UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): June 19, 2015
VAPOR
CORP.
(Exact
name of registrant as specified in its charter)
Delaware |
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001-36469 |
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84-1070932 |
(State
or Other Jurisdiction |
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(Commission |
|
(I.R.S.
Employer |
of
Incorporation) |
|
File
Number) |
|
Identification
No.) |
3001
Griffin Road
Dania
Beach, Florida 33312
(Address
of Principal Executive Office) (Zip Code)
(888)
766-5351
(Registrant’s
telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
[ ] |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
[ ] |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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|
[ ] |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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|
[ ] |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item
1.01 |
Entry into
a Material Definitive Agreement. |
On
June 25, 2015, Vapor Corp. (the “Company”) closed on a Securities Purchase Agreement, dated as of June 22, 2015, with
certain purchasers pursuant to which the Company sold, at a 5% original issue discount, a total of $1,750,000 convertible debentures
(the “Debentures”). Net proceeds to the Company from sale of the Debentures, after payment of commissions and legal
fees of the lead investor, were $1,466,250. The Debentures mature December 22, 2015, and accrue interest at 10% per year. Amounts
of principal and accrued interest under the Debentures are convertible into common stock of the Company at a price per share of
$0.50. Principal and accrued interest on the Debentures are payable in three approximately equal installments on September 22,
2015, October 22, 2015 and December 22, 2015, at the election of the holders of the Debentures, (i) in cash for an additional
25% premium, or (ii) in common stock of the Company at a price per share of $0.50. As lead investor under the Securities Purchase
Agreement, Redwood Management, LLC received a right of first refusal to purchase up to 100% of the securities offered by the Company
in future private placement offerings through December 22, 2015.
The
Company’s obligations under the Debentures can be accelerated in the event the Company undergoes a change in control and
other customary events of default. In the event of default and acceleration of the Company’s obligations, the Company would
be required to pay 130% of amounts of principal and interest then outstanding under the Debentures. The Company’s obligations
under the Debentures are secured under a Security Agreement, under which Redwood Management, LLC acts as Collateral Agent, by
a second lien on substantially all of the Company’s assets, including all of the Company’s interests in its consolidated
subsidiaries.
For
acting as placement agent in the offering of the Debentures, the Company paid Chardan Capital Management, LLC (the “Placement
Agent”) a fee equal to 10% of the gross proceeds from the sale of the Debentures, and issued the Placement Agent 350,000
five-year warrants exercisable at $0.50 per share. In addition, the Company agreed to reduce the exercise price of 143,072 warrants
held by the Placement Agent to $0.50 from their original exercise prices ranging from $2.01 to $2.41.
The
Debentures and Placement Agent warrants were issued without registration under the Securities Act of 1933 in reliance upon the
exemption provided in Section 4(a)(2) and Rule 506(b) thereunder.
Item
2.03 |
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The
disclosure under Item 1.01 is incorporated by reference herein.
Item
3.02 |
Unregistered
Sales of Equity Securities. |
The
disclosure under Item 1.01 is incorporated by reference herein.
In
addition, on June 19, 2015, the Company entered into agreements (the “Waivers”), with certain investors in each of
its private placement offerings under the Securities Purchase Agreement dated March 3, 2015 (the “2015 Agreement”)
and the Securities Purchase Agreement dated November 14, 2014 (the “2014 Agreement,” and with the 2015 Agreement,
the “Agreements”). Under the terms of the Waivers, the signatories thereto (the “Prior Investors”) agreed
to amend the Agreements and waive or modify certain terms thereunder, including certain price protection provisions and participation
rights in subsequent securities offerings. In exchange, the Company agreed to issue the Prior Investors a total of 3,239,507 shares
of common stock (including 710,000 shares issued to the lead investor under each of the Agreements in its capacity as lead investor)
and 2,978,427 five-year warrants exercisable at $0.505 per share. In the event that, prior to November 14, 2015, the Company issues
shares of common stock, or securities convertible into common stock, at an effective price per share of less than $0.54, the Prior
Investors will be entitled to the issuance of additional shares (the “Additional Shares”), the exact amount of which
will depend on the effective price per share of such subsequent issuance, but which will not exceed a total of 11,642,990 shares.
The Company will not issue any shares of common stock requiring shareholder approval under the Rules of the Nasdaq Stock Market
without receipt of such approval. The Company will not issue any of the Additional Shares unless the 3,239,507 shares of common
stock, the shares issuable upon conversion of the Debentures and the Additional Shares are either within the 19.9% Nasdaq limitation
or the issuance is approved by shareholders. The Company agreed to file a registration statement with the Securities and Exchange
Commission registering the shares and warrant shares issued to the Prior Investors under the Waivers.
Further,
on June 16, 2015, the Company issued a total of 1,460,955 shares of common stock upon the vesting of restricted stock units assumed
by the Company in connection with its merger with Vaporin, Inc. effective March 4, 2015. Recipients of the shares issued upon
vesting of the restricted stock units included Gregory Brauser, the Company’s president and a member of the board of directors.
In addition, on May 27, 2015, the Company issued a total of 137,500 shares of common stock to consultants of the Company for consulting
services. The shares issued June 16, 2015 and May 27, 2015 were not previously reported in accordance with Item 3.02(b) under
Form 8-K.
The
shares and warrants issued under the Waivers, the shares issued upon vesting of the restricted stock units, and the shares issued
to consultants, were issued without registration under the Securities Act of 1933 in reliance upon the exemption provided in Section
4(a)(2).
Item
9.01 Financial Statements and Exhibits.
Exhibit
No. |
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Exhibit |
10.1 |
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Form
of Securities Purchase Agreement, dated as of June 22, 2015* |
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10.2 |
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Form
of Security Agreement, dated as of June 22, 2015* |
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10.3 |
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Form
of Senior Secured Convertible Debenture, due December 22, 2015 |
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10.4 |
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Form
of Waiver Agreement relating to November 14, 2014 Securities Purchase Agreement* |
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10.5 |
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Form
of Waiver Agreement relating to March 3, 2015 Securities Purchase Agreement* |
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10.6 |
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Form
of Warrant, dated as of June 19, 2015 |
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10.7 |
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Form
of Registration Rights Agreement, dated as of June 19, 2015 |
* Certain
schedules, appendices and exhibits to this agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A
copy of any omitted schedule and/or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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VAPOR
CORP. |
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|
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Date:
June 25, 2015 |
By: |
/s/ James
Martin |
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Name: |
James
Martin |
|
Title: |
Chief
Financial Officer |
Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of June 22, 2015, between Vapor Corp., a Delaware
corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell
to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company
as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have
the meanings given to such terms in the Debenture (as defined herein), and (b) the following terms have the meanings set forth
in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.6.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Authorized
Shares Amendment” shall have meaning ascribed to such term in Section 4.14.
“Authorized
Shares Shareholder Approval” shall have meaning ascribed to such term in Section 4.14.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action
to close.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto in connection with the Closing, and all conditions precedent to (i) the Purchasers’ obligations to pay the
Purchase Price and (ii) the Company’s obligations to deliver the Debentures have been satisfied or waived.
“Closing”
means the closing of the purchase and sale of the Debentures pursuant to Section 2.2.
“Closing
Statement” means the Closing Statement in the form of Annex A attached hereto.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
“Conversion
Price” shall have the meaning ascribed to such term in the Debentures.
“Conversion
Shares” shall have the meaning ascribed to such term in the Debentures.
“Debentures”
means the Original Issue Discount Senior Secured Convertible Debentures in the form of Exhibit A attached hereto.
“Disclosure
Schedules” shall have the meaning ascribed to such term in Section 3.1.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(q).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, restricted stock units or options to employees, officers,
consultants or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors
or a committee of the Board of Directors established for such purpose, (b) securities issuable pursuant to the Transaction Documents
or upon the exercise or exchange of or conversion of any Securities issued under the Transaction Documents and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this Agreement to increase the number of such securities
or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued for consideration
other than cash pursuant to a merger, consolidation, acquisition, or similar business combination approved by the Board of Directors,
(d) securities issued pursuant to an equipment loan or leasing arrangement, real property leasing arrangement or debt financing
from a bank or similar financial institution approved by the Board of Directors, (e) shares of Common Stock issued to holders
of securities of the Company in exchange for waivers of covenants, (f) issuance of warrants or Common Stock upon exercise of warrants
pursuant to a fully marketed registered public offering, (g) securities issued pursuant to acquisitions or strategic transactions,
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business, but shall not include a transaction in which the Company
is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities,
and (h) securities with respect to which the holders of the majority of the outstanding principal under the Debentures have waived
their anti-dilution rights.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).
“Legend
Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(m).
“Maximum
Rate” shall have the meaning ascribed to such term in Section 5.17.
“Nasdaq
Shareholder Approval” shall have the meaning ascribed to such term in Section 4.15.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Principal
Amount” means, as to each Purchaser, the amount set forth below such Purchaser’s signature block on the signature
pages hereto next to the heading “Principal Amount,” in United States Dollars, which shall equal such Purchaser’s
Subscription Amount multiplied by (20/19).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.3(b).
“Public
Information Failure Payments” shall have the meaning ascribed to such term in Section 4.3(b).
“Purchase
Price” shall have the meaning ascribed to such term in Section 2.1.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.9.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Required
Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable
in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon conversion in full of the Debentures
(including Underlying Shares issuable as payment of interest on the Debentures), ignoring any conversion or exercise limits set
forth therein, and assuming that the Conversion Price is at all times on and after the date of determination 100% of the then
Conversion Price on the Trading Day immediately prior to the date of determination.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Debentures and the Underlying Shares.
“Security
Agreement” means the Security Agreement between the Company and the Collateral Agent named therein, substantially in
the form of Exhibit D hereto.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.
“Subscription
Amount” means, as to each Purchaser, the amount set forth below such Purchaser’s signature block on the signature
pages hereto next to the heading “Subscription Amount,” in United States Dollars,
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on
the date in question: the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE MKT, the
New York Stock Exchange, OTCQX or OTCQB (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Debentures, the Security Agreement, the Transfer Agent Instruction Letter, and
all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions
contemplated hereunder.
“Transfer
Agent” means Equity Stock Transfer, the current transfer agent of the Company, with a mailing address of 237 W 37th
St. Suite 601, New York, NY 10018, and a phone number of 917-746-4595, and any successor transfer agent of the Company.
“Transfer
Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent
to issue Underlying Shares pursuant to the Transaction Documents, in the form of Exhibit B attached hereto.
“Underlying
Shares” means the shares of Common Stock issued and issuable upon conversion of the Debentures in accordance with the
terms of the Debentures.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed
or quoted for trading on a Trading Market and if prices for the Common Stock are then reported on OTC Pink the daily volume weighted
average price of the Common Stock for such date (or the nearest preceding date) on OTC Pink, or (c) in all other cases, the fair
market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchaser and
reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Purchase.
On the Closing Date, the Purchasers shall purchase Debentures in the aggregate Principal Amount of $_________ corresponding to
$________ in Subscription Amount, in the respective Principal Amounts and Subscription Amounts for each Purchaser set forth on
the signature pages hereto. In consideration thereof, each Purchaser shall pay the Subscription Amount set forth for such Purchaser
as set forth on the signature pages hereto (the “Purchase Price”).
2.2 Form
of Payment. On the Closing Date, (i) each Purchaser shall pay the Purchase Price to Company by wire transfer of immediately
available funds in United States dollars to the Company, in accordance with the Company’s written wiring instructions; and
(ii) the Company shall deliver the duly executed Debentures in the respective Principal Amounts to the Purchasers, against delivery
of such Purchase Price. Upon satisfaction of the covenants and conditions set forth in Sections 2.3 for Closing, the Closing shall
occur at the offices of the Company or such other location as the parties shall mutually agree.
2.3 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii) a
legal opinion of counsel to the Company, substantially in the form of Exhibit C attached hereto;
(iii) the
Transfer Agent Instruction Letter duly executed by the Company and the Transfer Agent, substantially in the form of Exhibit
B;
(iv)
the Closing Statement duly executed by the Company;
(v)
a Debenture with a principal amount equal to such Purchaser’s Principal Amount, registered in the name of such Purchaser;
and
(vi)
the Security Agreement duly executed by the Company.
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, as applicable, the following:
(i) this
Agreement duly executed by such Purchaser;
(ii) such
Purchaser’s Purchase Price by wire transfer to the account specified in writing by the Company pursuant to the Closing Statement;
and
(iii) the
Security Agreement, duly executed by the Collateral Agent thereunder.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed
a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly
or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the
issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free
of preemptive and similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in
any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(d) No
Conflicts. Except as disclosed on Schedule 3.1(d), the execution, delivery and performance by the Company of this Agreement
and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it
of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii)
conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result
in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected,
or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to
result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than the
filing of Form D and a Current Report on Form 8-K with the Commission, the Authorized Shares Shareholder Approval, the Nasdaq
Shareholder Approval, the making of any filings, or the obtaining of any approvals required by the Nasdaq Capital Market, and
such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f) Issuance
of the Securities. the Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction Documents and applicable securities laws. The Underlying Shares,
when issued in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free
and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents and
applicable securities laws. The Company has reserved from its duly authorized capital stock a number of shares of Common Stock
for issuance of the Underlying Shares at least equal to 100% of the Required Minimum on the date hereof. Within three Business
Days of the Company’s filing of the Authorized Shares Amendment, the Company will reserve from its duly authorized capital
stock a number of shares of Common Stock for issuance of the Underlying Shares at least equal to 300% of the Required Minimum.
(g) Capitalization.
The capitalization of the Company is as set forth in Schedule 3.1(g), which Schedule 3.1(g) shall also include the number
of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The Company has
not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the
exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees
pursuant to the Company’s employee stock purchase plans, pursuant to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic report under the Exchange Act and as disclosed on Schedule3.1(g).
The issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any
Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise,
conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company
are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities
laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for
or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required
for the issuance and sale of the Securities other than the Required Approvals. There are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders other than as set forth in the SEC Reports.
(h) SEC
Reports; Financial Statements. The Company has timely filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Reports”). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time
of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as
of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments. For more than one year, the Company has not been a shell
issuer as that term is defined by Rule 144(i) under the Securities Act of 1933.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest financial statements included within
the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof: (i) there has been
no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in
the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, and (iv) the Company has not declared or made any dividend or distribution of cash or
other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital
stock. The Company does not have pending before the Commission any request for confidential treatment of information. Except for
the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect
to the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition, that
would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.
(j) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the
Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.
There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order
or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of
the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries
believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company
or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company
or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are
in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance.
Except as disclosed on Schedule 3.1(l), neither the Company nor any Subsidiary: (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company
or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that
it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or
by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation
of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation
of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal,
state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse
Effect.
(m) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit.
(n) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries, (ii) Liens
for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP
and, the payment of which is neither delinquent nor subject to penalties, and (III) Liens as disclosed on Schedule 3.1(n). Any
real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are in compliance, except where the failure to so comply will not
result in a Material Adverse Effect.
(o) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights as described in the SEC Reports as necessary or required for use in connection with their respective businesses
and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2)
years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited
financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual
Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have
a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property Rights, except as disclosed on Schedule 3.1(o).
The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of
all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(p) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or
any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party
to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case
in excess of $120,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option
plan of the Company.
(q) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof and as of the applicable Closing Date. Except as disclosed
on Schedule 3.1(q), the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and
procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company
and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such
date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(r) Certain
Fees. Other than as set forth on Schedule 3.1(r), no brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall
have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a
type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(s) Private
Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated
hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.
(t) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will
not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as
amended. The Company shall, while the Debentures are outstanding, conduct its business in a manner so that it will not become
an “investment company” subject to registration under the Investment Company Act of 1940, as amended.
(u) Registration
Rights. Except as disclosed on Schedule 3.1(u), Person has any right to cause the Company to effect the registration under
the Securities Act of any securities of the Company or any Subsidiaries.
(v) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act nor except as disclosed on Schedule 3.1(v), has the Company received any notification that
the Commission is contemplating terminating such registration. The Common Stock is listed on the Nasdaq Capital Market. The Company
has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has
been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements.
(w) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and
the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation
as a result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(x) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor any other Person acting on its behalf has provided the Purchasers or their agents or counsel with
any information that it believes constitutes or might constitute material, non-public information, except as disclosed on Schedule
3.1(x). The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company
and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules
to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole
do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(y) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering
of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require
the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are listed or designated.
(z) No
General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchaser
and certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
(aa) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent
or other person acting on behalf of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person
acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any
provision of FCPA.
(bb) Accountants.
The Company’s accounting firm is Marcum LLP. To the knowledge and belief of the Company, such accounting firm is a registered
public accounting firm as required by the Exchange Act.
(cc) No
Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company which
could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents and the Company
is current with respect to any fees owed to its accountants and lawyers.
(dd) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each Purchaser is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given
by any Purchaser or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated
thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser
that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the
independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(ee) Intentionally
Omitted.
(ff) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting
purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase
any other securities of the Company.
(gg) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance
with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value
of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has
been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of
stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries
or their financial results or prospects.
(hh) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(ii) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon any Purchaser’s
request.
