENANTS.
Until all of the Notes have been converted, redeemed or otherwise satisfied in accordance with their terms:


 


(a)Rank.
All payments due under this Note (i) shall rank pari passu with all Other Series B Notes, (ii) shall rank junior to all
Series A Notes in accordance with the terms of the Subordination Agreement (as defined in the Securities Purchase Agreement) and
(iii) except for Permitted Indebtedness secured by Permitted Liens, shall be senior to all other Indebtedness of the Company and
its Subsidiaries.


 


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


 


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


 


(d)Restricted
Payments. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, redeem,
defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness
(other than the Notes), whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness
if at the time such payment is due or is otherwise made or, after giving effect to such payment, (i) an event constituting an Event
of Default has occurred and is continuing or (ii) an event that with the passage of time and without being cured would constitute
an Event of Default has occurred and is continuing.


 


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


 


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


 






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


 


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


 


(i)Preservation
of Existence, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its
existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified
and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction
of its business makes such qualification necessary. Notwithstanding the foregoing, the Company may dissolve or merge any Subsidiary
which is no longer active or which it deems in its sole and absolute discretion no longer to be materially necessary to its business.


 


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


 


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


 






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13.MANDATORY
CONVERSION. If at any time after tenth (10th) calendar day after the
end of the initial Adjusted Market Price Measuring Period hereunder, (i) the Closing Sale Price of the Common Stock listed on
the Principal Market exceeds the Conversion Price by 250% for twenty (20) consecutive Trading Days (the
“Company Optional Redemption Measuring Period”), and (ii) no Equity Conditions Failure then exists, the
Company shall have the right to require the Holder to convert all, or any part, of the Conversion
Amount of this Note, as designated in the Mandatory Conversion Notice (as defined below) into fully paid, validly issued and
nonassessable shares of Common Stock in accordance with Section 3(c) hereof at the Conversion Rate as of
the Mandatory Conversion Date (as defined below) (a “Mandatory Conversion”). The Company may exercise its
right to require conversion under this Section 13 by
delivering within not more than twenty (20) Trading Days following the end of such Mandatory Conversion Measuring Period
a written notice thereof by facsimile and overnight courier to all, but not less than all, of the holders of Notes and the
Transfer Agent (the “Mandatory Conversion Notice” and the date all of the holders received such notice by
facsimile is referred to as the “Mandatory Conversion Notice Date”). The Mandatory Conversion Notice shall
be irrevocable. The Mandatory Conversion Notice shall state (i) the Trading Day selected for the Mandatory Conversion in
accordance with this Section 13, which Trading Day shall
be no less than twenty (20) calendar days and no more than thirty (30) calendar days following the Mandatory Conversion
Notice Date (the “Mandatory Conversion Date”), (ii) the aggregate Conversion Amount, of the Notes subject
to mandatory conversion from the Holder and all of the holders of the Notes pursuant to this Section 13 (and
analogous provisions under the Other Notes), (iii) the number of shares of Common Stock to be issued to such Holder on the
Mandatory Conversion Date and (iv) that there has been no Equity Conditions Failure; provided, however, that the Company may
not effect a Mandatory Conversion under this Section in excess of the Holder Pro Rata Amount of the applicable Mandatory
Conversion Volume Limitation. Notwithstanding the foregoing, the Company may effect only one (1) Mandatory Conversion during
any twenty (20) consecutive Trading Days. Any shares of Common Stock
delivered in connection with a Mandatory Conversion hereunder shall be accompanied by a payment in cash (the
“Mandatory Conversion Interest”) equal to the amount of any accrued and unpaid Interest with respect to
such Conversion Amount subject to such Mandatory Conversion and accrued and unpaid Late Charges, if any, with respect to such
Conversion Amount and Interest. Notwithstanding anything herein to the contrary, (i) if the Closing Sale Price of the
Common Stock listed on the Principal Market fails to exceed the Conversion Price by 200% for each Trading Day commencing on
the Mandatory Conversion Notice Date and ending and including the Trading Day immediately prior to the applicable Mandatory
Conversion Date (a “Mandatory Conversion Price Failure”) or an Equity Conditions Failure occurs at any
time prior to the Mandatory Conversion Date, (A) the Company shall provide the Holder a subsequent notice to that effect and
(B) unless the Holder waives the applicable Equity Conditions Failure and/or Mandatory Conversion Price Failure, as
applicable, the Mandatory Conversion shall be cancelled and the applicable Mandatory Conversion Notice shall be null and void
and (ii) at any time prior to the date the Mandatory Conversion Price is paid, in full, the Mandatory Conversion Amount may
be converted, in whole or in part, by the Holders into shares of Common Stock pursuant to Section 3. All
Conversion Amounts converted by the Holder after the Mandatory Conversion Notice Date shall reduce the Mandatory Conversion
Amount of this Note required to be redeemed on the Mandatory Conversion Date. Redemptions made pursuant to this
Section 13 shall be made in accordance with Section 10.
Notwithstanding anything in this Section 13 to the contrary, the Holder
may, at its sole option, at any time on prior to the third Trading Day prior to the Mandatory Conversion Date, by written
notice to the Company, elect to receive the Mandatory Conversion Interest in the form of Interest Shares, which Interest
Shares shall be delivered by the Company to the Holder in the manner provided in Section 2 as
if the Mandatory Conversion Date was an “Interest Date” for all purposes hereunder; provided, that nothing
in this Section 13 shall be deemed to amend or waive the Company’s
obligation to pay Interest hereunder on each Interest Date pursuant to Section 2 and
the Mandatory Conversion Price and Mandatory Conversion Interest, as applicable, shall be adjusted for any Interest paid to
the Holder prior to the Mandatory Conversion Date in accordance with Section 2.


