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): March 9, 2016
POSITIVEID
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-33297 |
|
06-1637809 |
(State
or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification Number) |
1690
South Congress Avenue, Suite 201
Delray
Beach, Florida 33445
(Address
of principal executive offices) (zip code)
(561)
805-8000
(Registrant’s
telephone number, including area code)
(Former
Name or Former Address if Changed Since Last Report)
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 (see General Instruction A.2. below):
[ ]
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)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Cautionary
Note on Forward-Looking Statements
This
Current Report on Form 8-K (this “Report”) and any related statements of representatives and partners of the Company
contain, or may contain, among other things, certain “forward-looking statements” within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). Such forward-looking statements involve significant risks and uncertainties.
Such statements may include, without limitation, statements with respect to the Company’s plans, objectives, projections,
expectations and intentions and other statements identified by words such as “projects,” “may,” “will,”
“could,” “would,” “should,” “believes,” “expects,” “anticipates,”
“estimates,” “intends,” “plans,” or similar expressions. These statements are based upon the
current beliefs and expectations of the Company’s management and are subject to significant risks and uncertainties, including
those detailed in the Company’s filings with the Securities and Exchange Commission (the “SEC”). Actual results
may differ significantly from those set forth in the forward-looking statements. These forward-looking statements involve certain
risks and uncertainties that are subject to change based on various factors (many of which are beyond the Company’s control).
The Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by applicable law.
Item
1.01 Entry into a Material Definitive Agreement.
On
March 9, 2016, PositiveID Corporation (the “Company”) closed a Securities Purchase Agreement (“SPA”) with
Union Capital, LLC (“Union”), providing for the purchase of two Convertible Redeemable Notes in the aggregate principal
amount of $270,400 (the “Notes”), with the first note being in the amount of $135,200 (“Note I”) and the
second note being in the amount of $135,200 (“Note II”). Note I was funded on March 11, 2016, with the Company receiving
$125,000 of net proceeds (net of original issue discount and legal fees), and Note II was initially paid for by the issuance of
an offsetting $130,000 secured note issued by Union to the Company (“Union Secured Note”). The funding of Note II
is subject to certain conditions as described in Note II. The Notes bear a guaranteed interest rate of 12%; are due and payable
on March 9, 2017; and may be converted by Union at any time after 180 days of the date of closing into shares of Company common
stock at the lower of $0.028 per share or a 37.5% discount of the volume weighted average price (as determined in the Notes) calculated
at the time of conversion. The Notes are long-term debt obligations that are material to the Company. The Notes also contain certain
representations, warranties, covenants and events of default, and increases in the amount of the principal and interest rates
under the Notes in the event of such defaults.
The
foregoing description of the terms of the SPA, Note I, Note II, and Union Secured Note do not purport to be complete and are qualified
in its entirety by the complete text of the documents attached as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3, and Exhibit 10.4 to
this Current Report on Form 8-K.
Item
2.03 Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information provided in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item
3.02 Unregistered Sales of Equity Securities
The
descriptions of the equity securities described in Item 1.01 issued by the Company are incorporated herein. The issuance of the
notes set forth herein was made in reliance on the exemption provided by Section 4(2) of the Securities Act of 1933, as amended
(the “Securities Act”) for the offer and sale of securities not involving a public offering, and Regulation D promulgated
under the Securities Act. The Company’s reliance upon Section 4(2) of the Securities Act in issuing the securities was based
upon the following factors: (a) the issuance of the securities was an isolated private transaction by us which did not involve
a public offering; (b) there was only one recipient; (c) there were no subsequent or contemporaneous public offerings of the securities
by the Company; (d) the securities were not broken down into smaller denominations; (e) the negotiations for the issuance of the
securities took place directly between the individual and the Company; and (f) the recipient of the note was an accredited investor.
Item
9.01 Financial Statements and Exhibits
Exhibit
Number |
|
Description |
10.1 |
|
Form
of Securities Purchase Agreement, dated March 9, 2016, with Union Capital, LLC |
10.2 |
|
Form
of 12% Convertible Redeemable Note, dated March 9, 2016, with Union Capital, LLC |
10.3 |
|
Form
of 12% Convertible Redeemable Note, dated March 9, 2016, with Union Capital, LLC |
10.4 |
|
Form
of Union Collateralized Note, dated March 9, 2016, with PositiveID Corporation |
SIGNATURES
Pursuant
to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
|
POSITIVEID
CORPORATION |
|
|
Date:
March 11, 2016 |
By: |
/s/
William J. Caragol |
|
Name: |
William
J. Caragol |
|
Title: |
Chief
Executive Officer |
SECURITIES
PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of March 9, 2016, by and between PositiveID Corp,
a Delaware corporation, with headquarters located at 1690 South Congress Avenue, Suite 201, Delray Beach 33445, (the “Company”),
and UNION CAPITAL, LLC, a New York limited liability company, with its address at 525 Norton Parkway, New Haven, CT 06511
(the “Buyer”).
WHEREAS:
A.
The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by the rules and regulations as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “1933 Act”);
B.
Buyer desires to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in this Agreement
two 12% convertible notes of the Company, in the forms attached hereto as Exhibit A and B in the aggregate principal amount of
$270,400.00 (with the first note being in the amount of $135,200.00 and the second note being in the amount of $135,200.00) (together
with any note(s) issued in replacement thereof or as a dividend thereon or otherwise with respect thereto in accordance with the
terms thereof, the “Note”), convertible into shares of common stock, of the Company (the “Common Stock”),
upon the terms and subject to the limitations and conditions set forth in such Note. Each of the two notes shall contain a 4%
OID such that the purchase price of each note shall be $130,000.00. The first of the two notes (the “First Note”)
shall be paid for by the Buyer as set forth herein. The second note (the “Second Note”) shall initially be paid for
by the issuance of an offsetting $130,000.00 secured note issued to the Company by the Buyer (“Buyer Note”), provided
that prior to conversion of the Second Note, the Buyer must have paid off the Buyer Note in cash such that the Second Note may
not be converted until it has been paid for in cash by Buyer.
C.
The Buyer wishes to purchase, upon the terms and conditions stated in this Agreement, such principal amount of Note as is set
forth immediately below its name on the signature pages hereto; and
NOW
THEREFORE, the Company and the Buyer severally (and not jointly) hereby agree as follows:
1.
Purchase and Sale of Note.
a.
Purchase of Note. On each Closing Date (as defined below), the Company shall issue and sell to the Buyer and the Buyer
agrees to purchase from the Company such principal amount of Note as is set forth immediately below the Buyer’s name on
the signature pages hereto.
Company
Initials
b.
Form of Payment. On the Closing Date (as defined below), (i) the Buyer shall pay the purchase price for the Note to be
issued and sold to it at the Closing (as defined below) (the “Purchase Price”) by wire transfer of immediately available
funds to the Company, in accordance with the Company’s written wiring instructions, against delivery of the Note in the
principal amount equal to the Purchase Price as is set forth immediately below the Buyer’s name on the signature pages hereto,
and (ii) the Company shall deliver such duly executed Note on behalf of the Company, to the Buyer, against delivery of such Purchase
Price.
c.
Closing Date. The date and time of the first issuance and sale of the Note pursuant to this Agreement (the “Closing
Date”) shall be on or about March 9, 2016, or such other mutually agreed upon time. The closing of the transactions contemplated
by this Agreement (the “Closing”) shall occur on the Closing Date at such location as may be agreed to by the parties.
Subsequent Closings shall occur when the Buyer Note is repaid. The Closing of the Second Note shall be on or before the dates
specified in the Buyer Note.
2.
Buyer’s Representations and Warranties. The Buyer represents and warrants to the Company that:
a.
