AUTHENTIDATE HOLDING CORP (Form: 8-K, Received: 06/12/2013 17:21:01)

AUTHENTIDATE HOLDING CORP.

/s/ O’Connell Benjamin

O’Connell Benjamin

Chief Executive Officer and President

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): June 11, 2013

AUTHENTIDATE HOLDING CORP.

(Exact name of registrant as specified in its charter)

COMMISSION FILE NUMBER: 0-20190

DELAWARE

14-1673067

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

Connell Corporate Center

300 Connell Drive, 5 ^th Floor

Berkeley Heights, New Jersey 07922

(Address and zip code of principal executive offices)

(908) 787-1700

(Registrant’s telephone number, including area code

CHECK THE APPROPRIATE BOX BELOW IF THE FORM 8-K FILING IS INTENDED TO SIMULTANEOUSLY SATISFY THE FILING OBLIGATION OF THE REGISTRANT UNDER ANY OF THE FOLLOWING PROVISIONS:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

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))

Item 1.01 Entry into a Material Definitive Agreement.

Underwritten Offering

On June 11, 2013, Authentidate Holding Corp. (the “company”) entered into an underwriting agreement (the “Underwriting Agreement”) with J.P. Turner & Company, L.L.C., as the sole underwriter (the “Underwriter”) related to a public offering of 4,257,895 units at a price of $0.95 per unit (the “Offering”), with each unit consisting of one share of the company’s common stock, par value $0.001 per share (the “Common Stock”), and one warrant to purchase one share of Common Stock at an exercise price of $0.95 per share (the “Warrants”). The shares of Common Stock and the Warrants issued in the Offering will be issued separately and no units are being issued. Under the terms of the Underwriting Agreement, the company has also granted the Underwriters an option, exercisable for 45 days, to purchase up to an additional 425,790 shares of Common Stock and additional Warrants to purchase up to 425,790 shares of Common Stock (at the Offering price) to cover over-allotments, if any.

The net proceeds are expected to be approximately $3.6 million, after deducting the underwriting discounts and commissions and estimated expenses payable by the company, assuming no exercise of the Underwriters’ option to purchase additional units. The Offering is expected to close on June 17, 2013, subject to the satisfaction of customary closing conditions.

The Underwriting Agreement contains customary representations, warranties, and agreements by the company, and customary conditions to closing, indemnification obligations of the company and the Underwriters, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties, and termination provisions. Pursuant to the Underwriting Agreement, the company and each of its executive officers and directors, subject to certain exceptions, have agreed not to dispose of or hedge any of their shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for 90 days after the date of the prospectus without first obtaining the written consent of the Underwriter.

The Warrants will be exercisable immediately upon issuance and will expire on the five year anniversary of issuance. The number of shares issuable upon exercise of the Warrants and/or the exercise price of the Warrants will be adjustable in the event of stock splits, stock dividends, combinations of shares and similar recapitalization transactions. The Warrants are being issued pursuant to a Warrant Agreement to be entered into between the company and Continental Stock Transfer & Trust Company. The Warrants will not be listed on The NASDAQ Capital Market or any other securities exchange.

J.P. Turner & Company, L.L.C. is acting as the sole underwriter for the Offering. The Offering is being made pursuant to a prospectus supplement dated June 12, 2013, and the accompanying prospectus dated December 11, 2012, pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-183093) filed with the Securities and Exchange Commission, which was declared effective on December 11, 2012.

The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Underwriting Agreement.

A copy of the opinion of Becker & Poliakoff, LLP. relating to the legality of the issuance and sale of the Common Stock, Warrants and the Common Stock issuable upon exercise of the Warrants is attached as Exhibit 5.1 to this Current Report on Form 8-K. Copies of the Underwriting Agreement and the form of Warrant Agreement are filed herewith as Exhibits 1.1 and 4.1, respectively, and are incorporated herein by reference. The foregoing description of the Offering by the company and the documentation related thereto does not purport to be complete and is qualified in its entirety by reference to such Exhibits.

Preferred Stock Transaction

As of June 11, 2013, the company entered into a Securities Purchase Agreement (the “Purchase Agreement”), as supplemented on such date, with the investors party thereto (the “Investors”). Pursuant to the Purchase Agreement, we agreed to issue a total of 665,000 shares of Series D Preferred Stock, par value $0.10 per share (the “Series D Preferred Stock”) and warrants to purchase 6,650,000 shares of common stock (the “New Warrants”). The shares of Series D Preferred Stock and Warrants were sold as units, with each unit consisting of one share o f Series D Preferred Stock and ten warrants. Investors that held an aggregate principal amount of $6,500,000 of senior notes agreed to surrender their notes in consideration of the issuance of the shares of Series D Preferred Stock and New Warrants and other Investors purchased $150,000 of shares of Series D Preferred Stock and New Warrants. Accordingly, at closing, the company will receive an aggregate of $6,650,000 in cancellation of indebtedness and additional funds. After the closing, an aggregate principal amount of $850,000 of senior notes will remain outstanding. These senior notes will continue to be due and payable on October 31, 2013. The closing is anticipated to occur on June 17, 2013. The company will use the net proceeds from the transaction for general business and working capital purposes.