 






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14.PARTICIPATION.
In addition to any adjustments pursuant to Section 7, the Holder, as the holder of this Note, shall be entitled to
receive such dividends paid and distributions made to the holders of Common Stock to the same extent as if the Holder had converted
this Note into Common Stock (without regard to any limitations on conversion herein or elsewhere) and had held such shares of
Common Stock on the record date for such dividends and distributions. Payments under the preceding sentence shall be made concurrently
with the dividend or distribution to the holders of Common Stock (provided, however, to the extent that the Holder’s right
to participate in any such dividend or distribution would result in the Holder exceeding the Maximum Percentage, then the Holder
shall not be entitled to participate in such dividend or distribution to such extent (or the beneficial ownership of any such
shares of Common Stock as a result of such dividend or distribution to such extent) and such dividend or distribution to such
extent shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Maximum Percentage).


 


15.AMENDING
THE TERMS OF THIS NOTE. The prior written consent of the Required Holders shall be
required for any change or amendment to this Note. No consideration shall be offered or paid to the Holder to amend or consent
to a waiver or modification of any provision of this Note unless the same consideration is also offered to all of the holders of
the Other Notes. The Holder shall be entitled, at its option, to the benefit of any amendment to any of the Other Notes.


 


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


 


17.REISSUANCE
OF THIS NOTE.


 


(a)Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith
issue and deliver upon the order of the Holder a new Note (in accordance with Section 17(d)), registered as the Holder
may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding
Principal is being transferred, a new Note (in accordance with Section 17(d)) to the Holder representing the outstanding
Principal not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by
reason of the provisions of Section 3(c)(iii) following conversion or redemption of any portion of this Note, the
outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note.


 


(b)Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice
as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company
in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall
execute and deliver to the Holder a new Note (in accordance with Section 17(d)) representing the outstanding Principal.


 






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(c)Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for a new Note or Notes (in accordance with Section 17(d) and in principal amounts of
at least $1,000) representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent
such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.


 


(d)Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall
be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding
(or in the case of a new Note being issued pursuant to Section 17(a) or Section 17(c), the Principal designated by the
Holder which, when added to the principal represented by the other new Notes issued in connection with such issuance, does not
exceed the Principal remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have
an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have
the same rights and conditions as this Note, and (v) shall represent accrued and unpaid Interest and Late Charges on the Principal
and Interest of this Note, from the Issuance Date.


 


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


 


 






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


 


20.CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the Holder
and shall not be construed against any Person as the drafter hereof. The headings of this Note are for convenience of reference
and shall not form part of, or affect the interpretation of, this Note. Terms used in this Note but defined in the other Transaction
Documents shall have the meanings ascribed to such terms on the Closing Date in such other Transaction Documents unless otherwise
consented to in writing by the Holder.


 


21.FAILURE
OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise
of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. No waiver shall
be effective unless it is in writing and signed by an authorized representative of the waiving party.