Investment Purpose. As of the date hereof, the Buyer is purchasing the Note and the shares of Common Stock issuable upon
conversion of or otherwise pursuant to the Note, such shares of Common Stock being collectively referred to herein as the “Conversion
Shares” and, collectively with the Note, the “Securities”) for its own account and not with a present view towards
the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the 1933 Act;
provided, however, that by making the representations herein, the Buyer does not agree to hold any of the Securities
for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant
to a registration statement or an exemption under the 1933 Act.
b.
Accredited Investor Status. The Buyer is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D (an “Accredited Investor”). Any of Buyer’s transferees, assignees, or purchasers must be “accredited
investors” in order to qualify as prospective transferees, permitted assignees in the case of Buyer’s or Holder’s
transfer, assignment or sale of the Note.
c.
Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance upon specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying
upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility
of the Buyer to acquire the Securities.
d.
Information. The Buyer and its advisors, if any, have been, and for so long as the Note remain outstanding will continue
to be, furnished with all materials relating to the business, finances and operations of the Company and materials relating to
the offer and sale of the Securities which have been requested by the Buyer or its advisors. The Buyer and its advisors, if any,
have been, and for so long as the Note remain outstanding will continue to be, afforded the opportunity to ask questions of the
Company. Notwithstanding the foregoing, the Company has not disclosed to the Buyer any material nonpublic information and will
not disclose such information unless such information is disclosed to the public prior to or promptly following such disclosure
to the Buyer. Neither such inquiries nor any other due diligence investigation conducted by Buyer or any of its advisors or representatives
shall modify, amend or affect Buyer’s right to rely on the Company’s representations and warranties contained in Section
3 below. The Buyer understands that its investment in the Securities involves a significant degree of risk. The Buyer is not aware
of any facts that may constitute a breach of any of the Company’s representations and warranties made herein.
e.
Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the Securities.
f.
Transfer or Re-sale. The Buyer understands that (i) the sale or re-sale of the Securities has not been and is not being
registered under the 1933 Act or any applicable state securities laws, and the Securities may not be transferred unless (a) the
Securities are sold pursuant to an effective registration statement under the 1933 Act, (b) in the case of subparagraphs (c),
(d) and (e) below, the Buyer shall have delivered to the Company, at the cost of the Buyer, an opinion of counsel that shall be
in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Securities to
be sold or transferred may be sold, or transferred pursuant to an exemption from such registration, including the removal of any
restrictive legend which opinion shall be accepted by the Company, (c) the Securities are sold or transferred to an “affiliate”
(as defined in Rule 144 promulgated under the 1933 Act (or a successor rule) (“Rule 144”) of the Buyer who agrees
to sell or otherwise transfer the Securities only in accordance with this Section 2(f) and who is an Accredited Investor, (d)
the Securities are sold pursuant to Rule 144, or (e) the Securities are sold pursuant to Regulation S under the 1933 Act (or a
successor rule) (“Regulation S”); (ii) any sale of such Securities made in reliance on Rule 144 may be made only in
accordance with the terms of said Rule and further, if said Rule is not applicable, any re-sale of such Securities under circumstances
in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined
in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder;
and (iii) neither the Company nor any other person is under any obligation to register such Securities under the 1933 Act or any
state securities laws or to comply with the terms and conditions of any exemption thereunder (in each case). Notwithstanding the
foregoing or anything else contained herein to the contrary, the Securities may be pledged as collateral in connection with a
bona fide margin account or other lending arrangement.
g.
Legends. The Buyer understands that the Note and, until such time as the Conversion Shares have been registered under the
1933 Act will be sold pursuant to Rule 144 or Regulation S without any restriction as to the number of securities as of a particular
date that can then be immediately sold, the Conversion Shares may bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of the certificates for such Securities):
“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.”
The
legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of any Security
upon which it is stamped, if, unless otherwise required by applicable state securities laws, (a) such Security is registered for
sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to Rule 144 or Regulation
S without any restriction as to the number of securities as of a particular date that can then be immediately sold, and (b) such
holder provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security may be made without registration under the 1933 Act,
and that legend removal is appropriate, which opinion shall be accepted by the Company so that the sale or transfer is effected.
The Buyer agrees to sell all Securities, including those represented by a certificate(s) from which the legend has been removed,
in compliance with applicable prospectus delivery requirements, if any. In the event that the Company does not accept the opinion
of counsel provided by the Buyer with respect to the transfer of Securities pursuant to an exemption from registration, such as
Rule 144 or Regulation S, within 2 business days, it will be considered an Event of Default under the Note.
h.
Authorization; Enforcement. This Agreement has been duly and validly authorized. This Agreement has been duly executed
and delivered on behalf of the Buyer, and this Agreement constitutes a valid and binding agreement of the Buyer enforceable in
accordance with its terms.
i.
Residency. The Buyer is a resident of the jurisdiction set forth immediately below the Buyer’s name on the signature
pages hereto.
j.
No Short Sales. Buyer/Holder, its successors and assigns, agree that so long as the Note remains outstanding, the Buyer/Holder
shall not enter into or effect “short sales” of the Common Stock or hedging transaction which establishes a short
position with respect to the Common Stock of the Company. The Company acknowledges and agrees that upon delivery of a Conversion
Notice by the Buyer/Holder, the Buyer/Holder immediately owns the shares of Common Stock described in the Conversion Notice and
any sale of those shares issuable under such Conversion Notice would not be considered short sales.
3.
Representations and Warranties of the Company. The Company represents and warrants to the Buyer that:
a.
Organization and Qualification. The Company and each of its subsidiaries, if any, is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is incorporated, with full power and authority (corporate
and other) to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated
and conducted.
b.
Authorization; Enforcement. (i) The Company has all requisite corporate power and authority to enter into and perform this
Agreement, the Note and to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance
with the terms hereof and thereof, (ii) the execution and delivery of this Agreement, the Note by the Company and the consummation
by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note and the issuance
and reservation for issuance of the Conversion Shares issuable upon conversion or exercise thereof) have been duly authorized
by the Company’s Board of Directors and no further consent or authorization of the Company, its Board of Directors, or its
shareholders is required, (iii) this Agreement has been duly executed and delivered by the Company by its authorized representative,
and such authorized representative is the true and official representative with authority to sign this Agreement and the other
documents executed in connection herewith and bind the Company accordingly, and (iv) this Agreement constitutes, and upon execution
and delivery by the Company of the Note, each of such instruments will constitute, a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
c.
Issuance of Shares. The Conversion Shares are duly authorized and reserved for issuance and, upon conversion of the Note
in accordance with its respective terms, will be validly issued, fully paid and non-assessable, and free from all taxes, liens,
claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights
of shareholders of the Company and will not impose personal liability upon the holder thereof.
d.
Acknowledgment of Dilution. The Company understands and acknowledges the potentially dilutive effect to the Common Stock
upon the issuance of the Conversion Shares upon conversion of the Note. The Company further acknowledges that its obligation to
issue Conversion Shares upon conversion of the Note in accordance with this Agreement, the Note is absolute and unconditional
regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Company.
e.
No Conflicts. The execution, delivery and performance of this Agreement, the Note by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for
issuance of the Conversion Shares) will not (i) conflict with or result in a violation of any provision of the Certificate of
Incorporation or By-laws, or (ii) violate or conflict with, or result in a breach of any provision of, or constitute a default
(or an event which with notice or lapse of time or both could become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, patent, patent license or instrument to which the Company
or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the
Company or its securities are subject) applicable to the Company or any of its Subsidiaries or by which any property or asset
of the Company or any of its Subsidiaries is bound or affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect). All
consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof. The Company is not in violation of the listing requirements
of the OTC Markets Exchange (the “OTC MARKETS”) and does not reasonably anticipate that the Common Stock will be delisted
by the OTC MARKETS in the foreseeable future, nor are the Company’s securities “chilled” by FINRA. The Company
and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.
f.