The shares of Series D Preferred Stock will be initially convertible into an aggregate of 6,125,024 shares of common stock at the initial conversion rate of $1.08571 per share, which was equal to 114% of the consolidated closing bid price of our common stock on June 11, 2013 ($0.95 per share), as reported on the NASDAQ Stock Market. The conversion price of the new preferred stock will be subject to adjustment solely in the event of stock dividends, combinations, splits, recapitalizations, and similar corporate events and does not provide for general price-based anti-dilution adjustments. On June 12, 2013, we filed with the State of Delaware a Certificate of Designations, Rights and Preferences and Number of Shares of Series D Convertible Preferred Stock, referred to as the Series D Designation. The Series D Designation defines the rights and preferences of the Series D Preferred Stock. Each share of Series D Preferred Stock will have a stated value of $10.00 per share and will have the following rights and preferences: (i) each holder of the Series D Preferred Stock will have the right, at any time after six months from the original issue date, to convert the shares of Series D Preferred Stock into shares of common stock; (ii) we will have the right to require the holders to convert shares of Series D Preferred Stock into shares of common stock commencing 36 months after the closing date; (iii) the Series D Preferred Stock will be redeemable at our option commencing two years after the closing date; and (iv) the Series D Preferred Stock will pay dividends at the rate of 5% per annum in cash or shares of our common stock, at our option. The right of holders of Series D Preferred Stock to convert these securities into Common Stock is subject to a 4.99% beneficial ownership limitation, which beneficial ownership limitation may be increased by a holder to a greater percentage not in excess of 19.99% after providing notice to us.

The New Warrants have an exercise price of $0.95 per share, which was equal to the closing consolidated bid price of our common stock on June 11, 2013, and are exercisable for a period of 54 months commencing on the six month anniversary of the closing date. The exercise price of the New Warrants is subject to adjustment in the case of stock splits, stock dividends, combinations of shares and similar recapitalization transactions. The New Warrants will also be exercisable on a “cashless exercise” basis in the event that the resale of the underlying shares of Common Stock is not covered by a registration statement declared effective by the SEC. The right of holders of New Warrants to exercise Warrants for Common Stock will be subject to a beneficial ownership limitation of 4.99%, which beneficial ownership limitation may be increased by a holder of New Warrants to a greater percentage not in excess of 19.99% after providing notice to us.

We also entered into a registration rights agreement with the holders of the Series D Preferred Stock and New Warrants, dated June 11, 2013, pursuant to which we granted the holders a right to require us to file a registration statement with the SEC covering the resale of the shares of Common Stock issuable under the Series D Preferred Stock and exercise of the New Warrants. We also agreed to grant piggyback registration rights to the purchasers of the Series D Preferred Stock and New Warrants.

In connection with the Preferred Stock Transaction, our chief executive officer, O’Connell Benjamin and a member of our board of directors, David Luce, agreed to grant a holder of senior notes an option to require them to purchase from him, commencing October 15, 2013, an aggregate of $350,000 of shares of Series D Preferred Stock and 350,000 New Warrants pursuant to the terms and conditions of a Put/Call Option Agreement. Under the Put/Call Option Agreement, if the holder declines to exercise its right to require the sale of these securities to Messrs. Luce and Benjamin, then they shall thereafter have a 30-day right to purchase all of such securities from the holder. Under this arrangement, each of Mr. Luce and Mr. Benjamin could acquire 50% of these additional securities.

In addition, in connection with the foregoing, we further amended our board nomination and observer agreement, or the Board Nomination Agreement, with Lazarus Investment Partners LLLP. Under this amendment, we again extended by 90 days, to September 19, 2013, the time period within which Lazarus Investment Partners must decide whether to nominate an individual for election to our board of directors.

An aggregate principal amount of $4,850,000 of the senior notes surrendered in the Preferred Stock Transaction were held by certain of our officers, directors and our largest stockholder, as follows: an entity affiliated with J. David Luce, a member of our board of directors, and his spouse, held an aggregate principal amount of $2,650,000 of senior notes, and O’Connell Benjamin, our chief executive officer and a member of our board of directors, and our chief financial officer, William Marshall, each held an aggregate principal amount of $100,000 of senior notes. The parties affiliated with Mr. Luce agreed to acquire $2,650,000 of shares of Series D Preferred Stock and 2,650,000 New Warrants and each of Mr. Benjamin and Mr. Marshall agreed to purchase $100,000 shares of Series D Preferred Stock and 100,000 New Warrants. Further, Lazarus Investment Partners LLLP, which is the beneficial owner of approximately 28.6% of our outstanding shares of common stock as of the date of this prospectus supplement, held an aggregate principal amount of $2,000,000 of senior notes. The manager of the general partner of Lazarus Investment Partners, LLLP, is the brother of Dr. Todd A. Borus, a member of our board of directors. We will issue to Lazarus Investment Partners a total of $2,000,000 of Series D Preferred Stock and 2,000,000 New Warrants. In addition, Dr. Todd A. Borus participated in the Preferred Stock Transaction as an investor and agreed to purchase $25,000 of shares of Series D Preferred Stock and 25,000 New Warrants.

A copy of the form of Purchase Agreement is attached hereto as Exhibit 10.1, a copy of the form of the supplement to the Purchase Agreement is attached hereto as Exhibit 10.2, a copy of the form of Registration Rights Agreement is attached as Exhibit 10.3, a copy of the Put/Call Option Agreement is attached as Exhibit 10.4 and a copy of the amendment to the Board Nomination Agreement is attached as Exhibit 10.5. Further, a copy of the Series D Designation is attached as Exhibit 3.1, a copy of the form of Series D Preferred Stock certificate is attached as Exhibit 4.2 and a copy of the form of New Warrant is attached as Exhibit 4.3.

The above descriptions of the Purchase Agreement, supplement to Purchase Agreement, the Registration Rights Agreement, the Put/Call Option Agreement and the Board Nomination Agreement are qualified in their entirety by reference to Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively and such agreements are incorporated herein by reference. In addition, the above descriptions of the Series D Designation and the New Warrants are qualified in their entirety by reference to Exhibits 3.1 and 4.3 respectively, and such instruments are incorporated herein by reference.

Item 3.01 Notice of Delisting or Failure to Satisfy Continued Listing Rule or Standard; Transfer of Listing.