(jj) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System
(the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(kk) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser hereby represents and warrants as
of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein):
(a) Organization;
Authority. Such Purchaser is an entity duly incorporated or formed, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar
power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by
such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document
to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with
its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(b) No
Conflicts. The execution, delivery and performance by such Purchaser of this Agreement and the other Transaction Documents
to which it is a party and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i)
conflict with or violate any provision of such Purchaser’s organizational or charter documents, (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any
Lien upon any of the properties or assets of such Purchaser, or give to others any rights of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing
a Purchaser debt or otherwise) or other understanding to which such Purchaser is a party or by which any property or asset of
such Purchaser is bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority to which such Purchaser is subject (including federal
and state securities laws and regulations), or by which any property or asset of such Purchaser is bound or affected.
(c) Filings,
Consents and Approvals. Such Purchaser is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or
other Person in connection with the execution, delivery and performance by such Purchaser of this Agreement or any of the Transaction
Documents.
(d) Own
Account. Such Purchaser understands that the Securities are “restricted securities” and have not been registered
under the Securities Act or any applicable state securities law and is acquiring the Securities as principal for its own account
and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act
or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons
to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities
law (this representation and warranty not limiting such Purchaser’s right to sell the Securities in compliance with applicable
federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(e) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on
which it converts the Debenture it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act.
(f) Experience
of Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. Such Purchaser
has reviewed with its own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions
contemplated by this Agreement. Such Purchaser understands that it (and not the Company) shall be responsible for its own tax
liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
(g) General
Solicitation. Such Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented
at any seminar or any other general solicitation or general advertisement.
(h) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not
directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that
such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting
forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. While
such Purchaser beneficially owns the Securities, it will not engage in any Short Sales of the Securities of the Company. Other
than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it
in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, but
subject to Section 4.12 of this Agreement, for avoidance of doubt, nothing contained herein shall constitute a representation
or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares
to borrow in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this
Agreement or the consummation of the transaction contemplated hereby.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in
connection with a pledge as contemplated in Section 4.1(b), the Company shall require the transferor thereof to provide to the
Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such
transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be
bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser under this Agreement.
(b) The
Purchasers agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities substantially
in the following form:
[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [CONVERTIBLE] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
THIS SECURITY [AND THE SECURITIES ISSUABLE UPON [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR”
AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES, UNLESS OTHERWISE PROHIBITED BY FEDERAL
OR STATE SECURITIES LAWS.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a
registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited
investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement
and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees
or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel
of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such
pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a
pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities.
(c) Certificates
evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) following
any sale of such Underlying Shares pursuant to Rule 144, or (ii) if such Underlying Shares are eligible for sale under Rule 144
without the need for current public information or (iii) if such legend is not required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the Commission). If all or any portion of a
Debenture is converted at a time when there is an effective registration statement to cover the resale of the Underlying Shares,
or if such Underlying Shares may be sold under Rule 144 without the need for current public information or if such legend is not
otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements
issued by the staff of the Commission) then such Underlying Shares shall be, subject to the terms hereof, issued free of all legends.
The Company agrees that at such time as such legend is no longer required under this Section 4.1(c), it will, no later than three
Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Underlying
Shares together with such seller and broker representation letter and an opinion of counsel to Purchaser, reasonably acceptable
to the Company, and other documents and instruments as the Company may reasonably request, as applicable, issued with a restrictive
legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser
a certificate representing such shares that is free from all restrictive and other legends. The Company may not make any notation
on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section
4. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser
by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser.
(d) In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated
damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading
Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after
the Legend Removal Date until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s
right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required
by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity
including, without limitation, a decree of specific performance and/or injunctive relief.
4.2 Acknowledgment
of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares
of Common Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges that its
obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant
to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction
except as otherwise provided in the Transaction Documents, regardless of the effect of any such dilution or any claim the Company
may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other
stockholders of the Company.
4.3 Furnishing
of Information; Public Information.
(a) Until
the earliest of the time that no Purchaser owns Securities, the Company covenants to maintain the registration of the Common Stock
under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even
if the Company is not then subject to the reporting requirements of the Exchange Act.
(b)
At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that
all of the Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise
without restriction or limitation pursuant to Rule 144, if the Company shall fail for any reason to satisfy the current public
information requirement under Rule 144(c) (a “Public Information Failure”) then, in addition to such Purchaser’s
other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by
reason of any such delay in or reduction of its ability to sell the Securities, an amount in cash equal to two percent (2.0%)
of the aggregate Subscription Amount of such Purchaser’s Securities on the day of a Public Information Failure and on every
thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the
date such Public Information Failure is cured and (b) such time that such public information is no longer required for the Purchasers
to transfer the Underlying Shares pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section
4.3(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments
shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments
are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information
Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely
manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial
months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information
Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief.
4.4 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined
in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require
the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of
the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval
prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
4.5 Conversion
and Exercise Procedures. The form of Notice of Conversion included in the Debentures sets forth the totality of the procedures
required of the Purchasers in order to convert the Debentures. Without limiting the preceding sentence, no ink-original Notice
of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice
of Conversion form be required in order to convert the Debentures. No additional legal opinion, other information or instructions
shall be required of the Purchasers to convert their Debentures. The Company shall honor conversions of the Debentures and shall
deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.6 Shareholder
Rights Plan. The Company covenants and agrees that no claim will be made or enforced by the Company or, with the consent of
the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in
effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or
arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company
and the Purchasers.
4.7 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents or the terms of waivers which the Company is required to obtain in order to consummate the sale of the Securities, the
Company covenants and agrees that neither it, nor any other Person acting on its behalf, will provide any Purchaser or its agents
or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such
Purchaser shall have entered into a written agreement with the Company regarding the confidentiality and use of such information.
The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.
4.8 Use
of Proceeds. The Company shall use the net proceeds hereunder at its sole discretion.
4.9 Indemnification
of Purchasers. Subject to the provisions of this Section 4.9, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of
a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against
the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is
not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless
such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such
Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence,
willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may
be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any
Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time
to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will
not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that
a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification
required by this Section 4.9 shall be made by periodic payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any
cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject
to pursuant to law.
4.10 Reservation
and Listing of Securities.
(a) The
Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents
in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
(b) If,
on any date following the Company’s filing of the Authorized Shares Amendment, the number of authorized but unissued (and
otherwise unreserved) shares of Common Stock is less than 300% of the Required Minimum on such date, then the Board of Directors
shall use commercially reasonable efforts to amend the Company’s certificate or articles of incorporation to increase the
number of authorized but unissued shares of Common Stock to at least 300% of the Required Minimum at such time, as soon as possible
and in any event not later than the 75th day after such date.
(c) Subject
to Section 3.1(f) and Section 4.15, the Company shall, if applicable: (i) in the time and manner required by the principal Trading
Market, prepare and file with such Trading Market an additional shares listing application covering a number of shares of Common
Stock at least equal to the Required Minimum on the date of such application, (ii) take all steps necessary to cause such shares
of Common Stock to be approved for listing or quotation on such Trading Market as soon as possible thereafter, (iii) provide to
the Purchaser evidence of such listing or quotation and (iv) maintain the listing or quotation of such Common Stock on any date
at least equal to the Required Minimum on such date on such Trading Market or another Trading Market.
4.11 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration
is also offered to all of the parties to this Agreement. Further, the Company shall not make any payment of principal or interest
on the Debentures in amounts which are disproportionate to the respective principal amounts outstanding on the Debentures at any
applicable time. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company
and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not
in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting
of Securities or otherwise.
4.12 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither
it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any Short Sales, of any of the
Company’s securities during the period commencing with the execution of this Agreement and ending on the date that the Debentures
are no longer outstanding (provided that this provision shall not prohibit any sales made where a corresponding Notice of Conversion
is tendered to the Company and the shares received upon such conversion or exercise are used to close out such sale).
4.13 Right
of First Refusal. For a period of 6 months commencing on the Closing Date, the Company shall provide Redwood Management LLC
not less than three (3) Business Days prior written notice of any proposed sale by the Company for cash of its common stock or
other securities or debt obligations, except in connection with an Exempt Issuance or with any underwritten public offering. Redwood
Management LLC will have the right during the three (3) Business Days following receipt of the notice to purchase such offered
common stock, debt or other securities in accordance with the terms and conditions set forth in the notice of sale.
4.14 Authorized
Shares Shareholder Approval. At the Company’s annual meeting to be held on July 7, 2015, the Company shall obtain approval
of its shareholders to amend its articles of incorporation (the “Authorized Shares Amendment”) to increase its authorized
shares of Common Stock from 50,000,000 to 150,000,000 (the “Authorized Shares Shareholder Approval”). Promptly and
not later than three Business Days following obtaining the Authorized Shares Shareholder Approval, the Company shall file the
Authorized Shares Amendment with the Secretary of State of Delaware.
4.15 Nasdaq
Shareholder Approval. Within 150 days after the Closing Date, at a meeting of its shareholders held upon requisite notice
and pursuant to the rules and regulations of the Nasdaq Capital Market, the Company shall obtain the approval of its shareholders
for the issuance and/or potential issuance of all shares of Common Stock which may be issued pursuant to the conversion of the
Debentures equal to 19.99 percent or more of the Common Stock in connection with the Transaction Documents (the “Nasdaq
Shareholder Approval”). Within 21 days after receipt of the Nasdaq Shareholder Approval, the Nasdaq Capital Market shall
have approved for listing upon issuance all shares of the Company’s Common Stock issuable upon conversion of the Debentures
to be sold pursuant to this Agreement.
ARTICLE
V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by either party, by written notice to the other, if the Closing has not been consummated on or
before June 30, 2015; provided, however, that such termination will not affect the right of any party to sue for
any breach by any other party (or parties).
5.2 Fees
and Expenses. The Company shall pay the legal expenses of counsel to the Purchasers and due diligences expenses of the Purchasers,
up to $25,000. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and
any conversion or exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with
the delivery of any Securities to the Purchaser.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of
the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral
or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth on the signature pages attached hereto at or prior to 12:00 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 12:00 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Purchasers holding at least 67% in interest of the Securities then outstanding
or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future
or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of
each Purchaser (other than by merger or similar reorganization or change in control transaction). Any Purchaser may assign any
or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that
such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction
Documents that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as
otherwise set forth in Section 4.9.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), 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 improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party
shall commence an action, suit or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the
obligations of the Company under Section 4.9, the prevailing party in such action, suit or proceeding shall be reimbursed by the
other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being
understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of)
any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser
may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand
or election in whole or in part without prejudice to its future actions and rights; provided, however, that in the
case of a rescission of a conversion of a Debenture, the applicable Purchaser shall be required to return any shares of Common
Stock subject to any such rescinded conversion notice concurrently with the return to such Purchaser of the aggregate exercise
price paid to the Company for such shares.
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances
shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement
Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of
the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation
the defense that a remedy at law would be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document
or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or
exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from,
disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person
under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action),
then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17 Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim,
and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at
any time hereafter in force, in connection with any claim, action or proceeding that may be brought by any Purchaser in order
to enforce any right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in any
Transaction Document, it is expressly agreed and provided that the total liability of the Company under the Transaction Documents
for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum
Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of
them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Transaction
Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to
the Transaction Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof,
the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from
the effective date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever,
interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness evidenced by the Transaction
Documents, such excess shall be applied by such Purchaser to the unpaid principal balance of any such indebtedness or be refunded
to the Company, the manner of handling such excess to be at such Purchaser’s election.
5.18 Independent
Nature of Purchasers’ Rights and Obligations. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any
other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser
to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separate
legal counsel in its review and negotiation of the Transaction Documents. The Company has elected to provide all Purchasers with
the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do
so by any of the Purchasers.
5.19 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other
amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages
or other amounts are due and payable shall have been canceled.
5.20 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted in the Transaction Documents shall not be a Business Day, then such action may be taken or such right may be exercised
on the next succeeding Business Day.
5.21 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and
every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after
the date of this Agreement.
5.22 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
5.23
Force Majure.
No
party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for
any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the
other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure
events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities
(whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions,
embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; and (g) national
or regional emergency. The Impacted Party shall give notice within five Business Days of the Force Majeure Event to the other
party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end
the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance
of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure
or delay remains uncured for a period of 20 days following written notice given by it under this Section 5.23, any party may thereafter
terminate this Agreement upon five days’ written notice.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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VAPOR
CORP. |
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Address
for Notice: |
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3001 Griffin Road |
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Dania Beach, FL
33312 |
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Fax: |
By: |
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Name: |
Jim Martin |
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Title: |
Chief Financial
Officer |
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR PURCHASERS FOLLOW]
[PURCHASER
SIGNATURE PAGE TO vapor corp. SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name
of Purchaser: Redwood Management LLC
Signature
of Authorized Signatory of Purchaser:
Name
of Authorized Signatory:
Title
of Authorized Signatory:
Email
Address of Authorized Signatory:
Facsimile
Number of Authorized Signatory:
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $
Principal
Amount of Debenture: $
EIN Number:
_______________________
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGE TO vapor corp. SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name
of Purchaser:
Signature
of Authorized Signatory of Purchaser:
Name
of Authorized Signatory:
Title
of Authorized Signatory:
Email
Address of Authorized Signatory:
Facsimile
Number of Authorized Signatory:
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $
Principal
Amount of Debenture: $
EIN Number:
_______________________
[SIGNATURE
PAGES CONTINUE]
Exhibit
10.2
SECURITY
AGREEMENT
SECURITY
AGREEMENT, dated as of June 22, 2015 (this “Agreement”), between Vapor Corp., a Delaware corporation (the “Grantor”),
and Redwood Management, LLC, in its capacity as collateral agent (the “Collateral Agent”) on behalf of the
Secured Parties (as defined below).
The
Grantor and certain Purchasers (together with the Collateral Agent, each a “Secured Party” and collectively,
the “Secured Parties”), are or will be parties to a certain Securities Purchase Agreement (as amended, amended
and restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”), providing, subject
to the terms and conditions thereof, for the purchase of the Debentures (as defined therein).
Accordingly,
the parties hereto agree as follows:
Section
1. Definitions, Terms Generally; Etc.
1.01
Definitions. Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreements.
1.02
Certain Uniform Commercial Code Terms. As used herein, the terms “Accession”, “Account”,
“As-Extracted Collateral”, “Chattel Paper”, “Commodity Account”, “Commodity
Contract”, “Deposit Account”, “Document”, “Electronic Chattel Paper”,
“Equipment”, “Fixture”, “General Intangible”, “Goods”,
“Instrument”, “Inventory”, “Investment Property”, “Letter-of-Credit
Right”, “Payment Intangible”, “Proceeds”, “Promissory Note”,
“Software” and “Tangible Chattel Paper” have the respective meanings set forth in Article 9
of the NYUCC, and the terms “Certificated Security”, “Financial Asset”, “Instruction”,
“Securities Account”, “Security”, “Security Certificate”, “Security
Entitlement” and “Uncertificated Security” have the respective meanings set forth in Article 8
of the NYUCC.
1.03
Additional Definitions. In addition, as used herein:
“Collateral”
has the meaning assigned to such term in Section 3.
“Contingent
Secured Obligations” means obligations of the Grantor in respect of any claim that may be payable to the Secured
Party by the Grantor under any Transaction Document that is not yet due and payable.
“Copyright
Collateral” means all Copyrights of the Grantor, whether now owned or hereafter acquired by the Grantor, including each
Copyright identified in Annex 4.
“Copyrights”
means all copyrights, copyright registrations and applications for copyright registrations, including all renewals and extensions
thereof, all rights to recover for past, present or future infringements thereof and all other rights whatsoever accruing thereunder
or pertaining thereto.
“Default”
means any of the following events: (a) any of the Secured Obligations shall have been declared, or shall become, due and
payable prior to the stated maturity therefor, (b) the Grantor shall fail to pay when due any principal amount in respect of a
Secured Obligation, (c) the Grantor shall fail to pay any interest, fees, commissions, indemnities, costs and other expenses
in respect of any Secured Obligations for three or more business days after the date on which such amounts first become due or
(d) any event of default or termination (however described) under any Transaction Document shall occur and be continuing.
Annex
8 to Security Agreement
“Foreign
Subsidiary” means any subsidiary of the Grantor with respect to which the Collateral Agent determines that a pledge
of more than 66-2/3% of the total number of shares of voting stock of such subsidiary would result in material adverse tax consequences
under Section 956 of the Code.
“Initial
Pledged Shares” means the Shares of each Issuer beneficially owned by the Grantor on the date hereof and identified
in Annex 3 (Part A).
“Intellectual
Property” means, collectively, all Copyright Collateral, all Patent Collateral, all Trademark Collateral and all improvements,
modifications, derivative works now known or later developed related thereto, together with (a) all inventions, processes,
production methods, proprietary information, know-how and trade secrets; (b) all licenses or user or other agreements granted
to the Grantor with respect to any of the foregoing, in each case whether now or hereafter owned or used; (c) all information,
customer lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing standards, performance standards, catalogs, source
code computer and automatic machinery software and programs; (d) all field repair data, sales data and other information
relating to sales or service of products now or hereafter manufactured; (e) all accounting information and all media in which
or on which any information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation
or printout of such information, knowledge, records or data; (f) all licenses, consents, permits, variances, certifications
and approvals of governmental agencies now or hereafter held by the Grantor; and (g) all causes of action, claims and warranties
now or hereafter owned or acquired by the Grantor in respect of any of the items listed above.