Absence of Litigation. Except as disclosed in the Company’s Periodic Report filings with the SEC, there is no action,
suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the Company or any of its subsidiaries, threatened against or affecting the Company or
any of its subsidiaries, or their officers or directors in their capacity as such, that could have a material adverse effect.
Schedule 3(f) contains a complete list and summary description of any pending or, to the knowledge of the Company, threatened
proceeding against or affecting the Company or any of its subsidiaries, without regard to whether it would have a material adverse
effect. The Company and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.
g.
Acknowledgment Regarding Buyer’ Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting
solely in the capacity of arm’s length purchasers with respect to this Agreement and the transactions contemplated hereby.
The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions contemplated hereby and any statement made by the Buyer or any of
its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice
or a recommendation and is merely incidental to the Buyer’ purchase of the Securities. The Company further represents to
the Buyer that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of
the Company and its representatives.
h.
No Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has
directly or indirectly made any offers or sales in any security or solicited any offers to buy any security under circumstances
that would require registration under the 1933 Act of the issuance of the Securities to the Buyer.
i.
Title to Property. The Company and its subsidiaries have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances and defects except such as are described in Schedule 3(i) or such as would
not have a material adverse effect. Any real property and facilities held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions as would not have a material adverse effect.
j.
Bad Actor. No officer or director of the Company would be disqualified under Rule 506(d) of the Securities Act as amended
on the basis of being a “bad actor” as that term is established in the September 19, 2013 Small Entity Compliance
Guide published by the Securities and Exchange Commission.
k.
Breach of Representations and Warranties by the Company. If the Company breaches any of the representations or warranties
set forth in this Section 3, and in addition to any other remedies available to the Buyer pursuant to this Agreement, it will
be considered an Event of default under the Note.
4.
COVENANTS.
a.
Expenses. At the Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith
(“Documents”), including, without limitation, reasonable attorneys’ and consultants’ fees and expenses,
transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any
consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of
restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise
the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice
by the Buyer or the submission of an invoice by the Buyer.
b.
Listing. The Company shall promptly secure the listing of the Conversion Shares upon each national securities exchange
or automated quotation system, if any, upon which shares of Common Stock are then listed (subject to official notice of issuance)
and, so long as the Buyer owns any of the Note Securities, shall maintain, so long as any other shares of Common Stock shall be
so listed, such listing of all Conversion Shares from time to time issuable upon conversion of the Note. The Company will obtain
and, so long as the Buyer owns any of the Securities, maintain the listing and trading of its Common Stock on the OTC MARKETS
or any equivalent replacement market, the Nasdaq stock market (“Nasdaq”), the New York Stock Exchange (“NYSE”),
or the American Stock Exchange (“AMEX”) and will comply in all respects with the Company’s reporting, filing
and other obligations under the bylaws or rules of the Financial Industry Regulatory Authority (“FINRA”) and such
exchanges, as applicable. The Company shall promptly provide to the Buyer copies of any notices it receives from the OTC MARKETS
and any other markets on which the Common Stock is then listed regarding the continued eligibility of the Common Stock for listing
on such markets.
c.
Corporate Existence. So long as the Buyer beneficially owns the Note, the Company shall maintain its corporate existence
and shall not sell all or substantially all of the Company’s assets, except in the event of a merger or consolidation or
sale of all or substantially all of the Company’s assets, where the surviving or successor entity in such transaction (i)
assumes the Company’s obligations hereunder and under the agreements and instruments entered into in connection herewith
and (ii) is a publicly traded corporation whose Common Stock is listed for trading on the OTC MARKETS, Nasdaq, NYSE or AMEX.
d.
No Integration. The Company shall not make any offers or sales of any security (other than the Securities) under circumstances
that would require registration of the Securities being offered or sold hereunder under the 1933 Act or cause the offering of
the Securities to be integrated with any other offering of securities by the Company for the purpose of any stockholder approval
provision applicable to the Company or its securities.
e.
Breach of Covenants. If the Company breaches any of the covenants set forth in this Section 4, and in addition to any other
remedies available to the Buyer pursuant to this Agreement, it will be considered an event of default under the Note.
5.
Governing Law; Miscellaneous.
a.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without
regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated
by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the state and county
of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The
Company and Buyer waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s
fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid
or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may
prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement.
Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding
in connection with this Agreement or any other Transaction Document 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.
b.
Counterparts; Signatures by Facsimile. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering
this Agreement.
c.
Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
d.
Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any
law shall not affect the validity or enforceability of any other provision hereof.
e.
Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of
the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither
the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Buyer.
f.
Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered
or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid,
(iv) via electronic mail or (v) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such
other address as such party shall have specified most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation
generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during
normal business hours where such notice is to be received) or delivery via electronic mail, or the first business day following
such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or
(b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If
to the Company, to:
PositiveID
Corp.
1690
South Congress Avenue
Suite
201
Delray
Beach, FL 33445
Attn:
William Caragol, CEO
If
to the Buyer:
UNION
CAPITAL, LLC
525
Norton Parkway,
New
Haven, CT 06511
Attn:
Yakov Borenstein, Manager
Each
party shall provide notice to the other party of any change in address.
g.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and assigns. Neither the Company nor the Buyer shall assign this Agreement or any rights or obligations hereunder without the
prior written consent of the other. Notwithstanding the foregoing, the Buyer may assign its rights hereunder to any “qualified
person”, any “permitted assigns”, or “prospective transferee” that acquires or purchases Note Securities
in a private transaction from the Buyer or to any of its “affiliates,” as that term is defined under the 1934 Act,
without the consent of the Company with Buyer’s Opinion of Counsel. A qualified person is an “accredited investor”
transferee, assignee, or purchaser of the Note who succeeds to the Holder’s right, title and interest to all or a portion
of the Note accompanied with an Opinion of Counsel as provided for in Section 2(f).
h.
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
i.
Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement
shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The
Company agrees to indemnify and hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage
arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and
covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses
as they are incurred.
j.
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby.
k.
No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied against any party.
l.
Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that the Buyer shall be entitled, in addition to all other
available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining,
preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity
of showing economic loss and without any bond or other security being required.
IN
WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above
written.
PositiveID
Corp. |
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By: |
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Name: |
William
Caragol |
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Title: |
CEO |
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UNION
CAPITAL, LLC. |
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By: |
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Name: |
Yakov
Borenstein |
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Title: |
Manager |
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AGGREGATE
SUBSCRIPTION AMOUNT: |
$270,400.00 |
Aggregate
Principal Amount of Notes:
Aggregate
Purchase Price:
Note
1: $135,200.00, less $5,200 in OID and $5,000.00 in legal fees
Note
2: $135,200.00, less $5,200 in OID and $5,000.00 in legal fees
EXHIBIT
A
144
NOTE - $135,200
EXHIBIT
B
BACK
END NOTE - $135,200
THIS
NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “1933 ACT”)
US
$135,200.00
POSITIVEID
CORP.