 


22.DISPUTE
RESOLUTION. In the case of a dispute as to the determination of the Conversion Price,
the Company Conversion Price, any Redemption Price, the Closing Bid Price, the Closing Sale Price or fair market value (as the
case may be) or the arithmetic calculation of the Conversion Rate or the applicable Redemption Price (as the case may be), the
Company or the Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may
be) via facsimile (i) within two (2) Business Days after receipt of the applicable notice giving rise to such dispute to the Company
or the Holder (as the case may be) or (ii) if no notice gave rise to such dispute, at any time after the Holder learned of the
circumstances giving rise to such dispute (including, without limitation, as to whether any issuance or sale or deemed issuance
or sale was an issuance or sale or deemed issuance or sale of Excluded Securities). If the Holder and the Company are unable to
agree upon such determination or calculation within two (2) Business Days of such disputed determination or arithmetic calculation
(as the case may be) being submitted to the Company or the Holder (as the case may be), then the Company shall, within two (2)
Business Days, submit via facsimile (a) the disputed determination of the Conversion Price, the Company Conversion Price, any Redemption
Price, the Closing Bid Price, the Closing Sale Price or fair market value (as the case may be) to an independent, reputable investment
bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the Conversion Rate or any
Redemption Price (as the case may be) to an independent, outside accountant selected by the Holder that is reasonably acceptable
to the Company. The Company shall cause at its expense the investment bank or the accountant (as the case may be) to perform the
determinations or calculations (as the case may be) and notify the Company and the Holder of the results no later than ten (10)
Business Days from the time it receives such disputed determinations or calculations (as the case may be). Such investment bank’s
or accountant’s determination or calculation (as the case may be) shall be binding upon all parties absent demonstrable error.


 






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23.NOTICES;
CURRENCY; PAYMENTS.


 


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


 


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


 


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


 






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


 


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


 


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


 


27.JUDGMENT
CURRENCY.


 


(a)If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary
to convert into any other currency (such other currency being hereinafter in this Section 27 referred to as the
“Judgment Currency”) an amount due in U.S. dollars under this Note, the conversion shall be made at the
Exchange Rate prevailing on the Trading Day immediately preceding:


 






    	31



    	 



    
 


 


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


 


(ii)the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date
as of which such conversion is made pursuant to this Section 27(a)(ii) being hereinafter referred to as the
“Judgment Conversion Date”).


 


(b)If
in the case of any proceeding in the court of any jurisdiction referred to in Section 27(a)(ii) above, there is a change
in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the
applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency,
when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of US dollars which could have
been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate
prevailing on the Judgment Conversion Date.


 


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


 


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


 


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


 


(a)“Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any
issuance or sale (or deemed issuance or sale in accordance with Section 7) of shares of Common Stock (other than rights of
the type described in Sections 6 or 14 hereof) that could result in a decrease in the net consideration received by the
Company in connection with, or with respect to, such securities (including, without limitation, any cash settlement rights,
cash adjustment or other similar rights).


 


(b)“Additional
Share Amount” means, as to any Conversion Amount being converted in connection with a Change of Control, an amount equal
to the present value of the difference between (i) Interest that, but for the applicable conversion, would have been paid to the
Holder on such Conversion Amount from the Issuance Date through the Maturity Date and (ii) the amount of Interest already paid
to the Holder through the applicable Conversion Date.


 






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(c)“Adjusted
Market Price” means, for any given date, the lesser of (i) the initial Conversion Price and (ii) 80% of the quotient
of (A) the sum of the VWAP of the Common Stock for each of the Trading Days during the ten (10) consecutive Trading Day period
ending and including the Trading Day immediately prior to such given date, divided by (B) ten (10) (such period, the “Adjusted
Market Price Measuring Period”). All such determinations to be appropriately adjusted for any stock splits, stock dividends,
stock combinations, recapitalizations or other similar transactions during such Adjusted Market Price Measuring Period.


 


(d)“Approved
Stock Plan” means any benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the date hereof pursuant to which shares of Common Stock, options to purchase Common Stock and other equity incentive awards
may be issued to any employee, officer, director, consultant or endorser for services provided to the Company in their capacity
as such.


 


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


 


(f)“Bloomberg”
means Bloomberg, L.P.