“Issuers”
means, collectively, (a) the respective Persons identified on Annex 3 (Part A) under the caption “Issuer”,
(b) any other Person that shall at any time be a subsidiary of the Grantor, and (c) the issuer of any equity securities
hereafter owned by the Grantor.
“Liens”
means any pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, security title, mortgage,
security deed or deed of trust, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security
interest under the Uniform Commercial Code or comparable law of any jurisdiction).
“Motor
Vehicles” means motor vehicles, tractors, trailers and other like property, if the title thereto is governed by a certificate
of title or ownership.
“NYUCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Patent
Collateral” means all Patents of the Grantor, whether now owned or hereafter acquired by the Grantor, including each
Patent identified in Annex 5, and all income, royalties, damages and payments now or hereafter due and/or payable under or
with respect thereto.
“Patents”
means all patents and patent applications, including the inventions and improvements described and claimed therein together with
the reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof, all income, royalties, damages
and payments now or hereafter due and/or payable with respect thereto, all damages and payments for past or future infringements
thereof and rights to sue therefor, and all rights corresponding thereto throughout the world.
“Person”
means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).
“Permitted
Lien” means (a) Liens imposed by law for taxes that are not yet due or are being contested in good faith and for which
adequate reserves have been established in accordance with generally accepted accounting principles; (b) carriers’, warehousemen’s,
mechanic’s, material men’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith and by
appropriate proceedings; (c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations; (d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case
in the ordinary course of business; (e) Liens created with respect to the financing of the purchase of new property in the ordinary
course of the Grantor’s business up to the amount of the purchase price of such property; (f) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from the value of the affected; (g) Liens which are junior to the
Lien held by the Secured Parties hereunder; and (h) the Liens in favor of Entrepreneur Growth Capital LLC, certain note holders
who entered into a Secured Line of Credit Agreement with Emagine the Vape Stores, LLC on December 1, 2014 and the real party in
interest to the extent reflected on Exhibit A.
“Pledged
Shares” means, collectively, (i) the Initial Pledged Shares and (ii) all other Shares of any Issuer now or
hereafter owned by the Grantor, together in each case with (a) all certificates representing the same, (b) all shares,
securities, moneys or other property representing a dividend on or a distribution or return of capital on or in respect of the
Pledged Shares, or resulting from a split-up, revision, reclassification or other like change of the Pledged Shares or otherwise
received in exchange therefor, and any warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged
Shares, and (c) without prejudice to any provision of any of the Transaction Documents prohibiting any merger or consolidation
by an Issuer, all Shares of any successor entity of any such merger or consolidation.
“Secured
Obligations” means, collectively, the obligations of the Grantor to the Secured Parties in respect of the principal
of and interest on any amounts owed to the Secured Parties under the Transaction Documents, and all other amounts from time to
time owing to the Secured Parties by the Grantor under the Transaction Documents, together with in each case interest thereon
and expenses relating thereto, including any interest or expenses accruing or arising after the commencement of any case with
respect to the Grantor under the United States Bankruptcy Code or any other bankruptcy or insolvency law (whether or not such
interest or expenses are allowed or allowable as a claim in whole or in part in such case).
“Shares”
means shares of capital stock of a corporation, limited liability company interests, partnership interests and other ownership
or equity interests of any class in any Person.
“Trademark
Collateral” means all Trademarks of the Grantor, whether now owned or hereafter acquired by the Grantor, including each
Trademark identified in Annex 6, together, in each case, with the product lines and goodwill of the business connected with
the use of, and symbolized by, each such trade name, trademark and service mark. Notwithstanding the foregoing, the Trademark
Collateral does not and shall not include any Trademark that would be rendered invalid, abandoned, void or unenforceable by reason
of its being included as part of the Trademark Collateral.
“Trademarks”
means all trade names, trademarks and service marks, logos, trademark and service mark registrations, and applications for trademark
and service mark registrations, including all renewals of trademark and service mark registrations, all rights to recover for
all past, present and future infringements thereof and all rights to sue therefor, and all rights corresponding thereto throughout
the world.
Section
2. Representations and Warranties. The Grantor represents, warrants and covenants to the Secured Party that:
2.01
Names, Etc. The full and correct legal name, type of organization, jurisdiction of organization, organizational ID number
(if applicable) and mailing address of the Grantor as of the date hereof are correctly set forth in Annex 1. Said Annex 1 correctly
specifies (a) the place of business of the Grantor or, if the Grantor has more than one place of business, the location of the
chief executive office of the Grantor and (b) each location where any financing statement naming the Grantor as debtor is currently
on file.
2.02
Changes in Circumstances. The Grantor has not (a) within the period of four months prior to the date hereof, changed its location
(as defined in Section 9 307 of the NYUCC), (b) except as specified in Annex 1, heretofore changed its name, or (c) except as
specified in Annex 2, heretofore become a “new debtor” (as defined in Section 9 102(a)(56) of the NYUCC) with respect
to a currently effective security agreement previously entered into by any other Person.
2.03
Pledged Shares.
(a)
The Initial Pledged Shares constitute (i) 100% of the issued and outstanding Shares of each Issuer other than a Foreign Subsidiary
beneficially owned by the Grantor on the date hereof (other than any Shares held in a Securities Account referred to in Annex
7), whether or not registered in the name of the Grantor and (ii) in the case of each Issuer that is a Foreign Subsidiary, (A)
65% of the issued and outstanding shares of voting stock of such Issuer and (B) 100% of all other issued and outstanding shares
of capital stock of whatever class of such Issuer beneficially owned by the Grantor on the date hereof, in each case whether or
not registered in the name of the Grantor. Annex 3 (Part A) correctly identifies, as at the date hereof, the respective Issuers
of the Initial Pledged Shares.
(b)
The Initial Pledged Shares are, and all other Pledged Shares in which the Grantor shall hereafter grant a security interest pursuant
to Section 3 will be, (i) duly authorized, validly existing, fully paid and non assessable (in the case of any Shares issued by
a corporation) and (ii) duly issued and outstanding (in the case of any equity interest in any other entity), and none of such
Pledged Shares are or will be subject to any contractual restriction, or any restriction under the charter, by laws, partnership
agreement or other organizational instrument of the respective Issuer thereof, upon the transfer of such Pledged Shares (except
for any such restriction contained herein or in the Transaction Documents, or under such organizational instruments).
2.04
Promissory Notes. Annex 3 (Part B) sets forth a complete and correct list of all Promissory Notes (other than any held in
a Securities Account referred to in Annex 7) held by the Grantor on the date hereof having an aggregate principal amount in excess
of $50,000.
2.05
Intellectual Property.
(a)
Annexes 4, 5 and 6, respectively, set forth a complete and correct list of all copyright registrations, patents, patent applications,
trademark registrations and trademark applications owned by the Grantor on the date hereof (or, in the case of any supplement
to said Annexes 4, 5 and 6, effecting a pledge thereof, as of the date of such supplement).
(b)
Except pursuant to licenses and other user agreements entered into by the Grantor in the ordinary course of business that are
listed in said Annexes 4, 5 and 6 (including as supplemented by any supplement effecting a pledge thereof), the Grantor has done
nothing to authorize or enable any other Person to use any Copyright, Patent or Trademark listed in said Annexes 4, 5 and 6 (as
so supplemented), and all registrations listed in said Annexes 4, 5 and 6 (as so supplemented) are, except as noted therein, in
full force and effect.
(c)
To the Grantor’s knowledge, (i) except as set forth in said Annexes 4, 5 and 6 (as supplemented by any supplement effecting
a pledge thereof), there is no violation by others of any right of the Grantor with respect to any Copyright, Patent or Trademark
listed in said Annexes 4, 5 and 6 (as so supplemented), respectively, and (ii) the Grantor is not infringing in any respect upon
any Copyright, Patent or Trademark of any other Person; and no proceedings alleging such infringement have been instituted or
are pending against the Grantor and no written claim against the Grantor has been received by the Grantor, alleging any such violation,
except as may be set forth in said Annexes 4, 5 and 6 (as so supplemented).
(d)
The Grantor does not own any Trademarks registered in the United States of America to which the last sentence of the definition
of Trademark Collateral applies.
2.06
Deposit Accounts and Securities Accounts. Annex 7 sets forth a complete and correct list of all Deposit Accounts, Securities
Accounts and Commodity Accounts of the Grantor on the date hereof.
2.07
Commercial Tort Claims. Annex 8 sets forth a complete and correct list of all commercial tort claims of the Grantor in existence
on the date hereof.
2.08
Fair Labor Standards Act. Any goods now or hereafter produced by the Grantor or any of its subsidiaries included in the Collateral
have been and will be produced in compliance with the requirements of the Fair Labor Standards Act, as amended.
Section
3. Collateral. As collateral security for the payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the Secured Obligations in accordance with the terms of the Transaction Documents, the Grantor hereby pledges
and grants to the Collateral Agent, for the ratable benefit of the Secured Parties, as hereinafter provided a first priority (subject
to Permitted Liens) security interest in all of the Grantor’s right, title and interest in, to and under the following property,
in each case whether tangible or intangible, wherever located, and whether now owned by the Grantor or hereafter acquired and
whether now existing or hereafter coming into existence (all of the property described in this Section 3 being collectively
referred to herein as “Collateral”):
(a)
all Accounts;
(b)
all As-Extracted Collateral;
(c)
all Chattel Paper;
(d)
all Deposit Accounts;
(e)
all Documents;
(f)
all Equipment;
(g)
all Fixtures;
(h)
all General Intangibles;
(i)
all Goods not covered by the other clauses of this Section 3;
(j)
the Pledged Shares;
(k)
all Instruments, including all Promissory Notes;
(l)
all Intellectual Property;
(m)
all Inventory;
(n)
all Investment Property not covered by other clauses of this Section 3, including all Securities, all Securities Accounts
and all Security Entitlements with respect thereto and Financial Assets carried therein, and all Commodity Accounts and Commodity
Contracts;
(o)
all Letter-of-Credit Rights;
(p)
all commercial tort claims, as defined in Section 9-102(a)(13) of the NYUCC, arising out of the events described in Annex 8;
(q)
all other tangible and intangible personal property whatsoever of the Grantor; and
(r)
all Proceeds of any of the Collateral, all Accessions to and substitutions and replacements for, any of the Collateral, and all
offspring, rents, profits and products of any of the Collateral, and, to the extent related to any Collateral, all books, correspondence,
credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in
the possession or under the control of the Grantor or any computer bureau or service company from time to time acting for the
Grantor),
IT
BEING UNDERSTOOD, HOWEVER, that (A) in the case of any of the foregoing that consists of general or limited partnership interests
in a general or limited partnership, the security interest hereunder shall be deemed to be created only to the maximum extent
permitted under the applicable organizational instrument pursuant to which such partnership is formed, (B) in no event shall
the security interest granted under this Section 3 attach to any lease, license, contract, property rights or agreement to
which the Grantor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute
or result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor
therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract,
property rights or agreement (other than to the extent that any such term would be rendered ineffective by Section 9-406,
9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), and (C) the security interest
created hereby in Shares constituting voting stock of any Issuer that is a Foreign Subsidiary shall be limited to that portion
of such voting stock that does not exceed 65% of the aggregate issued and outstanding voting stock of such Issuer.
Section
4. Intentionally Omitted.
Section
5. Further Assurances; Remedies. In furtherance of the grant of the security interest pursuant to Section 3, the
Grantor hereby agrees with the Collateral Agent and the other Secured Parties as follows:
5.01
Delivery and Other Perfection. The Grantor shall promptly from time to time give, execute, deliver, file, record, authorize
or obtain all such financing statements, continuation statements, notices, instruments, documents, agreements or consents or other
papers as may be necessary or desirable in the judgment of the Collateral Agent (including, without limitation, any filings that
may be required by the United States Patent and Trademark Office (the “USPTO”) and the United States Copyright
Office in order to perfect the security interest granted by the Grantor in and to the Intellectual Property) to create, preserve,
perfect, maintain the perfection of or validate the first priority (subject to Permitted Liens) security interest granted pursuant
hereto or to enable the Collateral Agent to exercise and enforce its rights hereunder with respect to such security interest,
and without limiting the foregoing, shall:
(a)
if any of the Pledged Shares, Investment Property or Financial Assets constituting part of the Collateral are received by the
Grantor, forthwith (x) deliver to the Collateral Agent the certificates or instruments representing or evidencing the same,
duly endorsed in blank or accompanied by such instruments of assignment and transfer in such form and substance as the Collateral
Agent may reasonably request, all of which thereafter shall be held by the Collateral Agent, pursuant to the terms of this Agreement,
as part of the Collateral and (y) take such other action as the Collateral Agent may reasonably deem necessary or appropriate
to duly record or otherwise perfect the security interest created hereunder in such Collateral;
(b)
promptly from time to time deliver to the Collateral Agent any and all Instruments constituting part of the Collateral, endorsed
and/or accompanied by such instruments of assignment and transfer in such form and substance as the Collateral Agent may request;
provided that (other than in the case of the promissory notes described in Annex 3 (Part B)) so long as no Default
shall have occurred and be continuing, the Grantor may retain for collection in the ordinary course any Instruments received by
the Grantor in the ordinary course of business and the Collateral Agent shall, promptly upon request of the Grantor, make appropriate
arrangements for making any Instrument delivered by the Grantor available to the Grantor for purposes of presentation, collection
or renewal (any such arrangement to be effected, to the extent requested by the Collateral Agent, against trust receipt or like
document);
(c)
promptly from time to time enter into such control agreements, each in form and substance reasonably acceptable to the Collateral
Agent, as may be required to perfect the security interest created hereby in any and all Deposit Accounts, Investment Property,
Electronic Chattel Paper and Letter-of-Credit Rights, and will promptly furnish to the Collateral Agent true copies thereof;
(d)
promptly from time to time upon the request of the Collateral Agent, execute and deliver such short-form security agreements as
the Collateral Agent may reasonably deem necessary or desirable to protect the interests of the Secured Parties in respect of
that portion of the Collateral consisting of Intellectual Property;
(e)
promptly upon request of the Collateral Agent, cause the Collateral Agent to be listed as the lienholder on any certificate of
title or ownership covering any Motor Vehicle (other than Motor Vehicles constituting Inventory) and within 120 days of such request
deliver evidence of the same to the Collateral Agent;
(f)
keep full and accurate books and records relating to the Collateral, and stamp or otherwise mark such books and records in such
manner as the Collateral Agent may reasonably require in order to reflect the security interests granted by this Agreement; and
(g)
permit representatives of the Collateral Agent, upon reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, and permit representatives of the Collateral Agent to
be present at the Grantor’s place of business to receive copies of communications and remittances relating to the Collateral,
and forward copies of any notices or communications received by the Grantor with respect to the Collateral, all in such manner
as the Collateral Agent may require.
5.02
Other Financing Statements or Control. Except as otherwise permitted under the Transaction Documents, other than
with respect to Permitted Liens, the Grantor shall not (a) file or suffer to be on file, or authorize or permit to be filed
or to be on file, in any jurisdiction, any financing statement or like instrument with respect to any of the Collateral in which
the Collateral Agent is not named as the sole secured party, or (b) cause or permit any Person other than the Collateral
Agent or a Secured Party to have “control” (as defined in Section 9-104, 9-105, 9-106 or 9-107 of the NYUCC)
of any Deposit Account, Electronic Chattel Paper, Investment Property or Letter-of-Credit Right constituting part of the Collateral.
5.03
Preservation of Rights. The Collateral Agent shall not be required to take steps necessary to preserve any rights against
prior parties to any of the Collateral.
5.04
Special Provisions Relating to Certain Collateral.
(a)
Pledged Shares.
(i)
The Grantor will cause the Pledged Shares to constitute at all times (1) 100% of the total number of Shares of each Issuer other
than a Foreign Subsidiary then outstanding owned by the Grantor and (2) in the case of any Issuer that is a Foreign Subsidiary,
65% of the total number of shares of voting stock of such Issuer and 100% of the total number of shares of all other classes of
capital stock of such Issuer then issued and outstanding owned by the Grantor.
(ii)
So long as no Default shall have occurred and be continuing, the Grantor shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Pledged Shares for all purposes not inconsistent with the terms of this Agreement,
the Transaction Documents or any other instrument or agreement referred to herein or therein, provided that the Grantor agrees
that it will not vote the Pledged Shares in any manner that is inconsistent with the terms of this Agreement, the Transaction
Documents or any such other instrument or agreement; and the Collateral Agent shall execute and deliver to the Grantor or cause
to be executed and delivered to the Grantor all such proxies, powers of attorney, dividend and other orders, and all such instruments,
without recourse, as the Grantor may reasonably request for the purpose of enabling the Grantor to exercise the rights and powers
that it is entitled to exercise pursuant to this Section 5.04(a)(ii).
(iii)
Unless and until a Default shall have occurred and be continuing, the Grantor shall be entitled to receive and retain any dividends,
distributions or proceeds on the Pledged Shares paid in cash out of earned surplus.
(iv)
intentionally omitted.
(b)
Intellectual Property.