12%
CONVERTIBLE REDEEMABLE NOTE
DUE
MARCH 9, 2017
FOR
VALUE RECEIVED, PositiveID Corp. (the “Company”) promises to pay to the order of UNION CAPITAL, LLC and its authorized
successors and Permitted Assigns, defined below, (“Holder”), the aggregate principal face amount of One Hundred
Thirty Five Thousand Two Hundred Dollars exactly (U.S. $135,200.00) on March 9, 2017 (“Maturity Date”) and
to pay interest on the principal amount outstanding hereunder at the rate of 12% per annum commencing on March 9, 2016. The interest
will be paid to the Holder in whose name this Note is registered on the records of the Company regarding registration and transfers
of this Note. This Note contains a 4% OID such that the purchase price is $130,000.00. The principal of, and interest on, this
Note are payable at 525 Norton Parkway, New Haven, CT 06511, initially, and if changed, last appearing on the records of the Company
as designated in writing by the Holder hereof from time to time. The Company will pay each interest payment and the outstanding
principal due upon this Note before or on the Maturity Date, less any amounts required by law to be deducted or withheld, to the
Holder of this Note by check or wire transfer addressed to such Holder at the last address appearing on the records of the Company.
The forwarding of such check or wire transfer shall constitute a payment of outstanding principal hereunder and shall satisfy
and discharge the liability for principal on this Note to the extent of the sum represented by such check or wire transfer. Interest
shall be payable in Common Stock (as defined below) pursuant to paragraph 4(b) herein. Permitted Assigns means any Holder assignment,
transfer or sale of all or a portion of this Note accompanied by an Opinion of Counsel as provided for in Section 2(f) of the
Securities Purchase Agreement.
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This
Note is subject to the following additional provisions:
1.
This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested
by the Holder surrendering the same. No service charge will be made for such registration or transfer or exchange, except that
Holder shall pay any tax or other governmental charges payable in connection therewith. To the extent that Holder subsequently
transfers, assigns, sells or exchanges any of the multiple lesser denomination notes, Holder acknowledges that it will provide
the Company with Opinions of Counsel as provided for in Section 2(f) of the Securities Purchase Agreement.
2.
The Company shall be entitled to withhold from all payments any amounts required to be withheld under applicable laws.
3.
This Note may be transferred or exchanged only in compliance with the Securities Act of 1933, as amended (“Act”),
applicable state securities laws and Sections 2(f) and 5(f) of the Securities Purchase Agreement. Any attempted transfer to a
non-qualifying party shall be treated by the Company as void. Prior to due presentment for transfer of this Note, the Company
and any agent of the Company may treat the person in whose name this Note is duly registered on the Company’s records as
the owner hereof for all other purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall
be affected or bound by notice to the contrary. Any Holder of this Note electing to exercise the right of conversion set forth
in Section 4(a) hereof, in addition to the requirements set forth in Section 4(a), and any prequalified prospective transferee
of this Note, also is required to give the Company written confirmation that this Note is being converted (“Notice of
Conversion”) in the form annexed hereto as Exhibit A. The date of receipt (including receipt by telecopy) of
such Notice of Conversion shall be the Conversion Date. All notices of conversion will be accompanied by an Opinion of Counsel.
4.
(a) The Holder of this Note is entitled, at its option, at any time, to convert all or any amount of the principal face amount
of this Note then outstanding into shares of the Company’s common stock (the “Common Stock”) at a price
(“Conversion Price”) for each share of Common Stock equal to the lower of (i) $0.028 per share
or (ii) 62.5% of the lowest VWAP (volume weighted average price) of the Common Stock as reported
on the National Quotations Bureau OTC Markets exchange which the Company’s shares are traded or any exchange upon which
the Common Stock may be traded in the future (“Exchange”), for the fifteen prior
trading days including the day upon which a Notice of Conversion is received by the Company (provided such Notice of Conversion
is delivered together with an Opinion of Counsel, by fax or other electronic method of communication to the Company after 4 P.M.
Eastern Standard or Daylight Savings Time if the Holder wishes to include the same day closing price). If the shares have not
been delivered within 3 business days, the Notice of Conversion may be rescinded. Such conversion shall be effectuated by the
Company delivering the shares of Common Stock to the Holder within 3 business days of receipt by the Company of the Notice of
Conversion. Accrued, but unpaid interest shall be subject to conversion. No fractional shares or scrip representing fractions
of shares will be issued on conversion, but the number of shares issuable shall be rounded to the nearest whole share. To the
extent the Conversion Price of the Company’s Common Stock closes below the par value per share, the Company will take all
steps necessary to solicit the consent of the stockholders to reduce the par value to the lowest value possible under law. The
Company agrees to honor all conversions submitted pending this increase. In the event the Company experiences a DTC “Chill”
on its shares, the conversion price shall be decreased to 52.5% instead of 62.5% while that “Chill” is in effect.
In no event shall the Holder be allowed to effect a conversion if such conversion, along with all other shares of Company
Common Stock beneficially owned by the Holder and its affiliates would exceed 9.9% of the outstanding shares of the Common Stock
of the Company. The conversion discount and lookback period will be adjusted downward (i.e. for the benefit of the Holder) if
the Company offers a more favorable conversion discount (whether via interest, rate OID or otherwise) or lookback period to another
party while this note is in effect and the Holder will also get the benefit of any other term (for a example a higher prepay)
granted to any third party while this Note is in effect
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(b)
Interest on any unpaid principal balance of this Note shall be paid at the rate of 12% per annum. Interest shall be paid by the
Company in Common Stock (“Interest Shares”). Holder may, at any time, send in a Notice of Conversion to the Company
for Interest Shares based on the formula provided in Section 4(a) above. The dollar amount converted into Interest Shares shall
be all or a portion of the accrued interest calculated on the unpaid principal balance of this Note to the date of such notice.
The 12% interest is guaranteed, and is such in no event shall the interest be less than 12% of the $135,200 principal amount and
this amount may be added the principal amount of this Note for purposes of conversions and repayments.
(c)
The Notes may be prepaid during the first 6 months with a prepayment penalty equal to 120% of the face amount and any accrued
interest. This Note may not be prepaid after the 6th month anniversary. Such redemption must be closed and funded within 3 days
of giving notice of redemption of the right to redeem shall be null and void.
(d)
Upon (i) a transfer of all or substantially all of the assets of the Company to any person in a single transaction or series of
related transactions, (ii) a reclassification, capital reorganization (excluding an increase in authorized capital) or other change
or exchange of outstanding shares of the Common Stock, other than a forward or reverse stock split or stock dividend, or (iii)
any consolidation or merger of the Company with or into another person or entity in which the Company is not the surviving entity
(other than a merger which is effected solely to change the jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares of Common Stock) (each of items (i), (ii) and
(iii) being referred to as a “Sale Event”), then, in each case, the Company shall, upon request of the Holder, redeem
this Note in cash for 150% of the principal amount, plus accrued but unpaid interest through the date of redemption, or at the
election of the Holder, such Holder may convert the unpaid principal amount of this Note (together with the amount of accrued
but unpaid interest) into shares of Common Stock immediately prior to such Sale Event at the Conversion Price.
(e)
In case of any Sale Event (not to include a sale of all or substantially all of the Company’s assets) in connection with
which this Note is not redeemed or converted, the Company shall cause effective provision to be made so that the Holder of this
Note shall have the right thereafter, by converting this Note, to purchase or convert this Note into the kind and number of shares
of stock or other securities or property (including cash) receivable upon such reclassification, capital reorganization or other
change, consolidation or merger by a holder of the number of shares of Common Stock that could have been purchased upon exercise
of the Note and at the same Conversion Price, as defined in this Note, immediately prior to such Sale Event. The foregoing provisions
shall similarly apply to successive Sale Events. If the consideration received by the holders of Common Stock is other than cash,
the value shall be as determined by the Board of Directors of the Company or successor person or entity acting in good faith.
Initials
5.
No provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, and interest on, this Note at the time, place, and rate, and in the form, herein prescribed.
6.
The Company hereby expressly waives demand and presentment for payment, notice of non-payment, protest, notice of protest, notice
of dishonor, notice of acceleration or intent to accelerate, and diligence in taking any action to collect amounts called for
hereunder and shall be directly and primarily liable for the payment of all sums owing and to be owing hereto.