As previously disclosed, on February 21, 2013, the company received a Staff deficiency letter from NASDAQ notifying it that the stockholders’ equity of $632,000 as reported in its Quarte r ly Report on Form 10-Q for the period ended December 31, 2012 was below the minimum stockholders’ equity of $2.5 million required for continued listing on NASDAQ pursuant to Listing Rule 5550(b)(1). The company was provided 45 calendar days, or until April 8, 2013, to submit a plan to regain compliance with the minimum stockholders’ equity standard. The company timely submitted such a plan and on April 26, 2013, NASDAQ granted it an extension until August 15, 2013 to achieve compliance with the minimum stockholders’ equity continued listing requirement.

Following the completion of (i) the automatic conversion of the company’s Series C Preferred Stock into shares of Common Stock in April 2013, (ii) the reclassification of the Series B Preferred Stock at that time from temporary equity to equity, and (iii) the completion of the above-described Preferred Stock Transaction resulting in the cancellation of $6,500,000 of senior indebtedness and issuance of 665,000 shares of Series D Preferred Stock and 6,650,000 Warrants, along with the completion of the public offering of the company’s securities for gross proceeds of $4,045,000, the company believes it has regained compliance with the stockholders’ equity requirement under NASDAQ Rule 5550(b)(1). The company notes that NASDAQ will continue to monitor its ongoing compliance with such stockholders’ equity requirement. If, at the time the company files its Annual Report on Form 10-K for the fiscal year ending June 30, 2013, the company is no longer in compliance with NASDAQ Rule 5550(b)(1), it may be subject to delisting from the NASDAQ Capital Market.

Item 3.02 Unregistered Sales of Equity Securities.

The information disclosed in Item 1.01 of this Current Report on Form 8-K concerning the Preferred Stock Transaction is incorporated by reference into this Item 3.02. The sale and issuance of the shares of Series D Preferred Stock, the New Warrants and the issuance of shares of Common Stock upon conversion and exercise thereof have been determined to be exempt from registration under the Securities Act of 1933, in reliance on Section 4(2) thereof and/or Rule 506 of Regulation D promulgated thereunder as a transaction by an issuer not involving a public offering, in which the investors are accredited and have acquired the securities for investment purposes only and not with a view to or for sale in connection with any distribution thereof. Such securities may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. These securities have not been registered under the Securities Act and may not be resold absent registration under or an exemption from the Securities Act and applicable state securities laws. This disclosure does not constitute an offer to sell or the solicitation of an offer to buy any of the Company’s securities, nor will there be any sales of these securities by the Company in any state or jurisdiction in which the offer, solicitation or sale would be unlawful.

Item 3.03 Material Modification to Rights of Security Holders.

On June 12, 2013, we filed with the Series D Designation with the Secretary of State of the State of Delaware. The Series D Designation establishes the Series D Preferred Stock and defines the rights and preferences of the Series D Preferred Stock. Each share of Series D Preferred Stock has a stated value of $10.00 (the “Stated Value”). Each holder of shares of Series D Preferred Stock is entitled to receive dividends at the rate of 5% per annum of the Stated Value for each share of Series D Preferred Stock held by such holder, which dividends are payable in cash or in shares of Common Stock, at our option. The shares of Series D Preferred Stock are initially convertible into an aggregate of 6,125,024 shares of common stock at the initial conversion rate of $1.08571 per share. The conversion price of the Series D Preferred Stock will be subject to adjustment solely in the event of stock dividends, combinations, splits, recapitalizations, and similar events. The Series D Preferred Stock is convertible by a holder at its option commencing six months from the original issue date; further, the company has the right to require the holders to convert the shares of Series D Preferred Stock into shares of common stock commencing 36 months after the closing date. In addition, the Series D Preferred Stock is redeemable at our option commencing two years after the closing date and each share of Series D Preferred Stock is entitled to a liquidation preference equal to the Stated Value per share plus any accrued and unpaid dividends. The right of holders of Series D Preferred Stock to convert the these securities into common stock is subject to a 4.99% beneficial ownership limitation, which beneficial ownership limitation may be increased by a holder to a greater percentage not in excess of 19.99% after providing notice to us.

The Series D Designation provides that no dividends shall be declared or paid or set apart for payment on any securities that are junior to or on parity with the Series D Preferred Stock unless full dividends have been or contemporaneously are declared and paid for all dividends due on the Series D Preferred Stock. In addition, for so long as any shares of Series D Preferred Stock remain outstanding, the company may not without the consent of the holders of a majority of the shares of Series D Preferred Stock, among other things, (i) amend, alter or repeal any provisions of the Series D Preferred Stock or Certificate of Incorporation so as to materially adversely affect any of the preferences, rights, powers or privileges of the Series D Preferred Stock or the holders thereof, (ii) create, authorize or issue any other class or series of preferred stock on a parity with, or having greater or preferential rights than, the Series D Preferred Stock with respect to liquidation or dividends, (iii) directly or indirectly, redeem, repurchase or otherwise acquire for value, or set aside for payment or make available for a sinking fund for the purchase or redemption of, any stock ranking junior to on a parity with the Series D Preferred Stock, or (iv) enter into any agreement which would prohibit or restrict its right to pay dividends on the Series D Preferred Stock.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On June 12, 2013, the company filed the Series D Designation, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference. The Series D Designation establishes and designates the Series D Preferred Stock and the rights, preferences, privileges and restrictions thereof. The summary of the Series D Designation included in Item 3.03 of this Current Report on Form 8-K is also incorporated herein by reference.

Item 8.01

Other Events.