(i)
For the purpose of enabling the Collateral Agent to exercise rights and remedies under Section 5.05 at such time as the Collateral
Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, the Grantor hereby grants to
the Collateral Agent, to the extent assignable, an irrevocable, non-exclusive license (exercisable without payment of royalty
or other compensation to the Grantor) to use, assign, license or sublicense any of the Intellectual Property now owned or hereafter
acquired by the Grantor, wherever the same may be located, including in such license reasonable access to all media in which any
of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
(ii)
Notwithstanding anything contained herein to the contrary, but subject to any provision of the Transaction Documents that limit
the rights of the Grantor to dispose of its property, so long as no Default shall have occurred and be continuing, the Grantor
will be permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or take other actions with respect
to the Intellectual Property in the ordinary course of the business of the Grantor. In furtherance of the foregoing, so long as
no Default shall have occurred and be continuing, the Collateral Agent shall from time to time, upon the request of the Grantor,
execute and deliver any instruments, certificates or other documents, in the form so requested, that the Grantor shall have certified
are appropriate in its judgment to allow it to take any action permitted above (including relinquishment of the license provided
pursuant to clause (i) immediately above as to any specific Intellectual Property). Further, upon the payment in full of
all of the Secured Obligations and the expiration and termination of all obligations of the Secured Parties to the Grantor, or
earlier expiration of this Agreement or release of the Collateral, the Collateral Agent shall grant back to the Grantor the license
granted pursuant to clause (i) immediately above. The exercise of rights and remedies under Section 5.05 by the Collateral
Agent shall not terminate the rights of the holders of any licenses or sublicenses theretofore granted by the Grantor in accordance
with the first sentence of this clause (ii).
(iii)
The Grantor shall deliver a copy of an updated source code as soon as reasonably practicable after such update to the source code
is made available.
(c)
Chattel Paper. The Grantor will (i) deliver to the Secured Party each original of each item of Chattel Paper at any
time constituting part of the Collateral, and (ii) cause each such original and each copy thereof to bear a conspicuous legend,
in form and substance reasonably satisfactory to the Secured Party, indicating that such Chattel Paper is subject to the security
interest granted hereby and that purchase of such Chattel Paper by a Person other than the Secured Party without the consent of
the Secured Party would violate the rights of the Secured Party.
5.05
Remedies.
(a)
Rights and Remedies Generally upon Default. If a Default shall have occurred and is continuing, and any Purchaser or the
Grantor shall have notified the Collateral Agent in writing thereof, the Collateral Agent, on behalf of the Secured Parties, shall
have all of the rights and remedies with respect to the Collateral of a secured party under the NYUCC (whether or not the Uniform
Commercial Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies
to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted, including the right, to the fullest extent permitted by law, to exercise all voting, consensual and other powers
of ownership pertaining to the Collateral as if the Collateral Agent were the sole and absolute owner thereof (and the Grantor
agrees to take all such action as may be appropriate to give effect to such right); and without limiting the foregoing, the Collateral
Agent may:
(i)
in its discretion, in its name or in the name of the Grantor or otherwise, demand, sue for, collect or receive any money or other
property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation
to do so;
(ii)
make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of
payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;
(iii)
require the Grantor to notify (and the Grantor hereby authorizes the Collateral Agent to so notify) each account debtor in respect
of any Account, Chattel Paper or General Intangible, and each obligor on any Instrument, constituting part of the Collateral that
such Collateral has been assigned to the Collateral Agent hereunder, and to instruct that any payments due or to become due in
respect of such Collateral shall be made directly to the Collateral Agent or as it may direct (and if any such payments, or any
other Proceeds of Collateral, are received by the Grantor they shall be held in trust by the Grantor for the benefit of the Collateral
Agent and as promptly as possible remitted or delivered to the Collateral Agent for application as provided herein);
(iv)
require the Grantor to assemble the Collateral at such place or places, reasonably convenient to the Collateral Agent and the
Grantor, as the Collateral Agent may direct;
(v)
intentionally omitted;
(vi)
require the Grantor to cause the Pledged Shares to be transferred of record into the name of the Collateral Agent or its nominee
(and the Collateral Agent agrees that if any of such Pledged Shares is transferred into its name or the name of its nominee, the
Collateral Agent will thereafter promptly give to the Grantor copies of any notices and communications received by it with respect
to such Pledged Shares); and
(vii)
sell, lease, assign or otherwise dispose of all or any part of the Collateral, at such place or places as the Collateral Agent
deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private
sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except
such notice as is required by applicable statute and cannot be waived), and the Collateral Agent, any Secured Party or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or,
to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or otherwise), of the Grantor, any such demand, notice
and right or equity being hereby expressly waived and released. In the event of any sale, assignment, or other disposition of
any of the Trademark Collateral, the goodwill connected with and symbolized by the Trademark Collateral subject to such disposition
shall be included. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned.
The
Proceeds of each collection, sale or other disposition under this Section 5.05, including by virtue of the exercise of any
license granted to the Secured Party in Section 5.04(b), shall be applied in accordance with Section 5.09.
(b)
Certain Securities Act Limitations. The Grantor recognizes that, by reason of certain prohibitions contained in the Securities
Act of 1933, as amended, and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral
for their own account, for investment and not with a view to the distribution or resale thereof. The Grantor acknowledges that
any such private sales may be at prices and on terms less favorable to the Secured Parties than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to engage in public
sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit the issuer thereof to register
it for public sale.
(c)
Notice. The Grantor agrees that to the extent the Collateral Agent is required by applicable law to give reasonable prior
notice of any sale or other disposition of any Collateral, ten business days’ notice shall be deemed to constitute reasonable
prior notice.
5.06
Deficiency. If the proceeds of sale, collection or other realization of or upon the Collateral pursuant to Section 5.05
are insufficient to cover the costs and expenses of such realization and the payment in full of the Secured Obligations, the Grantor
shall remain liable for any deficiency.
5.07
Locations; Names, Etc. Without at least 30 days’ prior written notice to the Collateral Agent, the Grantor shall
not (i) change its location (as defined in Section 9-307 of the NYUCC), (ii) change its name from the name shown
as its current legal name on Annex 1, or (iii) agree to or authorize any modification of the terms of any item of Collateral
that would result in a change thereof from one Uniform Commercial Code category to another such category (such as from a General
Intangible to Investment Property), if the effect thereof would be to result in a loss of perfection of, or diminution of priority
for, the security interests created hereunder in such item of Collateral, or the loss of control (within the meaning of Section 9-104,
9-105, 9-106 or 9-107 of the NYUCC) over such item of Collateral.
5.08
Private Sale. The Collateral Agent shall incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 5.05 conducted in a commercially reasonable manner. The Grantor hereby waives
any claims against the Collateral Agent arising by reason of the fact that the price at which the Collateral may have been sold
at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount
of the Secured Obligations, even if the Collateral Agent accepts the first offer received and does not offer the Collateral to
more than one offeree.
5.09
Application of Proceeds. Except as otherwise herein expressly provided and except as provided below in this Section 5.09,
the Proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant hereto, and any other
cash at the time held by the Collateral Agent under Section 3 or this Section 5, shall be applied by the Collateral
Agent:
First,
to the payment of the costs and expenses of such collection, sale or other realization, including reasonable out-of-pocket costs
and expenses of the Collateral Agent and the fees and expenses of its agents and counsel, and all expenses incurred and advances
made by the Collateral Agent in connection therewith;
Next,
to the payment in full of the Secured Obligations (or, in the case of any Contingent Secured Obligations, to the provision of
cover as provided below), in such order as the Collateral Agent shall in its sole discretion determine; and
Finally,
to the payment to the Grantor, or its successors or assigns, or as a court of competent jurisdiction may direct, of any surplus
then remaining.
5.10
Attorney-in-Fact. Without limiting any rights or powers granted by this Agreement to any Secured Party or the Collateral
Agent while no Default has occurred and is continuing, upon the occurrence and during the continuance of any Default the Collateral
Agent is hereby appointed the attorney-in-fact of the Grantor for the purpose of carrying out the provisions of this Section 5
and taking any action and executing any instruments that the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. Without limiting the generality
of the foregoing, so long as the Collateral Agent shall be entitled under this Section 5 to make collections in respect of
the Collateral, the Collateral Agent shall have the right and power to receive, endorse and collect all checks made payable to
the order of Grantor representing any dividend, payment or other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same.
5.11
Perfection and Recordation. The Grantor hereby authorizes the Collateral Agent to (a) file Uniform Commercial Code
financing statements describing the Collateral as “all assets” or “all personal property and fixtures”
of the Grantor (provided that no such description shall be deemed to modify the description of Collateral set forth in Section 3),
(b) file all necessary agreements, documents, applications and instruments with the USPTO and/or the United States Copyright Office
necessary or desirable for the Collateral Agent to perfect, monitor and maintain the first priority (subject to Permitted Liens)
security interest in the Intellectual Property granted by the Grantor under this Agreement, and (c) take possession of Collateral
and/or take any other action necessary in order for the Collateral Agent to perfect its first priority (subject to Permitted Liens)
security interest in the Collateral.
5.12
Termination. When all Secured Obligations shall have been paid in full or converted into Common Stock and all obligations
of the Collateral Agent to the Grantor shall have expired or terminated, this Agreement shall terminate, and the Collateral Agent
shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to or on the order of the Grantor and to be released
and canceled all licenses and rights referred to in Section 5.04(b). The Collateral Agent shall also, at the expense of the
Grantor, execute and deliver to the Grantor upon such termination such Uniform Commercial Code termination statements, certificates
for terminating the liens on the Motor Vehicles and such other documentation as shall be reasonably requested by the Grantor to
effect the termination and release of the liens on the Collateral as required by this Section 5.12. For avoidance of doubt,
following a termination of this Agreement in accordance with this Section 5.12, there shall be no collateral securing the Debentures.
5.13
Further Assurances. The Grantor agrees that, from time to time upon the written request of the Secured Party, the Grantor
will execute and deliver such further documents and do such other acts and things as the Collateral Agent may reasonably request
in order fully to effect the purposes of this Agreement. The Collateral Agent shall release any lien covering any asset that has
been disposed of in accordance with the provisions of the Transaction Documents.
Section
6. Miscellaneous.
6.01
GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THE TRANSACTION
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. EACH PARTY AGREES THAT ALL LEGAL PROCEEDINGS CONCERNING THE INTERPRETATION,
ENFORCEMENT AND DEFENSE OF THE TRANSACTIONS CONTEMPLATED BY ANY OF THE TRANSACTION DOCUMENTS (WHETHER BROUGHT AGAINST A PARTY
HERETO OR ITS RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR AGENTS) SHALL BE COMMENCED IN THE STATE AND
FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, COUNTY OF NEW YORK (THE “NEW YORK COURTS”). EACH PARTY HERETO HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE NEW YORK COURTS FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY TRANSACTION
DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUITE, ACTION OR PROCEEDING, ANY CLAIM THAT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH NEW YORK COURTS, OR SUCH NEW YORK COURTS ARE IMPROPER OR INCONVENIENT VENUE FOR
SUCH PROCEEDING. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE
OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE TRANSACTION DOCUMENTS AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT
IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. IF EITHER PARTY SHALL COMMENCE A PROCEEDING
TO ENFORCE ANY PROVISION OF THE TRANSACTION DOCUMENTS, THEN THE PREVAILING PARTY IN SUCH ACTION OR PROCEEDING SHALL BE REIMBURSED
FOR ITS REASONABLE ATTORNEYS’ FEES AND OTHER REASONABLE COSTS AND EXPENSES INCURRED IN THE INVESTIGATION, PREPARATION AND
PROSECUTION OF SUCH ACTION OR PROCEEDING.
6.02
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER
PARTY ARISING OUT OF OR RELATING TO THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVERS FOREVER TRIAL BY JURY.
6.03
Amendments. The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed
by the Grantor and the Collateral Agent.
6.04
Agents and Attorneys in Fact. The Collateral Agent may employ agents and attorneys in fact in connection herewith and
shall not be responsible for the negligence or misconduct of any such agents or attorneys in fact selected in good faith.
6.05
Expenses. Grantor shall pay on demand all reasonable fees and expenses, including reasonable attorneys’ fees
and expenses, incurred by the Secured Parties in connection with the custody, preservation or sale of, or other realization on,
any of the Collateral or the enforcement or attempt to enforce any of the Secured Obligations which are not performed as and when
required by this Agreement.
6.06
Indemnification. The Grantor agrees to pay, indemnify and hold harmless each of the Collateral Agent and its Affiliates,
agents, sub-agents and attorneys-in-fact and their respective officers, directors, employees, agents and advisors, from and against
any and all obligations, claims, damages, losses, penalties, suits, costs, liabilities and expenses (including, without limitation,
the costs, fees and expenses of its legal counsel and of any experts and agents) that may at any time be imposed on, incurred
by or asserted or awarded against any such Person, in each case arising out of or in connection with or resulting from this Agreement
or the other Transaction Documents, as applicable, except to the extent that such claim, damage, loss, liability or expense is
caused by the indemnified party’s gross negligence or willful misconduct as determined by a final and non-appealable judgment
of a court of competent jurisdiction. The foregoing indemnity in this Section shall survive any resignation of the Collateral
Agent.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be duly executed and delivered as of the day and year
first above written.
|
VAPOR
CORP., |
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as
Grantor |
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By: |
|
|
Name: |
Jim Martin |
|
Title: |
Chief Financial
Officer |
REDWOOD
MANAGEMENT LLC, |
|
as
Collateral Agent |
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|
By |
|
|
Name: |
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Title: |
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Exhibit
10.3
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A
LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES, UNLESS OTHERWISE PROHIBITED BY FEDERAL OR STATE SECURITIES LAWS.
Original
Issue Date: June __, 2015
$________
ORIGINAL
ISSUE DISCOUNT
SENIOR
SECURED CONVERTIBLE DEBENTURE
DUE
DECEMBER 22, 2015
THIS
ORIGINAL ISSUE DISCOUNT SENIOR SECURED CONVERTIBLE DEBENTURE is one of a series of duly authorized and validly issued Original
Issue Discount Senior Secured Convertible Debentures of Vapor Corp., a Delaware corporation (the “Company”),
having its principal place of business at 3001 Griffin Road, Dania Beach, FL 33312 designated as its Original Issue Discount Senior
Secured Convertible Debenture due December 22, 2015 (this Debenture, the “Debenture” and, collectively with the other
Debentures of such series, the “Debentures”).
FOR
VALUE RECEIVED, the Company promises to pay to _________ or its registered assigns (the “Holder”), or shall
have paid pursuant to the terms hereunder, the principal sum of $_______ on December 22, 2015 (the “Maturity Date”)
or such earlier date as this Debenture is required or permitted to be repaid as provided hereunder, and to pay interest to the
Holder on the aggregate unconverted and then outstanding principal amount of this Debenture in accordance with the provisions
hereof. This Debenture is subject to the following additional provisions:
Section
1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Debenture, (a) capitalized
terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement (as defined below) and (b) the
following terms shall have the following meanings:
“Alternate
Consideration” shall have the meaning set forth in Section 5(e).
“Amortization
Payment” shall have the meaning set forth in Section 2(d).
“Amortization
Payment Date” shall mean dates Amortization Payments are due as set forth on Appendix A hereto.
“Bankruptcy
Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in
Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the
Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof
any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary
thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered,
(d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial
part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant
Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof
calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company
or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence
in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.
“Base
Conversion Price” shall have the meaning set forth in Section 5(b).
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 4(d).
“Buy-In”
shall have the meaning set forth in Section 4(c)(v).
“Change
of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof
by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act)
of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise)
of in excess of 50% of the voting securities of the Company (other than by means of conversion or exercise of the Debentures and
the Securities issued together with the Debentures), (b) the Company merges into or consolidates with any other Person, or any
Person merges into or consolidates with the Company and, after giving effect to such transaction, the stockholders of the Company
immediately prior to such transaction own less than 50% of the aggregate voting power of the Company or the successor entity of
such transaction, (c) the Company sells or transfers all or substantially all of its assets to another Person and the stockholders
of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately
after the transaction, or (d) the execution by the Company of an agreement to which the Company is a party or by which it is bound,
providing for any of the events set forth in clauses (a) through (c) above.
“Conversion”
shall have the meaning ascribed to such term in Section 4.
“Conversion
Date” shall have the meaning set forth in Section 4(a).
“Conversion
Price” shall have the meaning set forth in Section 4(b).
“Conversion
Schedule” means the Conversion Schedule in the form of Schedule 1 attached hereto.
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of this Debenture in accordance with
the terms hereof.
“Debenture
Register” shall have the meaning set forth in Section 2(b).
“Default
Conversion Price” means 55% of the lowest traded price during the 20 Trading Day-period immediately prior to the applicable
Conversion Date.
“DTC”
means the Depository Trust Company.
“DWAC”
means Deposit Withdrawal at Custodian as defined by the DTC.
“Event
of Default” shall have the meaning set forth in Section 6(a).
“Fundamental
Transaction” shall have the meaning set forth in Section 5(e).
“Mandatory
Default Amount” means the payment of 130% of the outstanding principal amount of this Debenture and accrued and unpaid
interest hereon, in addition to the payment of all other amounts, costs, expenses and liquidated damages due in respect of this
Debenture.
“New
York Courts” shall have the meaning set forth in Section 8(d).
“Notice
of Conversion” shall have the meaning set forth in Section 4(a).
“Original
Issue Date” means the date of the first issuance of the Debentures, regardless of any transfers of the Debentures and
regardless of the number of instruments which may be issued to evidence the Debenture.
“Purchase
Agreement” means the Securities Purchase Agreement, dated as of June __, 2015 among the Company and the original Holders,
as amended, modified or supplemented from time to time in accordance with its terms.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share
Delivery Date” shall have the meaning set forth in Section 4(c)(ii).