7.
The Company agrees to pay all costs and expenses, including reasonable attorneys’ fees and expenses, which may be incurred
by the Holder in collecting any amount due under this Note.
8.
If one or more of the following described “Events of Default” shall occur:
(a)
The Company shall default in the payment of principal or interest on this Note or any other note issued to the Holder by the Company;
or
(b)
Any of the representations or warranties made by the Company herein or in any certificate or financial or other written statements
heretofore or hereafter furnished by or on behalf of the Company in connection with the execution and delivery of this Note, or
the Securities Purchase Agreement under which this note was issued shall be false or misleading in any respect; or
(c)
The Company shall fail to perform or observe, in any respect, any covenant, term, provision, condition, agreement or obligation
of the Company under this Note or any other note issued to the Holder; or
(d)
The Company shall (1) become insolvent (which does not include a “going concern opinion); (2) admit in writing its inability
to pay its debts generally as they mature; (3) make an assignment for the benefit of creditors or commence proceedings for its
dissolution; (4) apply for or consent to the appointment of a trustee, liquidator or receiver for its or for a substantial part
of its property or business; (5) file a petition for bankruptcy relief, consent to the filing of such petition or have filed against
it an involuntary petition for bankruptcy relief, all under federal or state laws as applicable; or
Initials
(e)
A trustee, liquidator or receiver shall be appointed for the Company or for a substantial part of its property or business without
its consent and shall not be discharged within sixty (60) days after such appointment; or
(f)
Any governmental agency or any court of competent jurisdiction at the instance of any governmental agency shall assume custody
or control of the whole or any substantial portion of the properties or assets of the Company; or
(g)
One or more money judgments, writs or warrants of attachment, or similar process, in excess of fifty thousand dollars ($50,000)
in the aggregate, shall be entered or filed against the Company or any of its properties or other assets and shall remain unpaid,
unvacated, unbonded or unstayed for a period of fifteen (15) days or in any event later than five (5) days prior to the date of
any proposed sale thereunder; or
(h)
Defaulted on or breached any term of any other note of similar debt instrument into which the Company has entered and failed to
cure such default within the appropriate grace period; or
(i)
The Company shall have its Common Stock delisted from an exchange (including the OTC Markets exchange) or, if the Common Stock
trades on an exchange, then trading in the Common Stock shall be suspended for more than 10 consecutive days or ceases to file
its 1934 act reports with the SEC;
(j)
If a majority of the members of the Board of Directors of the Company on the date hereof are no longer serving as members of the
Board;
(k)
The Company shall not deliver to the Holder the Common Stock pursuant to paragraph 4 herein without restrictive legend within
3 business days of its receipt of a Notice of Conversion which includes an Opinion of Counsel expressing an opinion which supports
the removal of a restrictive legend; or
(l)
The Company shall not replenish the reserve set forth in Section 12, within 3 business days of the request of the Holder.
(m)
The Company shall be delinquent in its periodic report filings with the Securities and Exchange Commission; or
(n)
The Company shall cause to lose the “bid” price for its stock in a market (including the OTC marketplace or other
exchange).
Initials
Then,
or at any time thereafter, unless cured within 5 days, and in each and every such case, unless such Event of Default shall have
been waived in writing by the Holder (which waiver shall not be deemed to be a waiver of any subsequent default) at the option
of the Holder and in the Holder’s sole discretion, the Holder may consider this Note immediately due and payable, without
presentment, demand, protest or (further) notice of any kind (other than notice of acceleration), all of which are hereby expressly
waived, anything herein or in any note or other instruments contained to the contrary notwithstanding, and the Holder may immediately,
and without expiration of any period of grace, enforce any and all of the Holder’s rights and remedies provided herein or
any other rights or remedies afforded by law. Upon an Event of Default, interest shall accrue at a default interest rate of 24%
per annum or, if such rate is usurious or not permitted by current law, then at the highest rate of interest permitted by law.
In the event of a breach of Section 8(k) the penalty shall be $250 per day the shares are not issued beginning on the 4th day
after the conversion notice was delivered to the Company. This penalty shall increase to $500 per day beginning on the 10th day.
The penalty for a breach of Section 8(n) shall be an increase of the outstanding principal amounts by 20%. In case of a breach
of Section 8(i), the outstanding principal due under this Note shall increase by 50%. If this Note is not paid at maturity, the
outstanding principal due under this Note shall increase by 10%. Further, if a breach of Section 8(m) occurs or is continuing
after the 6 month anniversary of the Note, then the Holder shall be entitled to use the lowest closing bid price during the delinquency
period as a base price for the conversion. For example, if the lowest closing bid price during the delinquency period is $0.01
per share and the conversion discount is 50% the Holder may elect to convert future conversions at $0.005 per share. If this Note
is not paid at maturity, the outstanding principal due under this Note shall increase by 10%.
If
the Holder shall commence an action or proceeding to enforce any provisions of this Note, including, without limitation, engaging
an attorney, then if the Holder prevails in such action, the Holder shall be reimbursed by the Company for its attorneys’
fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
Make-Whole
for Failure to Deliver Loss. At the Holder’s election, if the Company fails for any reason to deliver to the Holder the
conversion shares by the by the 3rd business day following the delivery of a Notice of Conversion to the Company and if the Holder
incurs a Failure to Deliver Loss, then at any time the Holder may provide the Company written notice indicating the amounts payable
to the Holder in respect of the Failure to Deliver Loss and the Company must make the Holder whole as follows:
Failure
to Deliver Loss = [(High trade price at any time on or after the day of exercise) x (Number of conversion shares)]
The
Company must pay the Failure to Deliver Loss by cash payment, and any such cash payment must be made by the third business day
from the time of the Holder’s written notice to the Company.
9.
In case any provision of this Note is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid
or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent
possible, and the validity and enforceability of the remaining provisions of this Note will not in any way be affected or impaired
thereby.
10.
Neither this Note nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed
by the Company and the Holder. This Note may not be assigned without the prior written consent of the Company.
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11.
The Company represents that it is not a “shell” issuer and that if it previously has been a “shell” issuer
that at least 12 months have passed since the Company has reported Form 10 type information indicating it is no longer a “shell
issuer.
12.
The Company shall issue irrevocable transfer agent instructions reserving 195,509,000 shares of its Common Stock for conversions
under this Note and a note of $416,667 being assigned to the Holder (the “Share Reserve”). Upon full conversion of
this Note, any shares remaining in the Share Reserve shall be cancelled. The Company shall pay all transfer agent costs associated
with issuing and delivering the share certificates to Holder. If such amounts are to be paid by the Holder, it may deduct such
amounts from the Conversion Price. The company should at all times reserve a minimum of four times the amount of shares required
if the note would be fully converted. The Holder may reasonably request increases from time to time to reserve such amounts. The
Company will instruct its transfer agent to provide the outstanding share information to the Holder in connection with its conversions.
13.
The Company will give the Holder direct notice of any corporate actions, including but not limited to name changes, stock splits,
recapitalizations etc. This notice shall be given to the Holder as soon as possible under law.
14.
This Note shall be governed by and construed in accordance with the laws of New York applicable to contracts made and wholly to
be performed within the State of New York and shall be binding upon the successors and assigns of each party hereto. The Holder
and the Company hereby mutually waive trial by jury and consent to exclusive jurisdiction and venue in the courts of the State
of New York or in the Federal courts sitting in the county or city of New York. This Agreement may be executed in counterparts,
and the facsimile transmission of an executed counterpart to this Agreement shall be effective as an original.
Initials
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed by an officer thereunto duly authorized.