 


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


 


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


 






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


 


(j)“Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid
price and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if
the Principal Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing
trade price (as the case may be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00
p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading
market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply,
the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported
for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such
security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Bid
Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing
Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved in accordance with the procedures in Section 22. All such determinations shall
be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions
during such period.


 


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


 


(l)“Common
Stock” means (i) the Company’s shares of common stock, $0.001 par value per share, and (ii) any capital stock
into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


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


 






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


 


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


 


(p)“Equity
Conditions” means: (i) on each day during the period beginning three months prior to the applicable date of
determination and ending on and including the applicable date of determination either (x) one
or more Registration Statements filed pursuant to the Registration Rights Agreement shall be effective
and the prospectus contained therein shall be available for the resale by the Holder of all of the Registrable Securities
(which, solely for clarification purposes, includes all shares of Common Stock issuable upon conversion of this Note
or otherwise pursuant to the terms of this Note and upon exercise of the Warrants) in accordance
with the terms of the Registration Rights Agreement and there shall not have been during such period any Grace
Periods (as defined in the Registration Rights Agreement) or (y)
all Registrable Securities shall be eligible for sale pursuant to Rule 144 without the need
for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on
conversion of the Notes, other issuance of securities with respect to the Notes and exercise of the Warrants) and no
Current Information Failure (as defined in the Registration Rights Agreement) exists or is continuing;
(ii) on each day during the period beginning three months prior to the applicable date of determination and ending on and
including the applicable date of determination (the “Equity Conditions Measuring Period”), the Common
Stock (including all Registrable Securities) is listed or designated for quotation (as
applicable) on an Eligible Market and shall not have been suspended from trading on an Eligible Market (other than
suspensions of not more than two (2) days and occurring prior to the applicable date of determination due to business
announcements by the Company) nor shall delisting or suspension by an Eligible Market have been threatened (with a reasonable
prospect of delisting occurring) or pending either (A) in writing by such Eligible Market or (B) by falling below the minimum
listing maintenance requirements of the Eligible Market on which the Common Stock is then listed or designated for quotation
(as applicable); (iii) on each day during the Equity Conditions Measuring Period, the Company shall have delivered all shares
of Common Stock issuable upon conversion of this Note on a timely basis as set forth in Section 3 hereof and all
other shares of capital stock required to be delivered by the Company on a timely basis as set forth in the other Transaction
Documents; (iv) any shares of Common Stock to be issued in connection with the event requiring determination may be issued in
full without violating Section 3(d) hereof; (v) any shares of Common Stock to be issued in connection with the event
requiring determination may be issued in full without violating the rules or regulations of the Eligible Market on which the
Common Stock is then listed or designated for quotation (as applicable); (vi) on each day during the Equity Conditions
Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall have occurred which
has not been abandoned, terminated or consummated; (vii) the Company shall have no knowledge of
any fact that would reasonably be expected to cause (1) any Registration Statement required to be filed pursuant to the
Registration Rights Agreement to not be effective or the prospectus contained therein to not be available for the resale of
all of the Registrable Securities in accordance with the terms of the Registration Rights Agreement or (2) any Registrable
Securities to not be eligible for sale pursuant to Rule 144 without the need for
registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion
of the Notes, other issuance of securities with respect to the Notes and exercise of the Warrants) and no
Current Information Failure exists or is continuing; (viii) the Holder shall not be in (and no
other Buyer shall be in) possession of any material, non-public information provided to any of them by the Company, any of
its affiliates or any of their respective employees, officers, representatives, agents or the like; (ix) on each day
during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with each, and shall not
have breached any provision, covenant, representation or warranty of any Transaction Document; (x) on each day during the
Equity Conditions Measuring Period, there shall not have occurred any Volume Failure or Price Failure; and (xi) on each day
during the Equity Conditions Measuring Period, there shall not have occurred an Event of Default or an event that with the
passage of time or giving of notice would constitute an Event of Default.


 






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(q)“Equity
Conditions Failure” means that on any day during the period commencing ten (10) Trading Days prior to the applicable
Interest Date through the applicable Interest Date, or (ii) on any day during the period commencing fifteen (15) Trading Days prior
to the applicable Company Optional Redemption Notice Date through the applicable Company Optional Redemption Date, the Equity Conditions
have not been satisfied (or waived in writing by the Holder).