“Successor
Entity” shall have the meaning set forth in Section 5(e).
Section
2. Amortization, Prepayment and Interest.
a)
Payment of Interest. The Company shall pay interest to the Holder on the aggregate unconverted and then outstanding principal
amount of this Debenture at the rate of 10% per annum, which will be due and payable on each Amortization Payment Date, except
as otherwise set forth in this Debenture. In addition to the interest payable under this Section 2(a), this Debenture was issued
for an original issue discount of 5% of the principal amount.
b)
Interest Calculations. Subject to Section 2(a), interest shall be calculated on the basis of a 360-day year, consisting
of twelve 30 calendar day periods, and shall accrue daily commencing on the Original Issue Date until payment in full of the outstanding
principal, together with all accrued and unpaid interest, liquidated damages and other amounts which may become due hereunder,
has been made. Interest hereunder will be paid to the Person in whose name this Debenture is registered on the records of the
Company regarding registration and transfers of this Debenture (the “Debenture Register”).
c)
Late Fee. Subject to Section 6(b) of this Debenture, all overdue accrued and unpaid interest to be paid hereunder shall
entail a late fee at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted by applicable law (the
“Late Fees”) which shall accrue daily from the date such interest is due hereunder through and including the
date of actual payment in full.
d)
Amortization Payments. The Company shall repay this Debenture and any accrued but unpaid interest in accordance with the
Amortization Schedule attached as Appendix A (each, an “Amortization Payment”). Each Amortization Payment
shall, at the sole discretion of the Holder, be made in cash (subject to a 25% premium) or in Common Stock valued at the Conversion
Price (or, at any time after the occurrence of any Event of Default, at the Default Conversion Price). The Holder shall notify
the Company within 5 days of any Amortization Payment Date of its election to receive an Amortization Payment in cash or Common
Stock, provided that, in the event the Holder fails to provide any notice to the Company prior to an Amortization Payment Date
of the Holder’s election to receive an Amortization Payment in cash or Common Stock, the Company shall make such Amortization
Payment in cash.
e)
Prepayment. At any time upon ten (10) days written notice to the Holder, the Company may prepay any portion of the principal
amount of this Debenture and any accrued and unpaid interest. If the Company exercises its right to prepay any portion of the
Debenture, the Company shall make payment to the Holder of an amount in cash equal to the sum of the then outstanding principal
amount of this Debenture being prepaid and accrued interest thereon multiplied by 125%. The Holder may continue to convert the
Debenture from the date notice of the prepayment is given until the date of the prepayment.
Section
3. Registration of Transfers and Exchanges.
a)
Different Denominations. This Debenture is exchangeable for an equal aggregate principal amount of Debentures of different
authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration
of transfer or exchange.
b)
Investment Representations. This Debenture has been issued subject to certain investment representations of the original
Holder set forth in the Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement
and applicable federal and state securities laws and regulations.
c)
Reliance on Debenture Register. Prior to due presentment for transfer to the Company of this Debenture, the Company and
any agent of the Company may treat the Person in whose name this Debenture is duly registered on the Debenture Register as the
owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Debenture
is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.
Section
4. Conversion.
a)
Voluntary Conversion. At any time after the Original Issue Date until this Debenture is no longer outstanding, this Debenture
(including principal and accrued but unpaid interest on any principal being converted, if any) shall be convertible, in whole
or in part, into shares of Common Stock at the option of the Holder, at any time and from time to time (subject to the conversion
limitations set forth in Section 4(d) hereof). The Holder shall effect conversions by delivering to the Company a Notice of Conversion,
the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein
the principal amount (and any accrued interest) of this Debenture to be converted and the date on which such conversion shall
be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion,
the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of
Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of
Conversion form be required by the Company. To effect conversions hereunder, the Holder shall not be required to physically
surrender this Debenture to the Company unless the entire principal amount of this Debenture, plus all accrued and unpaid interest
thereon, has been so converted. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this
Debenture (and accrued interest thereon, if applicable) in an amount equal to the applicable conversion. The Holder and the Company
shall maintain records showing the principal amount(s) converted and the date of such conversion(s). The Company may deliver an
objection to any Notice of Conversion within one (1) Business Day of delivery of such Notice of Conversion. In the event of any
dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The
Holder, and any assignee by acceptance of this Debenture, acknowledge and agree that, by reason of the provisions of this paragraph,
following conversion of a portion of this Debenture, the unpaid and unconverted principal amount of this Debenture may be less
than the amount stated on the face hereof.
b)
Conversion Price. The conversion price in effect on any Conversion Date shall be equal to $0.50, subject to adjustment
herein (the “Conversion Price”). The Conversion Price will 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 measuring period. Notwithstanding the foregoing, at any time after the occurrence of any Event of Default the
Holder may, at such Holder’s option and otherwise in accordance with the provisions for conversion herein, convert all or
any part of this Debenture into Common Stock at the Default Conversion Price. Nothing herein shall limit a Holder’s right
to pursue actual damages or declare an Event of Default pursuant to Section 6 hereof and the Holder shall have the right to pursue
all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or
injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any
other Section hereof or under applicable law.
c)
Mechanics of Conversion.
i.
Conversion Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion
hereunder shall be determined by the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be
converted by (y) the Conversion Price.
ii.
Delivery of Certificate Upon Conversion. Not later than three (3) Trading Days after each Conversion Date (the “Share
Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing
the Conversion Shares which, on or after the date on which such Conversion Shares are eligible to be sold under Rule 144 without
the need for current public information and the Company has received an opinion of counsel to such effect reasonably acceptable
to the Company, shall be free of restrictive legends and trading restrictions (other than those which may then be required by
the Purchase Agreement) representing the number of Conversion Shares being acquired upon the conversion of this Debenture. All
certificate or certificates required to be delivered by the Company under this Section 4(c) shall be delivered electronically
through the Depository Trust Company or another established clearing corporation performing similar functions. If the Conversion
Date is prior to the date on which such Conversion Shares are eligible to be sold under Rule 144 without the need for current
public information, the Conversion Shares shall bear a restrictive legend in substantially the following form, as appropriate:
“NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE
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 (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN
A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS 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, UNLESS OTHERWISE PROHIBITED BY FEDERAL OR STATE SECURITIES LAWS.”
Notwithstanding
the foregoing, commencing on such date that the Conversion Shares are eligible for sale under Rule 144 subject to current public
information requirements, the Company shall obtain a legal opinion to allow for such sales under Rule 144.
iii.
Failure to Deliver Certificates. If, in the case of any Notice of Conversion, such certificate or certificates are not
delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written
notice to the Company at any time on or before its receipt of such certificate or certificates, to rescind such Conversion, in
which event the Company shall promptly return to the Holder any original Debenture delivered to the Company and the Holder shall
promptly return to the Company the Common Stock certificates issued to such Holder pursuant to the rescinded Conversion Notice.
iv.
Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares
upon conversion of this Debenture in accordance with the terms hereof are absolute and unconditional, irrespective of any action
or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any
judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination,
or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged
violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of such Conversion Shares (but subject to Section 4(e)
of this Debenture); provided, however, that such delivery shall not operate as a waiver by the Company of any such
action the Company may have against the Holder. In the event the Holder of this Debenture shall elect to convert any or all of
the outstanding principal amount hereof, the Company may not refuse conversion based on any claim that the Holder or anyone associated
or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason (except as otherwise
provided in the Transaction Documents), unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion
of all or part of this Debenture shall have been sought and obtained, and the Company posts a surety bond for the benefit of the
Holder which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds
of which shall be payable to the Holder to the extent it obtains judgment. In the absence of such injunction, the Company shall
issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the Company fails for any reason to deliver
to the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay
to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $10 per
Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to
accrue) for each Trading Day after such Share Delivery Date until such certificates are delivered or Holder rescinds such conversion.
Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section
6 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Holder shall
have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce
damages pursuant to any other Section hereof or under applicable law.
v.
Compensation for Buy-In on Failure to Timely Deliver Certificates Upon Conversion. In addition to any other rights available
to the Holder, if the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery
Date pursuant to Section 4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase
(in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock
to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the
conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall (A) pay in cash to the
Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s
total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the
aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by
(2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage
commissions) and (B) at the option of the Holder, either reissue (if surrendered) this Debenture in a principal amount equal to
the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder
the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements
under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted conversion of this Debenture with respect to which the actual sale price of the Conversion
Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of
the immediately preceding sentence, the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence
of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing shares of Common Stock upon conversion of this Debenture as
required pursuant to the terms hereof.
vi.
Reservation of Shares Issuable Upon Conversion. The Company covenants that, following filing of the Authorized Shares Amendment,
it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock a number of shares of
Common Stock at least equal to 300% of the Required Minimum for the sole purpose of issuance upon conversion of this Debenture
and payment of interest on this Debenture, each as herein provided, free from preemptive rights or any other actual contingent
purchase rights of Persons other than the Holder, not less than such aggregate number of shares of the Common Stock as shall (subject
to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions
of Section 5) upon the conversion of the then outstanding principal amount of this Debenture and payment of interest hereunder.
The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly
issued, fully paid and nonassessable.
vii.
Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of
this Debenture. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the
Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the Conversion Price or round up to the next whole share.
viii.
Transfer Taxes and Expenses. The issuance of certificates for shares of the Common Stock on conversion of this Debenture
shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of
the issue or delivery of such certificates, provided that, the Company shall not be required to pay any tax that may be payable
in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than
that of the Holder of this Debenture so converted and the Company shall not be required to issue or deliver such certificates
unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company that such tax has been paid. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Conversion.
d)
Holder’s Conversion Limitations. The Company shall not effect any conversion of this Debenture, and a Holder shall
not have the right to convert any portion of this Debenture, to the extent that after giving effect to the conversion set forth
on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group
together with the Holder or any of the Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned
by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Debenture
with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable
upon (i) conversion of the remaining, unconverted principal amount of this Debenture beneficially owned by the Holder or any of
its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company
subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder
or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
To the extent that the limitation contained in this Section 4(d) applies, the determination of whether this Debenture is convertible
(in relation to other securities owned by the Holder together with any Affiliates) and of which principal amount of this Debenture
is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to
be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder
together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial
Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time
it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination
as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares
of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following:
(i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent
public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent
setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall
within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In
any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise
of securities of the Company, including this Debenture, by the Holder or its Affiliates since the date as of which such number
of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of
the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock
issuable upon conversion of this Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the
Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4(d), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock upon conversion of this Debenture held by the Holder and the Beneficial Ownership
Limitation provisions of this Section 4(d) shall continue to apply. Any such increase or decrease will not be effective until
the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this
paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership
Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of this Debenture.
e)
Limitation on Issuing Shares. Notwithstanding any provision in the Transaction Documents to the contrary, unless and until
the Nasdaq Shareholder Approval has been obtained and deemed effective or is not required, the Company shall not upon the conversion
of any Debenture issued pursuant to the Purchase Agreement issue shares of Common Stock to the extent that such issuance, together
with all previous issuances of Common Stock pursuant to the conversion of Debentures issued pursuant to the Purchase Agreement,
would in the aggregate exceed a number of shares of Common Stock equal to more than 19.99% of its issued and outstanding Common
Stock on the Closing Date. Until Nasdaq Shareholder Approval has been obtained and deemed effective, each Holder shall be entitled
to convert its Debenture only to the extent the total number of shares of Common Stock issuable to the Holder upon conversion
of such Debenture does not exceed the Holder’s pro rata share of 19.99% of the number of issued and outstanding shares of
Common Stock on the Closing Date. Such Holder’s pro rata share shall be the quotient obtained by dividing the Subscription
Amount paid by such Holder, by the total Subscription Amount paid by all Holders pursuant to the Purchase Agreement.
Section
5. Certain Adjustments.
a)
Stock Dividends and Stock Splits. If the Company, at any time while this Debenture is outstanding: (i) pays a stock dividend
or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock
Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion
of, or payment of interest on, the Debentures), (ii) subdivides outstanding shares of Common Stock into a larger number of shares,
(iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares
or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Company,
then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock
(excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be
the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section shall
become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Equity Sales. If at any time while this Debenture is outstanding, the Company or any Subsidiary, as applicable,
sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues (or announces
any sale, grant or any option to purchase or other disposition), any Common Stock or Common Stock Equivalents entitling any Person
to acquire shares of Common Stock at an effective price per share that is lower than the then Conversion Price (such lower price,
the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (if
the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price
adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights
per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price
per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion
Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced to equal the Base Conversion Price. Such
adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no
adjustment will be made under this Section 5(b) in respect of an Exempt Issuance (as defined in the Purchase Agreement). The Company
shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents
subject to this Section 5(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification,
whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5(b), upon the occurrence of any Dilutive
Issuance, the Holder will be entitled to receive a number of Conversion Shares based upon the Base Conversion Price on or after
the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the Base Conversion Price.
c)
Subsequent Rights Offerings. If at any time the Company grants, issues or sells any Common Stock Equivalents or rights
to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock
(the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common
Stock acquirable upon complete conversion of this Debenture (without regard to any limitations on exercise hereof, including without
limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock
are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, 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 Beneficial Ownership
Limitation).
d)
Intentionally Omitted.
e)
Fundamental Transaction. If, at any time while this Debenture is outstanding, (i) the Company, directly or indirectly,
in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property, (v) the Company, directly or indirectly, in one
or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock 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) (each a “Fundamental Transaction”), then, upon any subsequent
conversion of this Debenture, the Holder shall have the right to receive, for each Conversion Share that would have been issuable
upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in
Section 4(d) on the conversion of this Debenture), the number of shares of Common Stock of the successor or acquiring corporation
or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Debenture
is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 4(d) on the conversion
of this Debenture). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of
Common Stock in such Fundamental Transaction, and the Company shall apportion the Conversion Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of
Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the
Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Debenture following
such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is
not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under
this Debenture and the other Transaction Documents in accordance with the provisions of this Section 5(e) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the holder of this Debenture, deliver to the Holder in exchange
for this Debenture a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Debenture which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its
parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Debenture (without regard
to any limitations on the conversion of this Debenture) prior to such Fundamental Transaction, and with a conversion price which
applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such conversion price being for the purpose of protecting the economic value of this Debenture immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the
Holder. Upon the occurrence of any such 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 Debenture 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 Debenture and the other Transaction Documents with
the same effect as if such Successor Entity had been named as the Company herein.
f)
Calculations. All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 5, the number of shares of Common Stock deemed to be issued and outstanding as
of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued
and outstanding.
g)
Notice to the Holder.
i.
Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5,
the Company shall promptly deliver to the Holder a notice setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for
or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed
at each office or agency maintained for the purpose of conversion of this Debenture, and shall cause to be delivered to the Holder
at its last address as it shall appear upon the Debenture Register, at least twenty (20) calendar days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders
of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become
effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange
their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery
thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall
remain entitled to convert this Debenture during the 20-day period commencing on the date of such notice through the effective
date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
6. Events of Default.
a)
“Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event
and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or
order of any court, or any order, rule or regulation of any administrative or governmental body):
i.
any default in the payment of (A) the principal amount of any Debenture or (B) interest, liquidated damages and other amounts
owing to the Holder on the Debenture, as and when the same shall become due and payable (whether on a Conversion Date or an Amortization
Payment Date or by acceleration or otherwise) which default, solely in the case of an interest payment or other default under
clause (B) above, is not cured within 3 Trading Days;
ii.
the Company shall fail to observe or perform any other material covenant or agreement contained in the Debenture (other than a
breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which breach is addressed
in clause (ix) below) which failure is not cured, if possible to cure, within the earlier to occur of (A) 5 Trading Days after
notice of such failure sent by the Holder or by any other Holder to the Company and (B) 10 Trading Days after the Company has
become or should have become aware of such failure;
iii.
a default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument)
shall occur under (A) any of the Transaction Documents (including, without limitation, any failure to obtain the Authorized Shares
Shareholder Approval or file the Authorized Shares Amendment in accordance with Section 4.14 of the Purchase Agreement, or any
failure to obtain the Nasdaq Shareholder Approval in accordance with Section 4.15 of the Purchase Agreement) or (B) any other
material agreement, lease, document or instrument to which the Company or any Subsidiary is obligated (and not covered by clause
(vi) below);
iv.
any representation or warranty made in this Debenture, any other Transaction Documents, any written statement pursuant hereto
or thereto or any other report, financial statement or certificate made or delivered to the Holder shall be untrue or incorrect
in any material respect as of the date when made or deemed made;
v.
the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy
Event;
vi.
the Company or any Subsidiary shall default (subject to any grace or cure period provided in the applicable agreement, document
or instrument) on any of its obligations under any mortgage, credit agreement or other facility, indenture agreement, factoring
agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness
for borrowed money or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than
$175,000, whether such indebtedness now exists or shall hereafter be created and (b) results in such indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise become due and payable;
vii.
the Common Stock shall not be eligible for listing or quotation for trading on a Trading Market and shall not be eligible to resume
listing or quotation for trading thereon within five Trading Days or the transfer of shares of Common Stock through DTC is no
longer available or “chilled”;
viii.
the Company shall be a party to any Change of Control Transaction or Fundamental Transaction or shall agree to sell or dispose
of all or in excess of 50% of its assets in one transaction or a series of related transactions (whether or not such sale would
constitute a Change of Control Transaction);
ix.