Dated:
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POSITIVEID
CORP. |
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By: |
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Title: |
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Initials
EXHIBIT
A
NOTICE
OF CONVERSION
(To
be Executed by the Registered Holder in order to Convert the Note)
The
undersigned hereby irrevocably elects to convert $___________ of the above Note into _________ Shares of Common Stock of PositiveID
Corp. (“Shares”) according to the conditions set forth in such Note, as of the date written below.
If
Shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer and other taxes
and charges payable with respect thereto.
Date
of Conversion: |
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Applicable
Conversion Price: |
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Signature:
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[Print
Name of Holder and Title of Signer] |
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Shares
are to be registered in the following name: |
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Name:
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Address:
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Tel:
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Fax:
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SSN
or EIN: |
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Shares are to be sent or delivered to the following account:
Initials
THIS
NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “1933 ACT”)
US
$135,200.00
POSITIVEID
CORP.
12%
CONVERTIBLE REDEEMABLE NOTE
DUE
MARCH 9, 2017
BACK
END NOTE
FOR
VALUE RECEIVED, PositiveID Corp. (the “Company”) promises to pay to the order of UNION CAPITAL, LLC and its authorized
successors and Permitted Assigns, defined below, (“Holder”), the aggregate principal face amount of One Hundred
Thirty Five Thousand Two Hundred Dollars exactly (U.S. $135,200.00) on March 9, 2017 (“Maturity Date”) and
to pay interest on the principal amount outstanding hereunder at the rate of 12% per annum commencing on March 9, 2016. The interest
will be paid to the Holder in whose name this Note is registered on the records of the Company regarding registration and transfers
of this Note. This Note contains a 4% OID such that the purchase price is $130,000.00. The principal of, and interest on, this
Note are payable at 525 Norton Parkway, New Haven, CT 06511, initially, and if changed, last appearing on the records of the Company
as designated in writing by the Holder hereof from time to time. The Company will pay each interest payment and the outstanding
principal due upon this Note before or on the Maturity Date, less any amounts required by law to be deducted or withheld, to the
Holder of this Note by check or wire transfer addressed to such Holder at the last address appearing on the records of the Company.
The forwarding of such check or wire transfer shall constitute a payment of outstanding principal hereunder and shall satisfy
and discharge the liability for principal on this Note to the extent of the sum represented by such check or wire transfer. Interest
shall be payable in Common Stock (as defined below) pursuant to paragraph 4(b) herein. Permitted Assigns means any Holder assignment,
transfer or sale of all or a portion of this Note accompanied by an Opinion of Counsel as provided for in Section 2(f) of the
Securities Purchase Agreement.
Initials
This
Note is subject to the following additional provisions:
1.
This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested
by the Holder surrendering the same. No service charge will be made for such registration or transfer or exchange, except that
Holder shall pay any tax or other governmental charges payable in connection therewith. To the extent that Holder subsequently
transfers, assigns, sells or exchanges any of the multiple lesser denomination notes, Holder acknowledges that it will provide
the Company with Opinions of Counsel as provided for in Section 2(f) of the Securities Purchase Agreement.
2.
The Company shall be entitled to withhold from all payments any amounts required to be withheld under applicable laws.
3.
This Note may be transferred or exchanged only in compliance with the Securities Act of 1933, as amended (“Act”),
applicable state securities laws and Sections 2(f) and 5(f) of the Securities Purchase Agreement. Any attempted transfer to a
non-qualifying party shall be treated by the Company as void. Prior to due presentment for transfer of this Note, the Company
and any agent of the Company may treat the person in whose name this Note is duly registered on the Company’s records as
the owner hereof for all other purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall
be affected or bound by notice to the contrary. Any Holder of this Note electing to exercise the right of conversion set forth
in Section 4(a) hereof, in addition to the requirements set forth in Section 4(a), and any prequalified prospective transferee
of this Note, also is required to give the Company written confirmation that this Note is being converted (“Notice of
Conversion”) in the form annexed hereto as Exhibit A. The date of receipt (including receipt by telecopy) of
such Notice of Conversion shall be the Conversion Date. All notices of conversion will be accompanied by an Opinion of Counsel.
4.
(a) The Holder of this Note is entitled, at its option, at any time, to convert all or any amount of the principal face amount
of this Note then outstanding into shares of the Company’s common stock (the “Common Stock”) at a price
(“Conversion Price”) for each share of Common Stock equal to the lower of (i) $0.028 per share
or (ii) 62.5% of the lowest VWAP (volume weighted average price) of the Common Stock as reported
on the National Quotations Bureau OTC Markets exchange which the Company’s shares are traded or any exchange upon which
the Common Stock may be traded in the future (“Exchange”), for the fifteen prior
trading days including the day upon which a Notice of Conversion is received by the Company (provided such Notice of Conversion
is delivered together with an Opinion of Counsel, by fax or other electronic method of communication to the Company after 4 P.M.
Eastern Standard or Daylight Savings Time if the Holder wishes to include the same day closing price). If the shares have not
been delivered within 3 business days, the Notice of Conversion may be rescinded. Such conversion shall be effectuated by the
Company delivering the shares of Common Stock to the Holder within 3 business days of receipt by the Company of the Notice of
Conversion. Accrued, but unpaid interest shall be subject to conversion. No fractional shares or scrip representing fractions
of shares will be issued on conversion, but the number of shares issuable shall be rounded to the nearest whole share. To the
extent the Conversion Price of the Company’s Common Stock closes below the par value per share, the Company will take all
steps necessary to solicit the consent of the stockholders to reduce the par value to the lowest value possible under law. The
Company agrees to honor all conversions submitted pending this increase. In the event the Company experiences a DTC “Chill”
on its shares, the conversion price shall be decreased to 52.5% instead of 62.5% while that “Chill” is in effect.
In no event shall the Holder be allowed to effect a conversion if such conversion, along with all other shares of Company
Common Stock beneficially owned by the Holder and its affiliates would exceed 9.9% of the outstanding shares of the Common Stock
of the Company. The conversion discount and lookback period will be adjusted downward (i.e. for the benefit of the Holder) if
the Company offers a more favorable conversion discount (whether via interest, rate OID or otherwise) or lookback period to another
party while this note is in effect and the Holder will also get the benefit of any other term (for a example a higher prepay)
granted to any third party while this Note is in effect
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(b)
Interest on any unpaid principal balance of this Note shall be paid at the rate of 12% per annum. Interest shall be paid by the
Company in Common Stock (“Interest Shares”). Holder may, at any time, send in a Notice of Conversion to the Company
for Interest Shares based on the formula provided in Section 4(a) above. The dollar amount converted into Interest Shares shall
be all or a portion of the accrued interest calculated on the unpaid principal balance of this Note to the date of such notice.
The 12% interest is guaranteed, and is such in no event shall the interest be less than 12% of the $135,200 principal amount and
this amount may be added the principal amount of this Note for purposes of conversions and repayments.
(c)
This Note may not be prepaid, except that if the $135,200 Rule 144 convertible redeemable note issued by the Company of even date
herewith is redeemed by the Company within 6 months of the issuance date of such Note, all obligations of the Company under this
Note and all obligations of the Holder under the Holder issued Back End Note will be automatically be deemed satisfied and this
Note and the Holder issued Back End Note will be automatically be deemed cancelled and of no further force or effect.