 


(r)“Excluded
Securities” means any (i) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers
or consultants, endorsers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan, provided that
(A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof
pursuant to this clause (i) do not, in the aggregate, exceed more than 15% of the Common Stock issued and outstanding immediately
prior to the date hereof and (B) the exercise price of any such options is not lowered after issuance by subsequent amendment thereof,
none of such options are amended subsequent to issuance to increase the number of shares issuable thereunder and none of the terms
or conditions of any such options are subsequent to issuance otherwise materially changed in any manner that adversely affects
any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities or contractual
agreements (other than options to purchase Common Stock or other equity incentive awards issued pursuant to an Approved Stock Plan
that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion price of any such Convertible
Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i)
above) is not lowered by subsequent amendment, none of such Convertible Securities (other than standard options to purchase Common
Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are subsequently amended to increase the
number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options
to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially
changed in any manner that adversely affects any of the Buyers; (iii) the shares of Common Stock issuable upon conversion of the
Notes or otherwise pursuant to the terms of the Notes; (iv) the shares of Common Stock issuable upon exercise of the Warrants and
(v) in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, provided, that (A) the primary purpose
of such issuance is not to raise capital as determined in good faith by the Company’s board of directors, (B) the purchaser
or acquirer of the securities in such issuance solely consists of either (x) the actual participants in such strategic alliance
or strategic partnership, (y) the actual owners of such assets or securities acquired in such acquisition or merger or (z) the
stockholders, partners or members of the foregoing Persons and (C) number or amount of securities issued to such Person by the
Company shall not be disproportionate to either (x) the fair market value of such Person’s actual contribution to such strategic
alliance or strategic partnership or (y) the proportional ownership of such assets or securities to be acquired by the Company,
as applicable.


 






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(s)“Fundamental
Transaction” means that (i) the Company or any of its Subsidiaries shall, directly or indirectly, in one or more related
transactions, (1) consolidate or merge with or into (whether or not the Company or any of its Subsidiaries is the surviving corporation)
any other Person, or (2) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its
respective properties or assets to any other Person, or (3) allow any other Person to make a purchase, tender or exchange offer
that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares
of Voting Stock of the Company held by the Person or Persons making or party to, or associated or affiliated with the Persons making
or party to, such purchase, tender or exchange offer), or (4) consummate a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other
Person whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not including
any shares of Voting Stock of the Company held by the other Person or other Persons making or party to, or associated or affiliated
with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (5) reorganize,
recapitalize or reclassify the Common Stock, or (ii) any “person” or “group” (as these terms are used for
purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations promulgated thereunder) is or shall become
the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate
ordinary voting power represented by issued and outstanding Voting Stock of the Company.


 


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


 


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


 






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(v)“Interest
Conversion Price” means, with respect to any Interest Date that price which shall be the lower
of (i) the applicable Conversion Price and (ii) the price computed as 80% of the quotient of (I) the sum of the VWAP of
the Common Stock for each of the Trading Days during the ten (10) consecutive Trading Day period ending and including the Trading
Day immediately prior to such Interest Date, divided by (II) ten (10) (such period, the “Interest Measuring Period”).
All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or
similar transaction that proportionately decreases or increases the Common Stock during such Interest Measuring Period.


 


(w)“Interest
Notice Due Date” means means the sixteenth (16th) Trading Day immediately prior to the applicable Interest
Date


 


(x)“Interest
Rate” means five percent (5%) per annum, as may be adjusted from time to time in accordance with Section 2


.


 


(y)“Mandatory
Conversion Volume Limitation” means 20% of the aggregate dollar trading volume (as reported on Bloomberg) of the Common
Stock on the Principal Market over the twenty (20) consecutive Trading Day period immediately prior to the applicable Mandatory
Conversion Notice Date.


 


(z)“Market
Price” means, for any given date, the lesser of (x) $[ ]4 as adjusted for stock splits, stock dividends,
stock combinations, recapitalizations or other similar transactions) and (y) quotient of (I) the sum of the VWAP of the Common
Stock for each of the Trading Days during the ten (10) consecutive Trading Day period ending and including the Trading Day immediately
prior to such given date, divided by (II) ten (10) (such period, the “Market Price Measuring Period”). All
such determinations to be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations
or other similar transactions during such Market Price Measuring Period.