On June 12, 2013, the company issued a press release announcing that it had priced the public offering and that it entered into the Preferred Stock Transaction, as described in Item 1.01 of this Current Report on Form 8-K. The company’s press release is filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

The following exhibits are attached to this Form 8-K:


Exhibit No.		Description

1.1		Underwriting Agreement dated June 11, 2013 between Authentidate Holding Corp. and J.P. Turner & Company, L.L.C.

3.1		Certificate of Designations, Preferences and Rights and Number of Series D Convertible Preferred Stock

4.1		Form of Warrant Agreement between Authentidate Holding Corp. and Continental Stock Transfer Company, including form of certificate of warrants issuable to investors pursuant to Underwriting Agreement

4.2		Specimen of Series D Convertible Preferred Stock Certificate

4.3		Form of Warrant issuable to investors in Preferred Stock Transaction

5.1		Opinion of Becker & Poliakoff, LLP

10.1		Form of Securities Purchase Agreement in Preferred Stock Transaction

10.2		Form of Supplement to Securities Purchase Agreement

10.3		Form of Registration Rights Agreement

10.4		Form of Put/Call Option Agreement

10.5		Amendment No. 2 to Board Nomination and Observer Agreement

23.1		Consent of Becker & Poliakoff, LLP (contained in Exhibit 5.1).

99.1		Press Release of Authentidate Holding Corp.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

Date: June 12, 2013

EXHIBIT INDEX


Exhibit No.		Description

1.1		Underwriting Agreement dated June 11, 2013 between Authentidate Holding Corp. and J.P. Turner & Company, L.L.C.

3.1		Certificate of Designations, Preferences and Rights and Number of Series D Convertible Preferred Stock

4.1		Form of Warrant Agreement between Authentidate Holding Corp. and Continental Stock Transfer Company, including form of certificate of warrants issuable to investors pursuant to Underwriting Agreement

4.2		Specimen of Series D Convertible Preferred Stock Certificate

4.3		Form of Warrant issuable to investors in Preferred Stock Transaction

5.1		Opinion of Becker & Poliakoff, LLP

10.1		Form of Securities Purchase Agreement in Preferred Stock Transaction

10.2		Form of Supplement to Securities Purchase Agreement

10.3		Form of Registration Rights Agreement

10.4		Form of Put/Call Option Agreement

10.5		Amendment No. 2 to Board Nomination and Observer Agreement

23.1		Consent of Becker & Poliakoff, LLP (contained in Exhibit 5.1).

99.1		Press Release of Authentidate Holding Corp.

Exhibit 1.1

$ 4,045,000.25 of Units

AUTHENTIDATE HOLDING CORP.

Units Consisting of One Share of Common Stock and One Warrant to Purchase One Share

of Common Stock

UNDERWRITING AGREEMENT

Atlanta, Georgia

June 11, 2013

JP Turner & Company, L.L.C.

As Representative of the several Underwriters named on Schedule C attached hereto

One Buckhead Plaza

3060 Peachtree Road NW

Atlanta, GA 30305

Ladies and Gentlemen:

1. INTRODUCTION . Authentidate Holding Corp., a Delaware corporation (the “ Company ”), proposes to issue and sell to the several Underwriters listed in Schedule C hereto (the “ Underwriters ”), for whom JP Turner & Company, L.L.C. is acting as the representative (the “ Representative ”), pursuant to the terms and conditions of this Underwriting Agreement (this “ Agreement ”), an aggregate of 4,257,895 units, each unit consisting of one (1) share of authorized but unissued shares of common stock, $0.001 par value (the “ Common Stock ”), or 4,257,895 shares of Common Stock in the aggregate, and one (1) warrant to purchase one (1) share of Common Stock, or 4,257,895 warrants to purchase 4,257,895 shares of Common Stock in the aggregate (the “ Warrants ”), of the Company (each, a “ Firm Unit ” and collectively, the “ Firm Units ”).

The Company has granted to the Underwriters an option to purchase up to an additional 425,790 units (each, an “ Additional Unit ” and collectively, the “ Additional Units ”), with each Additional Unit consisting of one (1) share of Common Stock and one (1) warrant to purchase one (1) share of Common Stock. The Firm Units and the Additional Units are collectively referred to as the “ Units .” The Units, the shares of Common Stock underlying the Units, the Warrants and the shares of Common Stock underlying the Warrants are referred to herein collectively as the “ Securities .” The Securities are more fully described in the Registration Statement and Prospectus referred to below. The Warrants may be issued directly by the Company or may be issued pursuant to and shall have the rights and privileges set forth in a Warrant Agreement, dated on or before the Closing Date, between the Company and Continental Stock Transfer & Trust Company (the “ Warrant Agreement ”). The offering and sale of the Firm Units and the Additional Units, together, are herein referred to as the “ Offering. ”

The Underwriters may exercise their over-allotment purchase right in whole or from time to time in part by giving written notice not later than forty-five (45) days after the date of this

Agreement. Any exercise notice shall specify the number of Additional Units to be purchased by the Underwriters and the date on which such shares are to be purchased. If any Additional Units are to be purchased, the number of Additional Units to be purchased by each Underwriter shall be the number of Additional Units which bears the same ratio to the aggregate number of Additional Units being purchased as the number of Firm Units purchased by such Underwriter bears to the aggregate number of Firm Units purchased from the Company by the Underwriters, subject, however, to such adjustments to eliminate any fractional Units as the Representative in its discretion shall make. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Units nor later than five business days after the date of such notice. Additional Units may be purchased hereby solely for the purpose of covering over-allotments made in connection with the offering of the Firm Units. On each day, if any, that Additional Units is to be purchased (an “ Option Closing Date ”).