(d)
Upon (i) a transfer of all or substantially all of the assets of the Company to any person in a single transaction or series of
related transactions, (ii) a reclassification, capital reorganization (excluding an increase in authorized capital) or other change
or exchange of outstanding shares of the Common Stock, other than a forward or reverse stock split or stock dividend, or (iii)
any consolidation or merger of the Company with or into another person or entity in which the Company is not the surviving entity
(other than a merger which is effected solely to change the jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares of Common Stock) (each of items (i), (ii) and
(iii) being referred to as a “Sale Event”), then, in each case, the Company shall, upon request of the Holder, redeem
this Note in cash for 150% of the principal amount, plus accrued but unpaid interest through the date of redemption, or at the
election of the Holder, such Holder may convert the unpaid principal amount of this Note (together with the amount of accrued
but unpaid interest) into shares of Common Stock immediately prior to such Sale Event at the Conversion Price.
(e)
In case of any Sale Event (not to include a sale of all or substantially all of the Company’s assets) in connection with
which this Note is not redeemed or converted, the Company shall cause effective provision to be made so that the Holder of this
Note shall have the right thereafter, by converting this Note, to purchase or convert this Note into the kind and number of shares
of stock or other securities or property (including cash) receivable upon such reclassification, capital reorganization or other
change, consolidation or merger by a holder of the number of shares of Common Stock that could have been purchased upon exercise
of the Note and at the same Conversion Price, as defined in this Note, immediately prior to such Sale Event. The foregoing provisions
shall similarly apply to successive Sale Events. If the consideration received by the holders of Common Stock is other than cash,
the value shall be as determined by the Board of Directors of the Company or successor person or entity acting in good faith.
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5.
No provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, and interest on, this Note at the time, place, and rate, and in the form, herein prescribed.
6.
The Company hereby expressly waives demand and presentment for payment, notice of non-payment, protest, notice of protest, notice
of dishonor, notice of acceleration or intent to accelerate, and diligence in taking any action to collect amounts called for
hereunder and shall be directly and primarily liable for the payment of all sums owing and to be owing hereto.
7.
The Company agrees to pay all costs and expenses, including reasonable attorneys’ fees and expenses, which may be incurred
by the Holder in collecting any amount due under this Note.
8.
If one or more of the following described “Events of Default” shall occur:
(a)
The Company shall default in the payment of principal or interest on this Note or any other note issued to the Holder by the Company;
or
(b)
Any of the representations or warranties made by the Company herein or in any certificate or financial or other written statements
heretofore or hereafter furnished by or on behalf of the Company in connection with the execution and delivery of this Note, or
the Securities Purchase Agreement under which this note was issued shall be false or misleading in any respect; or
(c)
The Company shall fail to perform or observe, in any respect, any covenant, term, provision, condition, agreement or obligation
of the Company under this Note or any other note issued to the Holder; or
(d)
The Company shall (1) become insolvent (which does not include a “going concern opinion); (2) admit in writing its inability
to pay its debts generally as they mature; (3) make an assignment for the benefit of creditors or commence proceedings for its
dissolution; (4) apply for or consent to the appointment of a trustee, liquidator or receiver for its or for a substantial part
of its property or business; (5) file a petition for bankruptcy relief, consent to the filing of such petition or have filed against
it an involuntary petition for bankruptcy relief, all under federal or state laws as applicable; or
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(e)
A trustee, liquidator or receiver shall be appointed for the Company or for a substantial part of its property or business without
its consent and shall not be discharged within sixty (60) days after such appointment; or
(f)
Any governmental agency or any court of competent jurisdiction at the instance of any governmental agency shall assume custody
or control of the whole or any substantial portion of the properties or assets of the Company; or
(g)
One or more money judgments, writs or warrants of attachment, or similar process, in excess of fifty thousand dollars ($50,000)
in the aggregate, shall be entered or filed against the Company or any of its properties or other assets and shall remain unpaid,
unvacated, unbonded or unstayed for a period of fifteen (15) days or in any event later than five (5) days prior to the date of
any proposed sale thereunder; or
(h)
Defaulted on or breached any term of any other note of similar debt instrument into which the Company has entered and failed to
cure such default within the appropriate grace period; or
(i)
The Company shall have its Common Stock delisted from an exchange (including the OTC Markets exchange) or, if the Common Stock
trades on an exchange, then trading in the Common Stock shall be suspended for more than 10 consecutive days or ceases to file
its 1934 act reports with the SEC;
(j)
If a majority of the members of the Board of Directors of the Company on the date hereof are no longer serving as members of the
Board;
(k)
The Company shall not deliver to the Holder the Common Stock pursuant to paragraph 4 herein without restrictive legend within
3 business days of its receipt of a Notice of Conversion which includes an Opinion of Counsel expressing an opinion which supports
the removal of a restrictive legend; or
(l)
The Company shall not replenish the reserve set forth in Section 12, within 3 business days of the request of the Holder.
(m)
The Company’s Common Stock has a closing bid price of less than $0.007 per share for at least 5 consecutive trading days;
or
(n)
The aggregate dollar trading volume of the Company’s Common Stock is less than fifty thousand dollars ($50,000.00) in any
5 consecutive trading days; or
(o)
The Company shall cease to be “current” in its filings with the Securities and Exchange Commission; or
(p)
The Company shall lose the “bid” price for its stock in a market (including the OTC marketplace or other exchange)
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Then,
or at any time thereafter, unless cured within 5 days (except for 8(m) and 8(n) which are incurable defaults, the sole remedy
of which is to allow the Holder to cancel both this Note and the Holder Issued Note, and in each and every such case, unless
such Event of Default shall have been waived in writing by the Holder (which waiver shall not be deemed to be a waiver of any
subsequent default) at the option of the Holder and in the Holder’s sole discretion, the Holder may consider this Note immediately
due and payable, without presentment, demand, protest or (further) notice of any kind (other than notice of acceleration), all
of which are hereby expressly waived, anything herein or in any note or other instruments contained to the contrary notwithstanding,
and the Holder may immediately, and without expiration of any period of grace, enforce any and all of the Holder’s rights
and remedies provided herein or any other rights or remedies afforded by law. Upon an Event of Default, interest shall accrue
at a default interest rate of 24% per annum or, if such rate is usurious or not permitted by current law, then at the highest
rate of interest permitted by law. In the event of a breach of Section 8(k) the penalty shall be $250 per day the shares are not
issued beginning on the 4th day after the conversion notice was delivered to the Company. This penalty shall increase
to $500 per day beginning on the 10th day. The penalty for a breach of Section 8(p) shall be an increase of the outstanding
principal amounts by 20%. In case of a breach of Section 8(i), the outstanding principal due under this Note shall increase by
50%. Further, if a breach of Section 8(o) occurs or is continuing after the 6 month anniversary of the Note, then the Holder shall
be entitled to use the lowest closing bid price during the delinquency period as a base price for the conversion. For example,
if the lowest closing bid price during the delinquency period is $0.01 per share and the conversion discount is 50% the Holder
may elect to convert future conversions at $0.005 per share. If this Note is not paid at maturity, the outstanding principal due
under this Note shall increase by 10%.
If
the Holder shall commence an action or proceeding to enforce any provisions of this Note, including, without limitation, engaging
an attorney, then if the Holder prevails in such action, the Holder shall be reimbursed by the Company for its attorneys’
fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
Make-Whole
for Failure to Deliver Loss. At the Holder’s election, if the Company fails for any reason to deliver to the Holder the
conversion shares by the by the 3rd business day following the delivery of a Notice of Conversion to the Company and if the Holder
incurs a Failure to Deliver Loss, then at any time the Holder may provide the Company written notice indicating the amounts payable
to the Holder in respect of the Failure to Deliver Loss and the Company must make the Holder whole as follows:
Failure
to Deliver Loss = [(High trade price at any time on or after the day of exercise) x (Number of conversion shares)]
The
Company must pay the Failure to Deliver Loss by cash payment, and any such cash payment must be made by the third business day
from the time of the Holder’s written notice to the Company.