 


(aa)“Maturity
Date” shall mean [ ]5; provided, however, the Maturity Date may be extended at the option of the Holder
(i) in the event that, and for so long as, an Event of Default shall have occurred and be continuing or any event shall have
occurred and be continuing that with the passage of time and the failure to cure would result in an Event of Default or (ii)
through the date that is twenty (20) Business Days after the consummation of a Fundamental Transaction in the event that a
Fundamental Transaction is publicly announced or a Fundamental Transaction Notice is delivered prior to the Maturity Date,
provided further that if a Holder elects to convert some or all of this Note pursuant to Section 3 hereof, and the
Conversion Amount would be limited pursuant to Section 3(d) hereunder, the Maturity Date shall automatically be extended
until such time as such provision shall not limit the conversion of this Note.


 





 



4Insert the VWAP of the Common Stock
as of the close of business of the Principal Market immediately prior to the time of execution of the Securities Purchase Agreement


 


5Insert the first anniversary of
the Issuance Date











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


 


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


 


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


 


(ee)“Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) Indebtedness described in Schedule
3(s) of the Securities Purchase Agreement as in effect as of the Subscription Date; provided, that the principal amount of such
Indebtedness is not increased, the terms of such Indebtedness are not modified to impose more burdensome terms upon the Company
or any of its Subsidiaries and the terms of such Indebtedness are not materially changed in any manner that adversely affects the
Holder or any of the Buyers and (iii) Indebtedness secured by Permitted Liens described in clause (iv) of the definition of Permitted
Liens.


 


(ff)“Permitted
Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course
of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation
of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business
with respect to a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings,
(iv) Liens (A) upon or in any equipment or inventory acquired or held by the Company or any of its Subsidiaries to secure the
purchase price of such equipment or inventory or indebtedness incurred solely for the purpose of financing the acquisition or
lease of such equipment or inventory, or (B) existing on such equipment at the time of its acquisition, provided that the Lien
is confined solely to the property so acquired and improvements thereon, and the proceeds of such equipment, in either case, with
respect to indebtedness in an aggregate amount not to exceed $4 million and, if applicable, 50% or less warrant coverage (such
warrants collectively, the “Permitted Purchase Money Warrants”), (v) leases or subleases and licenses and sublicenses
granted to others in the ordinary course of the Company’s business, not interfering in any material respect with the business
of the Company and its Subsidiaries taken as a whole, (vi) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payments of custom duties in connection with the importation of goods, (vii)
Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 4(a)(x),
and (viii) Liens existing as of the Closing Date, as disclosed in the Securities Purchase Agreement.


 






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


 


(hh)“Price
Failure” means, with respect to a particular date of determination, that the quotient of (I) the sum of the VWAP of the
Common Stock for each Trading Day in the thirty (30) consecutive Trading Day period ending and including the Trading Day immediately
preceding such date of determination, divided by (II) thirty (30) (such period, the “Price Failure Measuring Period”)
is less than $0.10 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions).
All such determinations to be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations
or other similar transactions during such Price Failure Measuring Period.


 


(ii)“Principal
Market” means the OTCQB Market.


 


(jj)“Quarter”
means each of: (i) the period beginning on and including January 1 and ending on and including March 31; (ii) the period beginning
on and including April 1 and ending on and including June 30; (iii) the period beginning on and including July 1 and ending on
and including September 30; and (iv) the period beginning on and including October 1 and ending on and including December 31.


 


(kk)“Redemption
Notices” means, collectively, the Event of Default Redemption Notices, the Company Optional Redemption Notice and the
Change of Control Redemption Notices, and each of the foregoing, individually, a “Redemption Notice.”


 


(ll)“Redemption
Premium” means (i) in the case of the Events of Default described in Section ‎4(a) (other than Sections 4(a)(vii) through
4(a)(ix)), 125% or (ii) in the case of the Events of Default described in Sections 4(a)(vii) through 4(a)(ix), 100%.


 


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


 






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


 


(oo)“Required
Holders” means, at any given time, the holders of a majority of the aggregate principal amount of the Notes, outstanding
as of such time (excluding any Notes held by the Company or any of its Subsidiaries); provided, that such majority must include
Hudson Bay Master Fund Ltd (to the extent Hudson Bay Master Fund Ltd holds any Notes outstanding as of such time).