2. DELIVERY AND PAYMENT . On the basis of the representations, warranties and agreements of the Company herein contained, and subject to the terms and conditions set forth in this Agreement:

2.1 The Company agrees to issue and sell and the Underwriters, severally and not jointly, agree to purchase from the Company an aggregate of 4,257,895 Firm Units in the amounts set forth in Schedule C , annexed hereto at a purchase price of $.874 per Unit (the “ Purchase Price ”). The Company has been advised by you that you propose to make a public offering of the Units as soon after this Agreement has become effective as in your judgment is advisable. The Company is further advised by you that the Units are to be offered to the public initially at $.95 per Unit. The securities comprising the Units will be issued separately and will be separately transferable immediately; it being agreed that no Unit certificates shall be issued in the offering.

2.2 Payment of the Purchase Price for, and delivery of, the Firm Units shall be made at the time and date of closing and delivery of the documents required to be delivered to the Underwriters pursuant to Sections 4 and 6 hereof shall be at 10:00 a.m., New York time, on June 17, 2013 (the “ Closing Date ”) at the office of Sichenzia Ross Friedman Ference LLP, 61 Broadway, New York, NY 10006 or at such other time and date as the Representative and the Company determine pursuant to Rule 15c6-1(a) under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), the Company shall deliver the Common Stock and Warrants, which shall be registered in the name or names and shall be in such denominations as the Representative may request at least one (1) business day before the Closing Date, to the Representative, which delivery shall be made through the facilities of the Depository Trust Company’s DWAC system or Full Fast Delivery Program.

2.3 Payment of the Purchase Price for the Additional Units, and delivery of, any Common stock and Warrants underlying the Additional Units shall be made at the Option Closing Date or at such other time and date as the Representative and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, the Company shall deliver the Additional Units, which shall be registered in the name or names and shall be in such denominations as the Underwriters may request at least one (1) business day before the Option Closing Date, to the Underwriters, which delivery shall be made

- 2 -

through the facilities of the Depository Trust Company’s DWAC system or Full Fast Delivery Program. The price for each Additional Unit will be the Purchase Price per Firm Unit as set forth in Section 2.1 hereof. The Option Closing Date may be simultaneous with, but not earlier than, the Closing Date; and in the event that such time and date are simultaneous with the Closing Date, the term “ Closing Date ” shall refer to the time and date of delivery of the Firm Units and Additional Units.

2.4 No Units which the Company has agreed to sell pursuant to this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Units shall have been delivered to the Underwriters thereof against payment by each of the Underwriters.

3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . The Company represents and warrants to, and agrees with, each of the Underwriters that:

3.1

(a) The Company has prepared and filed in conformity with the requirements of the Securities Act of 1933, as amended (the “ Securities Act ”), and the rules and regulations thereunder (the “ Rules and Regulations ”) adopted by the Securities and Exchange Commission (the “ Commission ”), a “ shelf ” Registration Statement (as hereinafter defined) on Form S-3 (File No. 333-183093) which became effective as of December 11, 2012 (the “ Effective Date ”), including a base prospectus relating to the Units (the “ Base Prospectus ”), and such amendments and supplements thereto as may have been required to the date of this Agreement. The term “ Registration Statement ” as used in this Agreement means the registration statement (including all exhibits, financial schedules and all documents and information deemed to be a part of the Registration Statement pursuant to Rule 430A of the Rules and Regulations), as amended and/or supplemented to the date of this Agreement, including the Base Prospectus. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement any post-effective amendment thereto or suspending or preventing the use of the Prospectus (defined below) has been issued by the Commission and no proceedings for that purpose have been instituted or are threatened by the Commission. The Company, if required by the Rules and Regulations of the Commission, will file the Prospectus (as defined below), with the Commission pursuant to Rule 424(b) of the Rules and Regulations. The term “ Prospectus ” as used in this Agreement means the Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, or, if the Prospectus is not to be filed with the Commission pursuant to Rule 424(b), the Prospectus in the form included as part of the Registration Statement as of the Effective Date, except that if any revised prospectus or prospectus supplement shall be provided to the Underwriter by the Company for use in connection with the offering and sale of the Units which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “ Prospectus ” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters for such use (or in the form first made available to the Underwriters

- 3 -

by the Company to meet requests of prospective purchasers pursuant to Rule 173 under the Securities Act). Any preliminary prospectus or prospectus subject to completion included in the Registration Statement or filed with the Commission pursuant to Rule 424 of the Rules and Regulations is hereafter called a “ Preliminary Prospectus. ” Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), on or before the last to occur of the Effective Date, the date of the Preliminary Prospectus, or the date of the Prospectus, and any reference herein to the terms “ amend, ” “ amendment, ” or “ supplement ” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the Effective Date, the date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, which is incorporated by reference and (ii) any such document so filed. If the Company has filed an abbreviated registration statement to register additional securities pursuant to Rule 462(b) under the Rules and Regulations (the “ 462(b) Registration Statement ”), then any reference herein to the Registration Statement shall also be deemed to include such 462(b) Registration Statement.

(b) As of the Applicable Time (as defined below) and as of the Closing Date and any Option Closing Date, neither (i) any General Use Free Writing Prospectus (as defined below) issued at or prior to the Applicable Time, and the Pricing Prospectus (as defined below) and the information included on Schedule A hereto, all considered together (collectively, the “ General Disclosure Package ”), (ii) nor (ii) the bona fide electronic road show (as defined in Rule 433(h)(5) of the Rules and Regulations), if any, that has been made available without restriction to any person, when considered together with the General Disclosure Package included or will not include, any untrue statement of a material fact or omitted, as of the Closing Date and any Option Closing Date, will not omit, to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from any Issuer Free Writing Prospectus or Pricing Prospectus in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’ Information (as defined in Section 17). As used in this paragraph (b) and elsewhere in this Agreement:

“ Applicable Time ” means 8:00 A.M., New York time, on the date of this Agreement.

“ General Use Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is identified on Schedule A to this Agreement.

“ Issuer Free Writing Prospectus ” means any “ issuer free writing prospectus, ” as defined in Rule 433 of the Rules and Regulations relating to the Units in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) of the Rules and Regulations.