9.
In case any provision of this Note is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid
or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent
possible, and the validity and enforceability of the remaining provisions of this Note will not in any way be affected or impaired
thereby.
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10.
Neither this Note nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed
by the Company and the Holder. This Note may not be assigned without the prior written consent of the Company.
11.
The Company represents that it is not a “shell” issuer and that if it previously has been a “shell” issuer
that at least 12 months have passed since the Company has reported Form 10 type information indicating it is no longer a “shell
issuer.
12.
Prior to cash funding of this Note, The Company will issue irrevocable transfer agent instructions reserving 3x the number of
shares of Common Stock necessary to allow the holder to convert this note based on the discounted conversion price set forth in
Section 4(a) herewith. Upon full conversion of this Note, the reserve representing this Note shall be cancelled. The Company will
pay all transfer agent costs associated with issuing and delivering the shares. If such amounts are to be paid by the Holder,
it may deduct such amounts from the Conversion Price. Conversion Notices may be sent to the Company or its transfer agent via
electric mail. The Company will instruct its transfer agent to provide the outstanding share information to the Holder in connection
with its conversions.
13.
The Company will give the Holder direct notice of any corporate actions, including but not limited to name changes, stock splits,
recapitalizations etc. This notice shall be given to the Holder as soon as possible under law.
14.
This Note shall be governed by and construed in accordance with the laws of New York applicable to contracts made and wholly to
be performed within the State of New York and shall be binding upon the successors and assigns of each party hereto. The Holder
and the Company hereby mutually waive trial by jury and consent to exclusive jurisdiction and venue in the courts of the State
of New York or in the Federal courts sitting in the county or city of New York. This Agreement may be executed in counterparts,
and the facsimile transmission of an executed counterpart to this Agreement shall be effective as an original.
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IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed by an officer thereunto duly authorized.
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EXHIBIT
A
NOTICE
OF CONVERSION
(To
be Executed by the Registered Holder in order to Convert the Note)
The
undersigned hereby irrevocably elects to convert $___________ of the above Note into _________ Shares of Common Stock of PositiveID
Corp. (“Shares”) according to the conditions set forth in such Note, as of the date written below.
If
Shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer and other taxes
and charges payable with respect thereto.
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Shares are to be sent or delivered to the following account:
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THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY
NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. LENDERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
UNION
CAPITAL, LLC
COLLATERALIZED
SECURED PROMISSORY NOTE
$130,000.00 |
New
Haven, CT |
March
9, 2016
1.
Principal and Interest
FOR
VALUE RECEIVED, Union Capital, LLC, a New York Limited Liability Company (the “Company”) hereby absolutely and unconditionally
promises to pay to PositiveID Corp. (the “Lender”), or order, the principal amount of One Hundred Thirty Thousand
Dollars ($130,000.00) no later than March 9, 2017, unless the Lender does not meet the “current information requirements”
required under Rule 144 of the Securities Act of 1933, as amended, in which case the Company may declare the offsetting note issued
by the Lender on the same date herewith to be in Default (as defined in that note) and cross cancel its payment obligations under
this Note as well as the Lenders payment obligations under the offsetting note. This Full Recourse Note shall bear simple interest
at the rate of 12%.
2.
Repayments and Prepayments; Security.
a.
All principal under this Note shall be due and payable no later than March 9, 2017, unless the Lender does not meet the “current
information requirements” required under Rule 144 of the Securities Act of 1933, as amended, in which case the Company may
declare the offsetting note issued by the Lender on the same date herewith to be in Default (as defined in that note) and cross
cancel its payment obligations under this Note as well as the Lenders payment obligations under the offsetting note.
b.
The Company may pay this Note at any time. This note may not be assigned by the Lender, except by operation of law.
c.
This Note shall initially be secured by the pledge of the $135,200.00 12% convertible promissory note issued to the Company by
the Lender on even date herewith (the “Lender Note”). The Company may exchange this collateral for other collateral
with an appraised value of at least $130,000.00, by providing 3 days prior written notice to the Lender. If the Lender
does not object to the substitution of collateral in that 3 day period, such substitution of collateral shall be deemed to have
been accepted by the Lender. Notwithstanding the foregoing, an exchange of collateral for $130,000.00 in cash shall not
require the approval of the Lender. Any collateral exchange shall not constitute a waiver of any defaults under a Lender
note. All collateral shall be retained by New Venture Attorneys, P.C., which shall act as the escrow agent for the collateral
for the benefit of the Lender. The Company may not effect any conversions under the Lender Note until it has made full cash payment
for the portion of the Lender Note being converted.
3.
Events of Default; Acceleration.
a.
The principal amount of this Note is subject to prepayment in whole or in part upon the occurrence and during the continuance
of any of the following events (each, an “Event of Default”): the initiation of any bankruptcy, insolvency, moratorium,
receivership or reorganization by or against the Company, or a general assignment of assets by the Company for the benefit of
creditors. Upon the occurrence of any Event of Default, the entire unpaid principal balance of this Note and all of the unpaid
interest accrued thereon shall be immediately due and payable. The Company may offset amounts due to the Lender under this Note
by similar amounts that may be due to the Company by the Lender resulting from breaches under the Lender Note.
b.
No remedy herein conferred upon the Lender is intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and in addition to every other remedy hereunder, now or hereafter existing at law or in equity or otherwise. The Company
accepts and agrees that this Note is a full recourse note and that the Holder may exercise any and all remedies available to it
under law.
4.
Notices.
a.
All notices, reports and other communications required or permitted hereunder shall be in writing and may be delivered in person,
by telecopy with written confirmation, overnight delivery service or U.S. mail, in which event it may be mailed by first-class,
certified or registered, postage prepaid, addressed (i) if to a Lender, at such Lender’s address as the Lender shall have
furnished the Company in writing and (ii) if to the Company at such address as the Company shall have furnished the Lender(s)
in writing.
b.
Each such notice, report or other communication shall for all purposes under this Note be treated as effective or having been
given when delivered if delivered personally or, if sent by mail, at the earlier of its receipt or 72 hours after the same has
been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid,
or, if sent by electronic communication with confirmation, upon the delivery of electronic communication.
5.
Miscellaneous.
a.
Neither this Note nor any provisions hereof may be changed, waived, discharged or terminated orally, but only by a signed statement
in writing.
b.
No failure or delay by the Lender to exercise any right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other right, power or privilege. The provisions of this Note are severable
and if any one provision hereof shall be held invalid or unenforceable in whole or in part in any jurisdiction, such invalidity
or unenforceability shall affect only such provision in such jurisdiction. This Note expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. The Company and every endorser and guarantor of this Note regardless
of the time, order or place of signing hereby waives presentment, demand, protest and notice of every kind, and assents to any
extension or postponement of the time for payment or any other indulgence, to any substitution, exchange or release of collateral,
and to the addition or release of any other party or person primarily or secondarily liable.
c.
If Lender retains an attorney for collection of this Note, or if any suit or proceeding is brought for the recovery of all, or
any part of, or for protection of the indebtedness respected by this Note, then the Company agrees to pay all costs and expenses
of the suit or proceeding, or any appeal thereof, incurred by the Lender, including without limitation, reasonable attorneys’
fees.
d.
This Note shall for all purposes be governed by, and construed in accordance with the laws of the State of New York (without reference
to conflict of laws).
e.
This Note shall be binding upon the Company’s successors and assigns, and shall inure to the benefit of the Lender’s
successors and assigns.
IN
WITNESS WHEREOF, the Company has caused this Note to be executed by its duly authorized officer to take effect as of the date
first hereinabove written.
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UNION
CAPITAL, LLC |
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APPROVED: |
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POSITIVEID
CORP. |
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