 


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


 


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


 


(rr)“Subscription
Date” means March __, 2013.


 


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


 


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


 


(uu)“Trading
Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common
Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled
to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the
final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time
of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise
designated as a Trading Day in writing by the Holder.


 


(vv)“Volume
Failure” means, with respect to a particular date of determination, that the aggregate daily dollar trading volume (as
reported on Bloomberg) of the Common Stock on the Eligible Market on which the Common Stock is listed or designated for quotation
on any Trading Day over the thirty (30) consecutive Trading Day period ending on the Trading Day immediately preceding such date
of determination (such period, the “Volume Failure Measuring Period”) is less than $150,000 (as adjusted for
any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions). All such determinations
to be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions
during such Volume Failure Measuring Period.


 






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(ww)“Voting
Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have
the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers, trustees
or other similar governing body of such Person (irrespective of whether or not at the time capital stock of any other class or
classes shall have or might have voting power by reason of the happening of any contingency).


 


(xx)VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or,
if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities
market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00
p.m., New York time, as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not
apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board
for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported
by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average
of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in
the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such
security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as
mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value
of such security, then such dispute shall be resolved in accordance with the procedures in Section 22. All such determinations
shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction
during such period.


 






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(yy)“Warrants”
has the meaning ascribed to such term in the Securities Purchase Agreement, and shall include all warrants issued in exchange therefor
or replacement thereof.


 


30.DISCLOSURE.
Upon receipt or delivery by the Company of any notice in accordance with the terms of this Note, unless the Company has in good
faith determined that the matters relating to such notice do not constitute material, non-public information relating to the Company
or any of its Subsidiaries, the Company shall within one (1) Business Day after any such receipt or delivery publicly disclose
such material, non-public information on a Current Report on Form 8-K or otherwise. In the event that the Company believes that
a notice contains material, non-public information relating to the Company or any of its Subsidiaries, the Company so shall indicate
to such Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed
to presume that all matters relating to such notice do not constitute material, non-public information relating to the Company
or its Subsidiaries. Nothing contained in this Section 30


shall limit any obligations of the Company, or any rights of the Holder, under Section 4(i) of the Securities
Purchase Agreement.


 


[signature page follows]


 




    	43



    	 



    

 


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


 

















	 	
	 	Fuse
                                           Science, Inc.

        

	 	 
	 	By:                                                           
	 	Name:
	 	Title:
	 	 




 








    	44



    	 



    

 


EXHIBIT
I


 


Fuse
Science, Inc.

CONVERSION NOTICE


 


Reference
is made to the Series B Senior Subordinated Convertible Note (the “Note”) issued to the undersigned by Fuse
Science, Inc., a Nevada corporation (the “Company”). In accordance with and pursuant to the Note, the undersigned
hereby elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into shares of Common Stock,
$0.001 par value per share (the “Common Stock”), of the Company, as of the date specified below. Capitalized
terms not defined herein shall have the meaning as set forth in the Note.


 








	Date
    of Conversion:	 
	 	 
	Aggregate
                                                                Principal to be converted:
	 
	 	 
	Aggregate
    accrued and unpaid Interest and accrued and unpaid Late Charges with respect to such portion of
    the Aggregate Principal and such Aggregate Interest to be converted:	 
	 	 
	AGGREGATE
    CONVERSION AMOUNT TO BE CONVERTED:	 
	 	 
	Please
    confirm the following information:	 
	 	 
	Conversion
    Price:	 
	 	 
	Number
    of shares of Common Stock to be issued:	 
	 	 
	Please
    issue the Common Stock into which the Note is being converted in the following name and to the following address:	 
	 	 
	Issue
    to:	 
	 	 
	Facsimile
    Number:	 
	 	 
	Holder:	 
	 	 
	By:

                                                                
	 
	 	 
	Title: 
	 
	 	 
	Dated:	 
	 	 
	Account
    Number:	 
	 	 
	(if
    electronic book entry transfer)	 
	 	 
	Transaction
    Code Number:	 
	 	 
	(if
                                           electronic book entry transfer)

        
	 









 




    	45



    	 



    

 


ACKNOWLEDGMENT


 


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


 




















	 	
	 	Fuse
                                           Science, Inc.

        

	 	 
	 	By:                                                           
	 	Name:
	 	Title:
	 	 




 





 



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