- 4 -

“ Limited Use Free Writing Prospectuses ” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.

“ Pricing Prospectus ” means the Preliminary Prospectus, if any, and the Base Prospectus, each as amended and supplemented immediately prior to the Applicable Time, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof.

(c) No order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the Offering has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted or threatened by the Commission, and each Preliminary Prospectus, if any, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Rules and Regulations, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company makes no representations or warranties as to information contained in or omitted from any Preliminary Prospectus, in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’ Information (as defined in Section 17 ).

(d) At the time the Registration Statement became or becomes effective, at the date of this Agreement and at the Closing Date and any Option Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date and any Option Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the foregoing representations and warranties in this paragraph (d) shall not apply to information contained in or omitted from the Registration Statement or the Prospectus or any amendment or supplement thereto in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’ Information (as defined in Section 17 ).

(e) The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the Offering other than any Preliminary Prospectus, the Prospectus and other materials, if any, permitted under the Securities Act and consistent with Section 4(b) below. The Company is not an

- 5 -

“ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. The Company will file with the Commission all Issuer Free Writing Prospectuses (other than a “road show,” as defined in Rule 433(d)(8) of the Rules and Regulations), if any, in the time and manner required under Rules 163(b)(2) and 433(d) of the Rules and Regulations.

(f) The Company and each Subsidiary (as defined below) has been duly organized and is validly existing as a corporation or other entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of organization. The Company and each Subsidiary is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification and has all power and authority necessary to own or hold its properties and to conduct the business in which it is engaged, except where the failure to so qualify or have such power or authority (i) would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, assets or business or prospects of the Company or any Subsidiary, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under this Agreement or to consummate any transactions contemplated by this Agreement, the General Disclosure Package or the Prospectus (any such effect as described in clauses (i) or (ii), a “ Material Adverse Effect ”). The Company owns or controls, directly or indirectly, the corporations, partnerships, limited liability partnerships, limited liability companies, associations or other entities described in the Registration Statement (each a “ Subsidiary ”).

(g) The Company has the full right, power and authority to enter into this Agreement and the Warrant Agreement, and to perform and to discharge its obligations hereunder and thereunder; and this Agreement, the Warrant Agreement and the Warrants have been duly authorized, executed and delivered by the Company, and constitute the valid and binding obligations of the Company enforceable in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. All corporate action required to be taken for the authorization, issuance and sale of the Warrants have been duly and validly taken.

(h) The Firm Units and Additional Units to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and non-assessable and will conform to the description thereof contained in the General Disclosure Package and the Prospectus.

(i) The Company has an authorized capitalization as set forth in the Pricing Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, have been issued in

- 6 -

compliance with federal and state securities laws, and conform to the description thereof contained in the General Disclosure Package and the Prospectus. As of June 7, 2013, there were (i) 30,655,285 shares of Common Stock issued and outstanding, (ii) 28,000 shares of Preferred Stock, par value $0.10 per share of the Company, all of which are designated as Series B Convertible Preferred Stock, issued and outstanding, (iii) 2,727,178 shares of Common Stock were issuable upon the exercise of all options and 13,631,953 shares of Common Stock were issuable upon the exercise of warrants outstanding as of such date, (iv) 250,000 shares of Common Stock were issuable upon the conversion of all outstanding convertible securities outstanding as of such date, and (v) 577,677 shares of Common Stock were issuable upon the vesting of restricted stock units outstanding as of such date. Other than in connection with the private placement of preferred stock and common stock warrants in a private placement transaction as described in the General Disclosure Package, since such date, the Company has not issued any securities, other than Common Stock of the Company issued pursuant to the exercise of stock options previously outstanding under the Company’s stock option or equity compensation plans or the issuance of restricted Common Stock pursuant to employee stock purchase plans. All of the Company’s issued and outstanding options, warrants and other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly authorized and validly issued and were issued in compliance with federal and state securities laws. The Units to be issued and sold by the Company under this Agreement have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement will have been validly issued and will be fully paid and nonassessable and will conform to the description thereof in the General Disclosure Package and the Prospectus and will be free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights, other than as described in the General Disclosure Package and the Prospectus. The shares of Common Stock underlying the Units have been duly and validly authorized and, when issued, delivered and paid for in accordance with this Agreement on the Closing Date, will be duly and validly issued, fully paid and non-assessable, will have been issued in compliance with all applicable state and federal securities laws and will not have been issued in violation of or subject to any preemptive or similar right that does or will entitle any person to acquire any security from the Company upon issuance or sale of the Units in the Offering. The shares of Common Stock underlying the Warrants have been duly authorized for issuance, will conform to the description thereof in the Registration Statement and in the Prospectus and have been validly reserved for future issuance and will, upon exercise of the Warrants and payment of the exercise price thereof, be duly and validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to preemptive or similar rights to subscribe for or purchase securities of the Company. The issuance of such securities is not subject to any statutory preemptive rights under the laws of the Company’s jurisdiction or the Company’s organization documents as in effect at the time of issuance, rights of first refusal or other similar rights of any securityholder of the Company (except for such preemptive or contractual rights as were waived). None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding shares of capital stock, options, warrants, preemptive rights, rights of first

- 7 -

refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other than those described above or accurately described in the Registration Statement or General Disclosure Package. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the General Disclosure Package and the Prospectus, accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rights.

(j) All the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, except to the extent set forth in the General Disclosure Package or the Prospectus, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.

(k) The execution, delivery and performance of this Agreement, the Warrant Agreement and the Warrants by the Company, the issue and sale of the Units by the Company and the consummation of the transactions contemplated hereby and thereby (i) will not (with or without notice or lapse of time or both) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under, give rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company or any Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the property or assets of the Company or any Subsidiary is subject, nor (ii) will such actions result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary or (iii) any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their properties or assets, except in the case of clauses (i) and (iii) of this paragraph, for such breaches, violations or defaults that would not individually or in the aggregate have a Material Adverse Effect.