the Company shall fail for any reason to deliver certificates to the Holder prior to the third Trading Day after a Conversion
Date pursuant to Section 4(c) or the Company shall provide at any time notice to the Holder, including by way of public announcement,
of the Company’s intention to not honor requests for conversions of the Debenture in accordance with the terms hereof;
x.
the Company fails to file with the Commission any required reports under Section 13 or 15(d) of the Exchange Act such that it
is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable);
xi.
if the Company or any Significant Subsidiary shall: (i) apply for or consent to the appointment of a receiver, trustee, custodian
or liquidator of it or any of its properties, (ii) admit in writing its inability to pay its debts as they mature, (iii) make
a general assignment for the benefit of creditors, (iv) be adjudicated bankrupt or insolvent or be the subject of an order for
relief under Title 11 of the United States Code or any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution
or liquidation law or statute of any other jurisdiction or foreign country, or (v) file a voluntary petition in bankruptcy, or
a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage or any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of
a petition filed against it in any proceeding under any such law, or (vi) take or permit to be taken any action in furtherance
of or for the purpose of effecting any of the foregoing;
xii.
if any order, judgment or decree shall be entered, without the application, approval or consent of the Company or any Significant
Subsidiary, by any court of competent jurisdiction, approving a petition seeking liquidation or reorganization of the Company
or any Subsidiary, or appointing a receiver, trustee, custodian or liquidator of the Company or any Subsidiary, or of all or any
substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty
(60) days;
xiii.
the occurrence of any levy upon or seizure or attachment of, or any uninsured loss of or damage to, any property of the Company
or any Subsidiary having an aggregate fair value or repair cost in excess of $175,000, and any such levy, seizure or attachment
shall not be set aside, bonded or discharged within thirty (30) days after the date thereof;
xiv.
the Company shall fail to maintain sufficient reserved shares pursuant to Section 4.10 of the Purchase Agreement; or
xv.
any monetary judgment, writ or similar final process shall be entered or filed against the Company, any subsidiary or any of their
respective property or other assets for more than $50,000, and such judgment, writ or similar final process shall remain unvacated,
unbonded or unstayed for a period of 45 calendar days.
b)
Remedies Upon Event of Default. If any Event of Default occurs, then the outstanding principal amount of this Debenture,
plus accrued but unpaid interest, liquidated damages and other amounts owing in respect thereof through the date of acceleration,
shall become, at the Holder’s election by notice in writing to Company, immediately due and payable in cash at the Mandatory
Default Amount. After the occurrence of any Event of Default that results in the eventual acceleration of this Debenture, the
interest rate on this Debenture shall accrue at an interest rate equal to the lesser of 2% per month (24% per annum) or the maximum
rate permitted under applicable law. Upon the payment in full of the Mandatory Default Amount, the Holder shall promptly surrender
this Debenture to or as directed by the Company. In connection with such acceleration described herein, the Holder need not provide,
and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and
without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available
to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and
the Holder shall have all rights as a holder of the Debenture until such time, if any, as the Holder receives full payment pursuant
to this Section 6(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent
thereon.
Section
7. Security. The Company’s obligations hereunder are secured pursuant to a security agreement, dated on or about
the date hereof, between the Company and the Collateral Agent named therein.
Section
8. Miscellaneous.
a)
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without
limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized
overnight courier service, addressed to the Company, at the address set forth in the Purchase Agreement or such other facsimile
number or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section
8(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and
delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the
facsimile number or address of the Holder as set forth in the Purchase Agreement, or as appearing on the books of the Company,
or such other facsimile number or address as the Holder may specify for such purposes by notice to the Company delivered in accordance
with this Section 8(a). Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth
on the signature pages attached hereto prior to 12:00 p.m. (New York City time) on any date, (ii) the next Trading Day after the
date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature
pages attached hereto on a day that is not a Trading Day or later than 12:00 p.m. (New York City time) on any Trading Day, (iii)
the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv)
upon actual receipt by the party to whom such notice is required to be given.
b)
Absolute Obligation. Except as expressly provided herein, no provision of this Debenture shall alter or impair the obligation
of the Company to pay the principal of, liquidated damages and accrued interest, as applicable, on this Debenture at the time,
place, and rate, and in the coin or currency, herein prescribed. This Debenture is a direct debt obligation of the Company.
c)
Lost or Mutilated Debenture. If this Debenture shall be mutilated, lost, stolen or destroyed, the Company shall execute
and deliver, in exchange and substitution for and upon cancellation of a mutilated Debenture, or in lieu of or in substitution
for a lost, stolen or destroyed Debenture, a new Debenture for the principal amount of this Debenture so mutilated, lost, stolen
or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Debenture, and of the ownership hereof,
reasonably satisfactory to the Company.
d)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Debenture shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement
and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its
respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts
sitting in the City of New York, Borough of Manhattan (the “New York Courts”). Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction
Documents), 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 such New York Courts, or such New York Courts are improper or inconvenient venue for
such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to it under this Debenture and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating
to this Debenture or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any
provisions of this Debenture, then the prevailing party in such action or proceeding shall be reimbursed by the other party for
its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action
or proceeding.
e)
Waiver. Any waiver by the Company or the Holder of a breach of any provision of this Debenture shall not operate as or
be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Debenture. The
failure of the Company or the Holder to insist upon strict adherence to any term of this Debenture on one or more occasions shall
not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other
term of this Debenture on any other occasion. Any waiver by the Company or the Holder must be in writing.
f)
Severability. If any provision of this Debenture is invalid, illegal or unenforceable, the balance of this Debenture shall
remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable
to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates
the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the
maximum rate of interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal
of or interest on this Debenture as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Debenture, and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though
no such law has been enacted.
g)
Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Debenture
shall be cumulative and in addition to all other remedies available under this Debenture 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 Debenture. 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 Debenture.
h)
Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day.
i)
Headings. The headings contained herein are for convenience only, do not constitute a part of this Debenture and shall
not be deemed to limit or affect any of the provisions hereof.
*********************
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the Company has caused this Debenture to be duly executed by a duly authorized officer as of the date first above
indicated.
|
VAPOR CORP.
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By: |
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Name: |
Jim Martin |
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Title: |
Chief Financial
Officer |
APPENDIX
A
Amortization
Schedule
Date |
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Payment
Amount (Cash) |
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Payment
Amount (Common Stock) |
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9/22/2015 |
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[1/3
of principal] (plus interest) [times 125%] |
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[1/3
of principal] (plus interest) |
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10/22/2015 |
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[1/3
of principal] (plus interest) [times 125%] |
|
[1/3
of principal] (plus interest) |
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12/22/2015 |
|
[1/3
of principal] (plus interest) [times 125%] |
|
[1/3
of principal] (plus interest) |
ANNEX
A
NOTICE
OF CONVERSION
The
undersigned hereby elects to convert principal under the Original Issue Discount Senior Secured Convertible Debenture due December
__, 2015 of Vapor Corp., a Nevada corporation (the “Company”), into shares of common stock (the “Common
Stock”), of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock
are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance
therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.
By
the delivery of this Notice of Conversion the undersigned represents and warrants to the Company that its ownership of the Common
Stock does not exceed the amounts specified under Section 4 of this Debenture, as determined in accordance with Section 13(d)
of the Exchange Act.
The
undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with
any transfer of the aforesaid shares of Common Stock.
Conversion
calculations: |
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Date
to Effect Conversion: |
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Principal
Amount of Debenture to be Converted: |
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Conversion
Price: |
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Number
of shares of Common Stock to be issued: |
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Signature: |
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Name: |
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DWAC
Instructions: |
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Broker
No: |
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Account
No: |
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Schedule
1
CONVERSION
SCHEDULE
This
Original Issue Discount Senior Secured Convertible Debenture due on December __, 2015 in the original principal amount of $_______
is issued by Vapor Corp., a Nevada corporation. This Conversion Schedule reflects conversions made under Section 4 of the above
referenced Debenture.
Dated:
Date
of Conversion
(or
for first entry,
Original Issue Date) |
|
Amount
of Conversion |
|
Aggregate
Principal
Amount Remaining
Subsequent to Conversion
(or
original Principal Amount) |
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Company
Attest |
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Exhibit
10.4
Vapor
Corp.
3001
Griffin Road,
Dania
Beach, Florida 33312
June
19, 2015
To the Investors
Identified on Exhibit A
|
Re: |
Vapor Corp. - |
|
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Securities Purchase Agreement dated November 14, 2014 |
Gentlemen:
The
purpose of this letter agreement is to outline and confirm our prior discussions. Within this letter agreement we will be referencing
the Securities Purchase Agreement dated as of November 14, 2014 (the “2014 Agreement”) and the Securities Purchase
Agreement dated as of March 3, 2015 (the “2015 Agreement”), between Vapor Corp., a Delaware corporation (“the
Company”), you and other investors. While your agreement under this letter agreement is limited to the 2014 Agreement, it
is only effective if (i) sufficient investors sign this letter agreement agreeing to amend the 2014 Agreement pursuant to Section
5.5 thereof, and (ii) sufficient investors sign similar letter agreements agreeing to amend the 2015 Agreement pursuant to Section
5.5 thereof. The letter agreements provided to the investors under the 2015 Agreement will be substantively similar to this letter
agreement. The number of shares of the Company’s common stock and warrants issuable upon effectiveness of this letter agreement
to each investor under either the 2014 Agreement or the 2015 Agreement shall vary and be pro rata based upon a fraction in which
the numerator is the amount such investor invested under the 2014 Agreement or 2015 Agreement, as applicable, and the denominator
is the total gross proceeds received by the Company under the 2014 Agreement and the 2015 Agreement (“Pro Rata Basis”)
except as indicated on Exhibit A. The actual number of shares of common stock and warrants issuable to you is set forth
on Exhibit A. The warrants shall be exercisable at the greater of (i) the closing price of the Company’s common stock
as of the date of this letter agreement and (ii) $0.505. The exercise price will be modified in connection with stock splits,
stock dividends, combinations and similar events. The warrant exercise price will be subject to standard lower price issuance
anti-dilution adjustment, subject to shareholder approval. The form of warrant is annexed as Exhibit B. The holders of
the Common Stock and the warrants (and the investors receiving shares of Common Stock and warrants under the 2015 Agreement) are
granted the registration rights described in the form of Registration Rights Agreement annexed hereto as Exhibit C, with
respect to the Common Stock and the warrant shares issuable upon exercise of such warrants.
You
acknowledge that you are still an accredited investor under Regulation D of the Securities Act of 1933 and that you are acquiring
the shares of common stock and warrants for investment and not with a view to distribution.
The
amendments agreed to in this letter agreement shall apply only as long as the Company’s common stock trades on the Nasdaq
Stock Market or the New York Stock Exchange (including the NYSE MKT), or any successors to these national securities exchanges
(any, a “Stock Exchange”) and further provided no action permitted to be taken pursuant to this letter agreement or
otherwise results in a delisting from the principal Stock Exchange for the common stock. Provided, however, that
any future delisting shall not affect any completed issuances of Common Stock or Common Stock Equivalents pursuant to this letter
agreement.
In
filing the Company’s Form S-3 with the Securities and Exchange Commission on April 17, 2015, (the “April S-3”),
we did not include the Common Stock issued and issuable pursuant to the November 2014 Agreement as required because the March
3rd agreement precluded us from doing so. Accordingly, you hereby waive any breach of your registration rights solely
as to the April S-3.
We
have attached as Exhibits D and E, respectively, two non-binding documents, an Engagement Agreement with Dawson James Securities,
Inc. (“Dawson”) dated May 7, 2015 and a Term Sheet with Redwood Management, LLC dated May 26, 2015 (“Redwood”),
which Redwood offering is expected to close with the sale of $1,750,000 of principal value of Debentures (the “Amended Redwood
Offering”). You hereby waive your current rights (prior to execution of this letter agreement) if the Company closes the
Dawson offering or Other Public Offering as defined, and/or the Amended Redwood Offering. Provided, however, if
the proposed Dawson offering does not close, your waiver includes approval of a marketed registered public offering on the same
substantive terms as the Dawson engagement letter with a substitute underwriter, which offering will be subject to this letter
agreement including the conditions described below (“Other Public Offering”).
Additionally,
we acknowledge the provision of Section 4.13 of the 2014 Agreement, which precludes the Company from issuing Common Stock and
Common Stock Equivalents at an effective price per share of common stock less than the higher of the Conversion Price or Warrant
Exercise Price in effect as of the time of the potential lower price issuance (all capitalized terms as defined in the 2014 Agreement).
The restriction inhibits the Company from raising capital necessary to meet its working capital needs. Accordingly, you hereby
agree to permanently waive any rights that you have with regards to such covenants, provided that the conversion price and exercise
price of any Common Stock, Common Stock Equivalents and derivative securities issued in or in connection with such issuances (after
taking into account original issue discounts, other discounts, ratchet rights, etc.) are not less than $0.50 per share, subject
to equitable adjustment for stock splits, dividends and similar events (the “Floor Price”). By way of example, issuance
of $1 million of 5% original issue discount notes convertible at $0.50 per share shall result in the Floor Price being reduced
to $.475 per share. This is derived by dividing the cash received by the Company ($950,000) by the number of shares issuable under
the note (2,000,000). Issuances by the Company of Common Stock and Common Stock Equivalents at prices less than the Floor Price,
with respect only to the Dawson public offering and Other Public Offering described above, (such reduced Floor Price shall be
known as the “Reduced Share Price”), shall be permitted provided the Company shall issue additional shares of Common
Stock to investors under both the 2014 and 2105 Agreements as reflected on Exhibit F with the number of shares deliverable
to each investor based upon the above pro rata allocation. Such issuances, if required, must be made contemporaneously with the
closing under the Dawson public offering or Other Public Offering, as the case may be. The Conversion Price of the Notes and Exercise
Price of the Warrants and the warrants issued in connection with this letter agreement, outstanding on the occurrence of such
future issuances at the Reduced Share Price shall be reduced (and under no circumstances increased) with respect to the Dawson
public offering or Other Public Offering to be equal to the Reduced Share Price, subject to a floor price of $0.20 per share.
Under no circumstances may the Floor Price be reduced to less than $0.20 per share. If the Rules of the Nasdaq Capital Market
applicable to such reduction require the approval of the Company’s shareholders, then the Company will not effectuate such
reduction until such shareholder approval has been obtained. In such event, the Company agrees to diligently take all action necessary
to obtain such shareholder approval including holding meetings of shareholders as often as possible until such approval is obtained.
The
Dawson public offering or Other Public Offering may include warrants similar to those described in the next paragraph without
triggering a reduction of the Floor Price. For avoidance of doubt, the issuance or exercise of the warrants described in the next
paragraph at an effective price below the Floor Price or even below $0.20 per share shall be permissible under this letter agreement
and not cause any adjustment to the securities issued under the 2014 and 2015 Agreements or under this letter agreement, provided
such below Floor Price exercise is a result only of the application of the formula set forth in the next paragraph.
Section
4.13 of the 2014 Agreement precludes the Company from entering into Variable Priced Equity Linked Instruments. You hereby agree
to amend this provision by permitting the Company to issue warrants containing the following cashless exercise formula (or a substantially
similar formula), which cashless exercise formula would otherwise be precluded by Section 4.13 of the 2014 Agreement: “The
Company may under certain conditions elect a cashless exercise of the Warrant with respect to the number of shares specified in
“A” below for the “Net Number” of shares of Common Stock determined according to the following formula
with respect thereto (a “Cashless Exercise”), as follows:
Net
Number = (A x B) / C
For
purposes of the foregoing formula:
A
= the total number of shares with respect to which this Warrant is then being exercised.
B
= Black Scholes Value (as defined in the Form S-1 filed by the Company on June 1, 2015)
C
= the Closing Bid Price of the Common Stock as of two (2) Trading Days prior to the time of such exercise.
Section
4.15 of the 2014 Agreement which precludes the Company from undertaking a reverse or forward split or reclassification for one
year except to obtain a listing on a national securities exchange is modified to allow a reverse split in order to retain such
listing.
Section
4.17 of the 2014 Agreement provides the Purchasers with the right to participate in Subsequent Financings (all capitalized terms
as defined in the 2014 Agreement). You hereby agree to permanently waive such rights.
All
per share numbers in this letter agreement are subject to pro rata adjustment and equitable adjustment for stock splits, dividends
and similar events.
To
the extent that giving effect to the provisions of this letter agreement, including the waivers of certain rights under the 2014
Agreement, would require an amendment of the 2014 Agreement and/or the Transaction Documents by the Purchasers holding at least
a majority of the affected Securities outstanding, the 2014 Agreement and the Transaction Documents are hereby amended. All capitalized
words and terms not defined have the meaning contained in the 2014 Agreement.
Except
as modified above, the terms of the 2014 Agreement remain in full force and effect. This letter agreement shall be governed by
the same law, venue, jurisdiction, execution, delivery and enforcement provisions as the 2014 Agreement.
The
agreements set forth above shall be null and void unless the Company has obtained the approval from the investors under the 2014
Agreement and 2015 Agreement to effectuate these agreements as described above, on or before June 29, 2015 and within 10 days
from the effectiveness of this letter agreement, the Company has delivered to you certificates for the shares of Common Stock,
the warrants and the Registration rights Agreement executed by it.
Please
sign where indicated below.
|
Very
truly yours, |
|
|
|
Jeffrey E. Holman |
|
Chief Executive Officer |
AGREED
AND ACCEPTED: |
|
|
|
[INVESTOR] |
|
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|
|
|
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|
By: |
|
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|
,
|
|
Exhibit
10.5
Vapor
Corp.