(l) Except for the registration of the Units, the Common Stock and the Warrants under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws, the Financial Industry Regulatory Authority (“ FINRA ”) and the Nasdaq Capital Market (“ Nasdaq CM ”) in connection with the offering and sale of the Units by the Company, no consent, approval, authorization or order of, or filing, qualification or registration with, any court or governmental agency or body, foreign or domestic, which has not been made, obtained or taken and is not in full force and effect, is required for the execution, delivery and performance of this Agreement by the Company, the offer or sale of the Units or the consummation of the transactions contemplated hereby or thereby.

- 8 -

(m) EisnerAmper LLP, who have provided an audit opinion concerning the Company’s financial statements and schedules, if any, for the periods set forth in the General Disclosure Package and the Prospectus in such report and included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, have audited the Company’s financial statements and is an independent registered public accounting firm as required by the Securities Act and the Rules and Regulations and the Public Company Accounting Oversight Board (United States) (the “ PCAOB ”). Except as disclosed in the Registration Statement and as pre-approved in accordance with the requirements set forth in Section 10A of the Exchange Act, EisnerAmper LLP have not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).

(n) The financial statements, together with the related notes and schedules, included or incorporated by reference in the General Disclosure Package, the Prospectus and in each Registration Statement fairly present the financial position and the results of operations and changes in financial position of the Company and its consolidated subsidiaries at the respective dates or for the respective periods therein specified. Such statements and related notes and schedules have been prepared in accordance with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis throughout the periods involved except as may be set forth in the related notes included or incorporated by reference in the General Disclosure Package. The financial statements, together with the related notes and schedules, included or incorporated by reference in the General Disclosure Package and the Prospectus comply in all material respects with the Securities Act, the Exchange Act, and the Rules and Regulations and the rules and regulations under the Exchange Act. No other financial statements or supporting schedules or exhibits are required by the Securities Act or the Rules and Regulations to be described, or included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus. There is no pro forma or as adjusted financial information which is required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package, or and the Prospectus in accordance with the Securities Act and the Rules and Regulations which has not been included or incorporated as so required. The pro forma and pro forma as adjusted financial information and the related notes, if any, included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and the Rules and Regulations and present fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.

(o) Neither the Company nor any Subsidiary has sustained, since the date of the latest audited financial statements included or incorporated by reference in the General Disclosure Package, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the General Disclosure Package; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any Subsidiary,

- 9 -

or any material adverse changes, or any development involving a prospective material adverse change, in or affecting the business, assets, general affairs, management, financial position, prospects, stockholders’ equity or results of operations of the Company or any Subsidiary otherwise than as set forth or contemplated in the General Disclosure Package.

(p) Except as set forth in the General Disclosure Package or the Prospectus, there is no legal or governmental action, suit, claim or proceeding pending to which the Company or any Subsidiary is a party or of which any property or assets of the Company any Subsidiary is the subject which is required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or a document incorporated by reference therein and is not described therein, or which, singularly or in the aggregate, if determined adversely to the Company or any Subsidiary, could have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby; and to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.

(q) Neither the Company nor any Subsidiary is in (i) violation of its charter or by-laws, (ii) default in any respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject or (iii) violation in any respect of any law, ordinance, governmental rule, regulation or court order, decree or judgment to which it or its property or assets may be subject except, in the case of clauses (ii) and (iii) of this paragraph (q), for any violations or defaults which, singularly or in the aggregate, would not have a Material Adverse Effect.

(r) The Company and each Subsidiary possesses all licenses, certificates, authorizations and permits issued by, and have made all declarations and filings with, the appropriate local, state, federal or foreign regulatory agencies or bodies which are necessary or desirable for the ownership of its properties or the conduct of its businesses as described in the General Disclosure Package and the Prospectus (collectively, the “ Governmental Permits ”) except where any failures to possess or make the same, singularly or in the aggregate, would not have a Material Adverse Effect. The Company and each Subsidiary is in compliance with all such Governmental Permits; all such Governmental Permits are valid and in full force and effect, except where the validity or failure to be in full force and effect would not, singularly or in the aggregate, have a Material Adverse Effect. All such Governmental Permits are free and clear of any restriction or condition that are in addition to, or materially different from those normally applicable to similar licenses, certificates, authorizations and permits. Neither the Company nor any Subsidiary has received notification of any revocation or modification (or proceedings related thereto) of any such Governmental Permit and the Company has no reason to believe that any such Governmental Permit will not be renewed.

(s) Neither the Company nor any Subsidiary is or, after giving effect to the offering of the Units and the application of the proceeds thereof as described in the

- 10 -

General Disclosure Package and the Prospectus, will become an “ investment company ” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.

(t) Neither the Company, nor any Subsidiary nor, to the Company’s knowledge, any of the Company’s or any Subsidiary’s officers, directors or Affiliates has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.