3001
Griffin Road,
Dania
Beach, Florida 33312
June
19, 2015
To the Investors
Identified on Exhibit A
|
Re: |
Vapor Corp. - |
|
|
Securities Purchase Agreement dated March 3, 2015 |
Gentlemen:
The
purpose of this letter agreement is to outline and confirm our prior discussions. Within this letter agreement we will be referencing
the Securities Purchase Agreement dated as of November 14, 2014 (the “2014 Agreement”) and the Securities Purchase
Agreement dated as of March 3, 2015 (the “2015 Agreement”), between Vapor Corp., a Delaware corporation (“the
Company”), you and other investors. While your agreement under this letter agreement is limited to the 2015 Agreement, it
is only effective if (i) sufficient investors sign this letter agreement agreeing to amend the 2015 Agreement pursuant to Section
5.5 thereof, and (ii) sufficient investors sign similar letter agreements agreeing to amend the 2014 Agreement pursuant to Section
5.5 thereof. The letter agreements provided to the investors under the 2014 Agreement will be substantively similar to this letter
agreement. The number of shares of the Company’s common stock and warrants issuable upon effectiveness of this letter agreement
to each investor under either the 2014 Agreement or the 2015 Agreement shall vary and be pro rata based upon a fraction in which
the numerator is the amount such investor invested under the 2014 Agreement or 2015 Agreement, as applicable, and the denominator
is the total gross proceeds received by the Company under the 2014 Agreement and the 2015 Agreement (“Pro Rata Basis”)
except as indicated on Exhibit A. The actual number of shares of common stock and warrants issuable to you is set forth
on Exhibit A. The warrants shall be exercisable at the greater of (i) the closing price of the Company’s common stock
as of the date of this letter agreement and (ii) $0.505. The exercise price will be modified in connection with stock splits,
stock dividends, combinations and similar events. The warrant exercise price will be subject to standard lower price issuance
anti-dilution adjustment, subject to shareholder approval. The form of warrant is annexed as Exhibit B. The holders of
the Common Stock and the warrants (and the investors receiving shares of Common Stock and warrants under the 2014 Agreement) are
granted the registration rights described in the form of Registration Rights Agreement annexed hereto as Exhibit C, with
respect to the Common Stock and the warrant shares issuable upon exercise of such warrants.
You
acknowledge that you are still an accredited investor under Regulation D of the Securities Act of 1933 and that you are acquiring
the shares of common stock and warrants for investment and not with a view to distribution.
The
amendments agreed to in this letter agreement shall apply only as long as the Company’s common stock trades on the Nasdaq
Stock Market or the New York Stock Exchange (including the NYSE MKT), or any successors to these national securities exchanges
(any, a “Stock Exchange”) and further provided no action permitted to be taken pursuant to this letter agreement or
otherwise results in a delisting from the principal Stock Exchange for the common stock. Provided, however, that
any future delisting shall not affect any completed issuances of Common Stock or Common Stock Equivalents pursuant to this letter
agreement.
We
have attached as Exhibits D and E, respectively, two non-binding documents, an Engagement Agreement with Dawson James Securities,
Inc. (“Dawson”) dated May 7, 2015 and a Term Sheet with Redwood Management, LLC dated May 26, 2015 (“Redwood”),
which Redwood offering is expected to close with the sale of $1,750,000 of principal value of Debentures (the “Amended Redwood
Offering”). You hereby waive your current rights (prior to execution of this letter agreement) if the Company closes the
Dawson offering or Other Public Offering, as defined, and/or the Amended Redwood Offering. Provided, however, if
the proposed Dawson offering does not close, your waiver includes approval of a marketed registered public offering on the same
substantive terms as the Dawson engagement letter with a substitute underwriter, which offering will be subject to this letter
agreement including the conditions described below (“Other Public Offering”).
Additionally,
we acknowledge the provision of Section 4.12 of the 2015 Agreement, which precludes the Company from issuing Common Stock and
Common Stock Equivalents at an effective price per share of common stock less than the Per Share Purchase Price (all capitalized
terms as defined in the 2015 Agreement). The restriction inhibits the Company from raising capital necessary to meet its working
capital needs. Accordingly, you hereby agree to permanently waive any rights that you have with regards to such covenants, provided
that the conversion price and exercise price of any Common Stock, Common Stock Equivalents and derivative securities issued in
or in connection with such issuances (after taking into account original issue discounts, other discounts, ratchet rights, etc.)
are not less than $0.50 per share, subject to equitable adjustment for stock splits, dividends and similar events (the “Floor
Price”). By way of example, issuance of $1 million of 5% original issue discount notes convertible at $0.50 per share shall
result in the Floor Price being reduced to $.475 per share. This is derived by dividing the cash received by the Company ($950,000)
by the number of shares issuable under the note (2,000,000). Issuances by the Company of Common Stock and Common Stock Equivalents
at prices less than the Floor Price, with respect only to the Dawson public offering and Other Public Offering described above,
(such reduced Floor Price shall be known as the “Reduced Share Price”), shall be permitted provided the Company shall
issue additional shares of Common Stock to investors under both the 2014 and 2015 Agreements as reflected on Exhibit F
with the number of shares deliverable to each investor based upon the above pro rata allocation. Such issuances, if required,
must be made contemporaneously with the closing under the Dawson offering or Other Public Offering, as the case may be. The Conversion
Price of the Notes and Exercise Price of the Warrants and the warrants issued in connection with this letter agreement, outstanding
on the occurrence of such future issuances at the Reduced Share Price shall be reduced (and under no circumstances increased)
with respect to the Dawson public offering or Other Public Offering to be equal to the Reduced Share Price, subject to a floor
price of $0.20 per share. Under no circumstances may the Floor Price be reduced to less than $0.20 per share. If the Rules of
the Nasdaq Capital Market applicable to such reduction require the approval of the Company’s shareholders, then the Company
will not effectuate such reduction until such shareholder approval has been obtained. In such event, the Company agrees to diligently
take all action necessary to obtain such shareholder approval including holding meetings of shareholders as often as possible
until such approval is obtained.
The
Dawson public offering or Other Public Offering may include warrants similar to those described in the next paragraph without
triggering a reduction of the Floor Price. For avoidance of doubt, the issuance or exercise of the warrants described in the next
paragraph at an effective price below the Floor Price or even below $0.20 per share shall be permissible under this letter agreement
and not cause any adjustment to the securities issued under the 2014 and 2015 Agreements or under this letter agreement, provided
such below Floor Price exercise is a result only of the application of the formula set forth in the next paragraph.
Section
4.12 of the 2015 Agreement precludes the Company from entering into Variable Priced Equity Linked Instruments. You hereby agree
to amend this provision by permitting the Company to issue warrants containing the following cashless exercise formula (or a substantially
similar formula), which cashless exercise formula would otherwise be precluded by Section 4.12(b) of the 2015 Agreement: “The
Company may under certain conditions elect a cashless exercise of the Warrant with respect to the number of shares specified in
“A” below for the “Net Number” of shares of Common Stock determined according to the following formula
with respect thereto (a “Cashless Exercise”), as follows:
Net
Number = (A x B) / C
For
purposes of the foregoing formula:
A
= the total number of shares with respect to which this Warrant is then being exercised.
B
= Black Scholes Value (as defined in the Form S-1 filed by the Company on June 1, 2015)
C
= the Closing Bid Price of the Common Stock as of two (2) Trading Days prior to the time of such exercise.
Section
4.16 of the 2015 Agreement precludes the Company from undertaking a reverse split for one year except to obtain a listing on a
national securities exchange without the approval of a majority of the Purchasers (as defined in the 2015 Agreement). By executing
this letter agreement, the Company’s proposed reverse split as contained in the Proxy Statement filed with the Securities
and Exchange Commission on May 22, 2015 is approved.
Section
4.11 of the 2015 Agreement provides the Purchasers with the right to participate in Subsequent Financings (all capitalized terms
as defined in the 2015 Agreement). You hereby agree to permanently waive such rights.
All
per share numbers in this letter agreement are subject to pro rata adjustment and equitable adjustment for stock splits, dividends
and similar events.
To
the extent that giving effect to the provisions of this letter agreement, including the waivers of certain rights under the 2015
Agreement, would require an amendment of the 2015 Agreement and/or the Transaction Documents (as defined therein) by the Purchasers
(as defined in the 2015 Agreement) holding at least 67% of the affected securities outstanding, the 2015 Agreement and the Transaction
Documents (as defined in the 2015 Agreement) are hereby amended.
Except
as modified above, the terms of the 2015 Agreement remain in full force and effect. This letter agreement shall be governed by
the same law, venue, jurisdiction, execution, delivery and enforcement provisions as the 2015 Agreement.
The
agreements set forth above shall be null and void unless the Company has obtained the approval from the investors under the 2014
Agreement and 2015 Agreement to effectuate these agreements as described above, on or before June 29, 2015 and within 10 days
from the effectiveness of this letter agreement, the Company has delivered to you certificates for the shares of Common Stock,
the warrants and the Registration rights Agreement executed by it.
Please
sign where indicated below.
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Very truly yours, |
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Jeffrey E. Holman |
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Chief Executive
Officer |
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AGREED
AND ACCEPTED: |
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[INVESTOR] |
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By: |
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,
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Exhibit
10.6
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
VAPOR
CORP.
Warrant
Shares: _______ |
Issuance
Date: __________, 2015 |
|
Initial
Exercise Date: __________, 2015 |
|
(six
months and one day after the Issuance Date) |
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to the close
of business on the five year anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter,
to subscribe for and purchase from Vapor Corp., a Delaware corporation (the “Company”), up to ______ shares
(as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, for all purposes of this Warrant, the terms
below have the meanings set forth in this Section 1. Any defined terms not defined under this Warrant shall have the meaning set
forth in the 2014 or 2015 Securities Purchase Agreement, as applicable, executed by the Holder and the Company.
a) “Business
Days” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action
to close.
b) “Closing
Bid Price” mean the reported closing price of the Common Stock on a national securities exchange or other market system
on which the Common Stock is listed or trading as of the date of calculation (or on the last preceding trading date if the Common
Stock was not traded on such date).
c) “Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
d) “Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
e) “Exempt
Issuance” means the issuance of (a) shares of Common Stock, restricted stock units or options to employees, officers,
directors or consultants of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the
non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established
for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities
issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities
(other than in connection with stock splits or combinations) or to extend the term of such securities, and (c) securities issued
pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided
that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the
Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
f) “Trading
Days” means a day on which the principal Trading Market is open for trading.
g) “Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on
the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange or the OTCQX or OTCQB (or any successors to any of the foregoing).
h)
“Transfer Agent” means Equity Stock Transfer, LLC, the current transfer agent of the Company, with a mailing
address of 237 W 37th St Suite 601, New York, NY 10018
and a facsimile number of 347.584.3644, and any successor transfer agent
of the Company.
i) “VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed
or quoted for trading on a Trading Market and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most
recent bid price per share of the Common Stock so reported, or (c) in all other cases, the fair market value of a share of Common
Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrant
Shares then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
j) “Waiver
Agreements” means the waivers made by the Holders under those certain letter agreements dated as of June 12, 2015 in
connection with certain rights provided to them in the November 2014 and/or March 2015 private placements as more fully described
in the Waiver Agreements.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such
other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of the
Holder appearing on the books of the Company) of a duly executed facsimile copy (or e-mail attachment) of the Notice of Exercise
in the form annexed hereto and within three (3) Trading Days of the date said Notice of Exercise is delivered to the Company,
the Company shall have received payment of the aggregate Exercise Price of the shares thereby purchased by wire transfer or cashier’s
check drawn on a United States bank or, if available, pursuant to the cashless exercise procedure specified in Section 2(c) below.
No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder
and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this
Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of
lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant
Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date
of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of
such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions
of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available
for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b)
Exercise Price. The exercise price per share of the Common Stock under this Warrant shall be $0.505, subject to
adjustment hereunder (the “Exercise Price”).
c)
Cashless Exercise. This Warrant may also be exercised, in whole or in part, by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B)
(X)] by (A), where:
(A)
= the VWAP on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashless
exercise,” as set forth in the applicable Notice of Exercise;
(B)
= the Exercise Price of this Warrant, as adjusted hereunder; and
(X)
= the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise.
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise
pursuant to this Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. Warrant Shares purchased hereunder shall be transmitted by the Transfer Agent
to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or
resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144, and otherwise by physical delivery of a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant
to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is one (1) Trading Day after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). The Warrant
Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to
have become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised, with payment to
the Company of the Exercise Price (or by cashless exercise, if permitted) and all taxes required to be paid by the Holder, if
any, pursuant to Section 2(d)(vi) prior to the issuance of such shares, having been paid. If the Company fails for any reason
to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall
pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise
(based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20
per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant
Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder
a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with
the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such
date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage
firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to
the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that
the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell
order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion
of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall
be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company
timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having
a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate
sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company
shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall
limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the
Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of Warrant Shares, all of which taxes and expenses shall be paid by
the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by
the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise
and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required
for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect
to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates), would beneficially
own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of
shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially
owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or nonconverted portion of any
other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates.
Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in
accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged
by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of
the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable shall
be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and
of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a
Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic
or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a
more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder
the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be
determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder
or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company,
may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to
the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e)
shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor
holder of this Warrant.
f) Registration
Rights. The Warrant Shares shall be registered with the Commission as required under a Registration Rights Agreement a form
of which is attached as Exhibit A.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company
upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines
(including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by
reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price
shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a)
shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Equity Sales. Notwithstanding anything in this Warrant to the contrary, the provisions of this Section 3(b)
shall be subject to shareholder approval. If any provision of this Warrant is deemed to violate the rules of the Nasdaq Stock
Market, regardless of the receipt of shareholder approval, such provision shall be amended, without further action by the Company
or the Holder, to comply with the Nasdaq Stock Market Rules. If the Company or any Subsidiary thereof, as applicable, at any
time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to reprice, or
otherwise issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common
Stock Equivalents, at an effective price per share less than the Exercise Price then in effect, excluding Exempt Issuances (such
lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being
understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether
by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or
due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares
of Common Stock at an effective price per share that is less than the Exercise Price, such issuance shall be deemed to have occurred
for less than the Exercise Price on such date of the Dilutive Issuance at such effective price), then simultaneously with the
consummation of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such
adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no
adjustments shall be made, paid or issued under this Section 3(b) in respect of an Exempt Issuance. The Company shall notify the
Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock
Equivalents subject to this Section 3(b), indicating therein the applicable issuance price, or applicable reset price, exchange
price, conversion price and other pricing terms. Notwithstanding the foregoing, the issuance of any Common Stock or Common Stock
pursuant to the Waiver Agreements shall not be deemed a Dilutive Issuance.
c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company
grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata
to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could
have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before
the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase
Rights (provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result
in the Holder exceeding the Beneficial Ownership Limitation, 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 Beneficial Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of
capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations
on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a
record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the
Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any
shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution 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 Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completed exercised at the time
of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder
has exercised this Warrant.
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in
one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common
Stock 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) (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would
have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the
Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock
of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number
of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard
to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the
Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise
Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the
Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon
any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of
a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction, purchase this Warrant
from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value of the remaining unexercised portion
of this Warrant on the date of the consummation of such Fundamental Transaction. “Black Scholes Value” means
the value of this Warrant based on the Black and Scholes Option Pricing Model obtained from the “OV” function on Bloomberg,
L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing
purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between
the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility
equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the Trading Day immediately
following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation
shall be the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being
offered in such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement
of the applicable Fundamental Transaction and the Termination Date. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the
obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section
3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without
unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange
for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent
entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any
limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the
exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock
pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock
and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation
of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence
of any such 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 Warrant 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 Warrant and the other Transaction Documents with the same effect as if such Successor Entity
had been named as the Company herein.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as
of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly mail to the Holder a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed
to the Holder at its last address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants
are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is
expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall
be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to mail such notice or any defect therein or
in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent
that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any
of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form
8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with
a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required,
such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading
Days of the date the Holder delivers an assignment form to the Company assigning this Warrant full.
The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved
in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated
the original Issue Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
d)
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144.
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a
view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable
state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other
rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth
in Section 3.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant
Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case
of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation,
in lieu of such Warrant or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next
succeeding Business Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common
Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above
the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may
be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares
upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform
its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard
to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action
or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party hereto shall
commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such Action
or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such Action or Proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities
laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding
the fact that all rights hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with
any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts
as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including
those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto at
or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages
attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second
(2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual
receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as
set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document
constitutes, or contains material, non-public information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability
of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
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VAPOR
CORP. |
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By: |
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Name: |
James
Martin |
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Title: |
Chief
Financial Officer |
NOTICE
OF EXERCISE
TO:
VAPOR CORP.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] [if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in
subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless
exercise procedure set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The
Warrant Shares shall be delivered to the following DWAC Account Number:
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under
the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Signature
of Authorized Signatory of Investing Entity:
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Name
of Authorized Signatory: |
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Title
of Authorized Signatory: |
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Date: |
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ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
Address: |
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(Please
Print) |
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Dated: |
_______________, ______ |
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Holder’s Signature: |
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Exhibit
10.7
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of June 19, 2015, between Vapor
Corp., a Delaware corporation (the “Company”), and each of the several purchasers signatory hereto (each such
purchaser, a “Purchaser” and, collectively, the “Purchasers”).
The
Company and each Purchaser hereby agrees as follows:
1.
Definitions. As used in this Agreement, the following terms shall have the following meanings:
“Advice”
shall have the meaning set forth in Section 6(d).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Effectiveness
Date” means, with respect to the Initial Registration Statement required to be filed hereunder, the 90th calendar day
following the date hereof (or, in the event of a “full review” by the Commission, the 120th calendar day following
the date hereof) and with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or
Section 3(c), the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder
(or, in the event of a “full review” by the Commission, the 90th calendar day following the date such additional Registration
Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the
Commission that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review
and comments, the Effectiveness Date as to such Registration Statement shall be the fifth Trading Day following the date on which
the Company is so notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness
Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day.
“Effectiveness
Period” shall have the meaning set forth in Section 2(a).
“Event”
shall have the meaning set forth in Section 2(d).
“Event
Date” shall have the meaning set forth in Section 2(d).
“Filing
Date” means, with respect to the Initial Registration Statement required hereunder, the 45th calendar day following
the date hereof and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or
Section 3(c), the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Registration
Statement related to the Registrable Securities.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified
Party” shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
“Initial
Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses”
shall have the meaning set forth in Section 5(a).
“Plan
of Distribution” shall have the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated
by the Commission pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to
be incorporated by reference in such Prospectus.
“Registrable
Securities” means, as of any date of determination, (a) all Shares, (b) all Warrant Shares then issued and issuable
upon exercise of the Warrants (assuming on such date the Warrants are exercised in full without regard to any exercise limitations
therein), and (c) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing; provided, however, that any such Registrable Securities shall cease
to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration
Statement hereunder with respect thereto) for so long as (a) a Registration Statement with respect to the sale of such Registrable
Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed
of by the Holder in accordance with such effective Registration Statement, (b) such Registrable Securities have been previously
sold in accordance with Rule 144, or (c) such securities become eligible for resale without volume or manner-of-sale restrictions
and without current public information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed,
delivered and acceptable to the Transfer Agent and the affected Holders (assuming that such securities and any securities issuable
upon exercise, conversion or exchange of which, or as a dividend upon which, such securities were issued or are issuable, were
at no time held by any Affiliate of the Company, and all Warrants are exercised by “cashless exercise” as provided
in Section 2(c) of each of the Warrants), as reasonably determined by the Company, upon the advice of counsel to the Company.
“Registration
Statement” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional
registration statements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and
supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.
“Rule
415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“Selling
Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).
“SEC
Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements
or requests of the Commission staff and (ii) the Securities Act.
“Shares”
means the shares of Common Stock issued (or issuable) under the Waiver Agreements.
“Waiver
Agreements” means the waivers made by the Purchasers under those certain letter agreements dated as of June 12, 2015
in connection with certain rights provided to them in the November 2014 and/or March 2015 private placements as more fully described
in the Waiver Agreements.
“Warrants”
means the warrants being issued under the Waiver Agreements.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
2.
Shelf Registration.
(a)
On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the
resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except
if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration
shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless
otherwise directed by at least 67% in interest of the Holders) substantially the “Plan of Distribution” attached
hereto as Annex A; provided, however, that no Holder shall be required to be named as an “underwriter” without
such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts
to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared
effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable
Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities
Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant
to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement
for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel
to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected
Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration
Statement as of 5:00 p.m. Eastern Time on a Trading Day. The Company shall immediately notify the Holders via facsimile or by
e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness
with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by
9:30 a.m. Eastern Time on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with
the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness
or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b)
Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the
Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on
a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable
efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of
Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for
resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on
Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages;
provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to
advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including
without limitation, Compliance and Disclosure Interpretation 612.09.
(c)
Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d),
if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered
on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to
advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed
in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration
Statement will be reduced as follows:
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a. |
First,
the Company shall reduce or eliminate any securities to be included other than Registrable Securities; |
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b. |
Second, the Company shall reduce Registrable
Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders
on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and |
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c. |
Third, the Company shall reduce the
Registered Securities represented by the Shares (applied, in the case that some of the Shares may be registered, to the Holders
on a pro rata basis based on the total number of the Shares held by such Holders). |
In
the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along
with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement
in accordance with the foregoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by
Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements
on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale
on the Initial Registration Statement, as amended.
In
the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along
with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement
in accordance with the foregoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by
Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements
on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale
on the Initial Registration Statement, as amended.
(d)
If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein,
the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request
for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities
Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission
that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to
the effective date of a Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing
to comments made by the Commission in respect of such Registration Statement within ten (10) Trading Days after the receipt of
comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared
effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective
by the Commission by the Effectiveness Date of the Initial Registration Statement, or (v) after the effective date of a Registration
Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities
included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell
such Registrable Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar
days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as
an “Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose
of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which
such ten (10) Trading Day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar
day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights
the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event
Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay
to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1% multiplied by
the aggregate amount of $0.505 by the number of Shares and Warrants issued under the Waiver Agreements to the Holder. If the Company
fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company
will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable
law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest
thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for
any portion of a month prior to the cure of an Event.
(e)
If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register
the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities
on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration
Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been
declared effective by the Commission.
(f)
Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate
of a Holder as any Underwriter without the prior written consent of such Holder.
3.
Registration Procedures.
In
connection with the Company’s registration obligations hereunder, the Company shall:
(a)
Not less than five (5) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior
to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated
or deemed to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents
proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject
to the review of such Holders, and (ii) cause its officers and directors, counsel and independent registered public accountants
to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct
a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any
such Prospectus or any amendments or supplements thereto to which the Holders of [a majority of the Registrable Securities shall
reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than five (5) Trading
Days after the Holders have been so furnished copies of a Registration Statement or one (1) Trading Day after the Holders have
been so furnished copies of any related Prospectus or amendments or supplements thereto. Each Holder agrees to furnish to the
Company a completed questionnaire in the form attached to this Agreement as Annex B (a “Selling Stockholder Questionnaire”)
on a date that is not less than two (2) Trading Days prior to the Filing Date or by the end of the fourth (4th) Trading Day following
the date on which such Holder receives draft materials in accordance with this Section.
(b)
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and
the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to
the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and,
as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments
received from the Commission with respect to a Registration Statement or any amendment thereto and provide as promptly as reasonably
possible to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement
(provided that, the Company shall excise any information contained therein which would constitute material non-public information
regarding the Company or any of its Subsidiaries), and (iv) comply in all material respects with the applicable provisions of
the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition
by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.
(c)
If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common
Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case
prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than
the number of such Registrable Securities.
(d)
Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as
reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested
by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus
or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission
notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments
in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or Prospectus or for additional information, (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration
Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration
Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be,
it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of
the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be
material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability
of a Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any information
which would constitute material, non-public information regarding the Company or any of its Subsidiaries.
(e)
Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the
effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(f)
Furnish to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to
the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished
or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which
is available on the EDGAR system (or successor thereto) need not be furnished in physical form.
(g)
Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h)
Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification)
of such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition
in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall
not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company
to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in
any such jurisdiction.
(i)
If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free,
to the extent permitted by the Securities Act of 1933 and the rules and regulations thereunder (the “Securities Act”),
of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names
as any such Holder may request.
(j)
Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably possible under the circumstances taking
into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the
premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration
Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference,
and file any other required document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will
contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies
the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the
requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use
its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled
to exercise its right under this Section 3(j) to suspend the availability of a Registration Statement and Prospectus, subject
to the payment of partial liquidated damages otherwise required pursuant to Section 2(d), for a period not to exceed 60 calendar
days (which need not be consecutive days) in any 12-month period.
(k)
Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the
Securities Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus,
including any supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform
the Holders in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified
in Rule 172 and, as a result thereof, the Holders are required to deliver a Prospectus in connection with any disposition of Registrable
Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities
hereunder.
(l)
The Company shall use its best efforts to maintain eligibility for use of Form S-3 (or any successor form thereto) for the registration
of the resale of Registrable Securities.
(m)
The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common
Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive
control over the shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration
of the Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s
request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise
occur solely because of such delay shall be suspended as to such Holder only, until such information is delivered to the Company.
4.
Registration Expenses. All fees and expenses incident to the performance of or compliance with, this Agreement by the Company
shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect
to filings made with the Commission, (B) with respect to filings required to be made with any Trading Market on which the Common
Stock is then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to
by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with
Blue Sky qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements
of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and
expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by
this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred
in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall
the Company be responsible for any broker or similar commissions of any Holder or, except to the extent provided for in the Transaction
Documents, any legal fees or other costs of the Holders.
5.
Indemnification.
(a)
Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold
harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable
Securities as principal as a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors
and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack
of such title or any other title) of each of them, each Person who controls any such Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents
and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack
of such title or any other title) of each such controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees)
and expenses (collectively, “Losses”), as incurred, arising out of or relating to (1) any untrue or alleged
untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission
of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or
supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection
with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue
statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method
of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use
in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi),
the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder
in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt
by such Holder of the Advice contemplated in Section 6(d), but only if and to the extent that following the receipt of the Advice
the misstatement or omission giving rise to such Loss would have been corrected. The Company shall notify the Holders promptly
of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by
this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such indemnified person and shall survive the transfer of any Registrable Securities by any of the Holders
in accordance with Section 6(h).
(b)
Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely
upon: any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus
or supplement thereto, in light of the circumstances under which they were made) not misleading (i) to the extent, but only to
the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to the
Company expressly for inclusion in such Registration Statement or such Prospectus or (ii) to the extent, but only to the extent,
that such information relates to such Holder’s information provided in the Selling Stockholder Questionnaire or the proposed
method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for
use in a Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus
or in any amendment or supplement thereto or (iii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi),
to the extent, but only to the extent, related to the use by such Holder of an outdated, defective or otherwise unavailable Prospectus
after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for
use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(d), but only if and to the
extent that following the receipt of the Advice the misstatement or omission giving rise to such Loss would have been corrected.
In no event shall the liability of a selling Holder be greater in amount than the dollar amount of the proceeds (net of all expenses
paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise
been required to pay by reason of such untrue statement or omission) received by such Holder upon the sale of the Registrable
Securities included in the Registration Statement giving rise to such indemnification obligation.
(c)
Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity
is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all
fees and expenses incurred in connection with defense thereof; provided, that, the failure of any Indemnified Party to give such
notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only)
to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to
appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying
Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or
(3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if
the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more
than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld or delayed.
No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses
to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with
this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying
Party; provided, that, the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and
expenses applicable to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder.
(d)
Contribution. If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient
to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable
by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified
Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among
other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party
or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include,
subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other fees or expenses incurred by
such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if
the indemnification provided for in this Section was available to such party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred
to in the immediately preceding paragraph. In no event shall the contribution obligation of a Holder of Registrable Securities
be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim
relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving
rise to such contribution obligation.
The
indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties
may have to the Indemnified Parties.
6.
Miscellaneous.
(a)
Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under
this Agreement, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each
of the Company and each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action
for specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would
be adequate.
(b)
[Reserved]
(c)
[Reserved]
(d)
Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice
from the Company of the occurrence of any event of the kind described in Section 3(d)(iii) through (vi), such Holder will forthwith
discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company
will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company agrees
and acknowledges that any periods during which the Holder is required to discontinue the disposition of the Registrable Securities
hereunder shall be subject to the provisions of Section 2(d).
(e)
Piggy-Back Registrations. If, at any time during the Effectiveness Period, there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection
with the Company’s stock option or other employee benefit plans, then the Company shall deliver to each Holder a written
notice of such determination and, if within fifteen days after the date of the delivery of such notice, any such Holder shall
so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities
such Holder requests to be registered; provided, however, that the Company shall not be required to register any
Registrable Securities pursuant to this Section 6(e) that are eligible for resale pursuant to Rule 144 (without volume restrictions
or current public information requirements) promulgated by the Commission pursuant to the Securities Act or that are the subject
of a then effective Registration Statement that is available for resales or other dispositions by such Holder.
(f)
Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall
be in writing and signed by the Company and the Holders of 67% or more of the then outstanding Registrable Securities (for purposes
of clarification, this includes any Registrable Securities issuable upon exercise or conversion of any Security); provided, that
if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent
of such disproportionately impacted Purchaser (or group of Purchasers) shall be required. If a Registration Statement does not
register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then
the number of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder
shall have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the
rights of a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given only
by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates; provided, however,
that the provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of
the first sentence of this Section 6(f). No consideration shall be offered or paid to any Person to amend or consent to a waiver
or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to this
Agreement.
(g)
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto at
or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages
attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second
(2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual
receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as
set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document
constitutes, or contains material, non-public information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
(h)
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns
of each of the parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights
or obligations hereunder without the prior written consent of all of the Holders of the then outstanding Registrable Securities.
Each Holder may assign their respective rights under this Agreement to any Person to whom such Holder assigns or transfers any
Registrable Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of this Agreement that applies to the “Holder.”
(i)
No Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall
the Company or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities,
that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions
hereof. Except as set forth on Schedule 6(i), neither the Company nor any of its Subsidiaries has previously entered into
any agreement granting any registration rights with respect to any of its securities to any Person that have not been satisfied
in full.
(j)
Execution and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature page were an original thereof.
(k)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard
to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action
or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party hereto shall
commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations
of the Company under Section 4.10, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Action or Proceeding.
(l)
Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(m)
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.
(n)
Headings. The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall
not be deemed to limit or affect any of the provisions hereof.
(o)
Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not
joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of
the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any
closing, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership,
an association, a joint venture or any other kind of group or entity, or create a presumption that the Holders are in any way
acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement
or any other matters, and the Company acknowledges that the Holders are not acting in concert or as a group, and the Company shall
not assert any such claim, with respect to such obligations or transactions. Each Holder shall be entitled to protect and enforce
its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other
Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the
obligations of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was
done solely for the convenience of the Company and not because it was required or requested to do so by any Holder. It is expressly
understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and not between
the Company and the Holders collectively and not between and among Holders.
********************
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
|
VAPOR
CORP. |
|
|
|
|
By: |
|
|
Name: |
James Martin |
|
Title: |
Chief
Financial Officer |
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS TO VPCO RRA]
Name
of Holder:
Signature
of Authorized Signatory of Holder:
Name
of Authorized Signatory:
Title
of Authorized Signatory:
[SIGNATURE
PAGES CONTINUE]
Annex
A
Plan
of Distribution
Each
Selling Stockholder (the “Selling Stockholders”) of the securities and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the principal Trading Market
or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales
may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:
|
● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
|
|
|
|
● |
block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction; |
|
|
|
|
● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
|
|
|
|
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
|
|
|
|
● |
privately
negotiated transactions; |
|
|
|
|
● |
settlement
of short sales; |
|
|
|
|
● |
in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities
at a stipulated price per security; |
|
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|
● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
|
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● |
a
combination of any such methods of sale; or |
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● |
any
other method permitted pursuant to applicable law. |
The
Selling Stockholders may also sell securities under Rule 144 under the Securities Act of 1933, as amended (the “Securities
Act”), if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities,
from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an
agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a
principal transaction a markup or markdown in compliance with FINRA IM-2440.
In
connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions
with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of
hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close
out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one
or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus
(as supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement
or understanding, directly or indirectly, with any person to distribute the securities.
The
Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without
the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act
or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under
the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed
brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered
hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser
at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
Annex
B
VAPOR
CORP.
Selling
Stockholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Registrable Securities”) of Vapor Corp., a Delaware corporation
(the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange
Commission (the “Commission”) a registration statement (the “Registration Statement”) for
the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”),
of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights
Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company
upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include
the Registrable Securities owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
|
(a) |
Full
Legal Name of Selling Stockholder |
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(b) |
Full
Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities are held: |
|
|
|
|
|
|
|
(c) |
Full
Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power
to vote or dispose of the securities covered by this Questionnaire): |
|
|
|
2. Address for Notices to Selling Stockholder:
Telephone: |
|
Fax: |
|
Contact Person: |
|
3. Broker-Dealer Status:
|
(a) |
Are
you a broker-dealer? |
Yes
[ ] No [ ]
|
(b) |
If
“yes” to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services
to the Company? |
Yes
[ ] No [ ]
|
Note: |
If
“no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter
in the Registration Statement. |
|
(c) |
Are
you an affiliate of a broker-dealer? |
Yes
[ ] No [ ]
|
(d) |
If
you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course
of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings,
directly or indirectly, with any person to distribute the Registrable Securities? |
Yes
[ ] No [ ]
|
Note: |
If
“no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter
in the Registration Statement. |
4. Beneficial Ownership of Securities of the Company Owned by the Selling Stockholder.
Except
as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company
other than the securities issued pursuant to the Waiver Agreement.
|
(a) |
Type
and Amount of other securities beneficially owned by the Selling Stockholder: |
|
|
|
5. Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners
of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three years.
|
State
any exceptions here: |
|
|
|
|
The
undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that
may occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned
shall not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its
affiliates.
By
signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through
5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation
or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered
either in person or by its duly authorized agent.
Date:
|
Beneficial
Owner: |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
PLEASE
FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT
MAIL, TO:
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