(u) The Company and each Subsidiary owns or possesses the right to use all patents, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights, licenses, inventions, software, databases, know-how, Internet domain names, trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures, and other intellectual property (collectively, “ Intellectual Property ”) necessary to carry their respective businesses as currently conducted, and as proposed to be conducted and described in the General Disclosure Package and the Prospectus, and the Company is not aware of any claim to the contrary or any challenge by any other person to the rights of the Company or any Subsidiary with respect to the foregoing except for those in the General Disclosure Package and the Prospectus or those that could not have a Material Adverse Effect. The Intellectual Property licenses described in the General Disclosure Package and the Prospectus are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company and each Subsidiary has complied in all material respects with, and is not in breach nor has received any asserted or threatened claim of breach of, any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other person to any Intellectual Property license. Except as described in the General Disclosure Package and the Prospectus, to the Company’s knowledge, the Company and each Subsidiary’s business as now conducted and as proposed to be conducted does not and will not infringe or conflict with any patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses or other Intellectual Property or franchise right of any person. Except as described in the General Disclosure Package and the Prospectus, no claim has been made against the Company or any Subsidiary alleging the infringement by the Company or any Subsidiary of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other intellectual property right or franchise right of any person. The Company and each Subsidiary has taken all reasonable steps to protect, maintain and safeguard its rights in all Intellectual Property, including the execution of appropriate nondisclosure and confidentiality agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company or any Subsidiary’s right to own, use, or hold for use any of the Intellectual Property as owned, used or held for use in the conduct of the businesses as currently conducted. With respect to the use of the software in the Company or any Subsidiary’s business as it is currently conducted, neither the Company nor any Subsidiary has experienced any material defects in such software including any material error or

- 11 -

omission in the processing of any transactions other than defects which have been corrected. The Company and each Subsidiary has at all times complied with all applicable laws relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by the Company and any Subsidiary in the conduct of the Company and its Subsidiary’s business. No claims have been asserted or threatened against the Company or any Subsidiary alleging a violation of any person’s privacy or personal information or data rights and the consummation of the transactions contemplated hereby will not breach or otherwise cause any violation of any law related to privacy, data protection, or the collection and use of personal information collected, used, or held for use by the Company or any Subsidiary in the conduct of the Company’s or any Subsidiary’s business. The Company and each Subsidiary takes reasonable measures to ensure that such information is protected against unauthorized access, use, modification, or other misuse, except for those that would not have a Material Adverse Event.

(v) The Company and each Subsidiary has good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real or personal property which are material to the business of the Company and any Subsidiary in each case free and clear of all liens, encumbrances, security interests, claims and defects that do not, singularly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any Subsidiary; and all of the leases and subleases material to the business of the Company and any Subsidiary, and under which the Company or any Subsidiary holds properties described in the General Disclosure Package and the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.

(w) No labor disturbance by the employees of the Company or any Subsidiary exists or, to the best of the Company’s knowledge, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary’s principal suppliers, manufacturers, customers or contractors, that could reasonably be expected, singularly or in the aggregate, to have a Material Adverse Effect. The Company is not aware that any key employee or significant group of employees of the Company or any Subsidiary plans to terminate employment with the Company or any Subsidiary.

(x) No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ ERISA ”), or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the “ Code ”)) or “ accumulated funding deficiency ” (as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than events with respect to which the thirty (30)-day notice requirement under Section 4043 of ERISA has been waived) has occurred or could reasonably be expected to occur with respect to any employee benefit plan of the

- 12 -

Company or any Subsidiary which could, singularly or in the aggregate, have a Material Adverse Effect. Each employee benefit plan of the Company or any Subsidiary is in compliance in all material respects with applicable law, including ERISA and the Code. The Company and each Subsidiary has not incurred and could not reasonably be expected to incur liability under Title IV of ERISA with respect to the termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for which the Company and each Subsidiary would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred, whether by action or by failure to act, which could, singularly or in the aggregate, cause the loss of such qualification.

(y) The Company and each Subsidiary is in compliance with all foreign, federal, state and local rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health and safety or the environment which are applicable to its businesses (“ Environmental Laws ”), except where the failure to comply would not, singularly or in the aggregate, have a Material Adverse Effect. There has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company or any Subsidiary is or may otherwise be liable) upon any of the property now or previously owned or leased by the Company or any Subsidiary, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any liability, except for any violation or liability which would not have, singularly or in the aggregate with all such violations and liabilities, a Material Adverse Effect; and there has been no disposal, discharge, emission or other release of any kind onto such property or into the environment surrounding such property of any toxic or other wastes or other hazardous substances with respect to which the Company has knowledge, except for any such disposal, discharge, emission, or other release of any kind which would not have, singularly or in the aggregate with all such discharges and other releases, a Material Adverse Effect.

(z) The Company and each Subsidiary (i) has timely filed all necessary federal, state, local and foreign tax returns, and all such returns were true, complete and correct, (ii) has paid all federal, state, local and foreign taxes, assessments, governmental or other charges due and payable for which it is liable, including, without limitation, all sales and use taxes and all taxes which the Company or any Subsidiary is obligated to withhold from amounts owing to employees, creditors and third parties, and (iii) does not have any tax deficiency or claims outstanding or assessed or, to the best of its knowledge, proposed against any of them, except those, in each of the cases described in clauses (i), (ii) and (iii) of this paragraph (z) , that would not, singularly or in the aggregate, have a Material Adverse Effect. The Company and each Subsidiary, has not engaged in any transaction which is a corporate tax shelter or which could be characterized as such by the Internal Revenue Service or any other taxing authority. The accruals and reserves on the books and records of the Company and each Subsidiary in respect of tax liabilities for

- 13 -

any taxable period not yet finally determined are adequate to meet any assessments and related liabilities for any such period, and since inception the Company and each Subsidiary has not incurred any liability for taxes other than in the ordinary course.

(aa) The Company and each Subsidiary carries, or is covered by, insurance provided by recognized, financially sound and reputable institutions with policies in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries. The Company has no reason to believe that it or any Subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect.

(bb) The Company and each Subsidiary maintains a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the General Disclosure Package, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

(cc) The minute books of the Company and each Subsidiary have been made available to the Underwriters and counsel for the Underwriters, and such books (i) contain a complete summary of all meetings and actions of the board of directors (including each board committee) and stockholders of the Company and each Subsidiary since the time of its respective incorporation or organization through the date of the latest meeting and action, and (ii) accurately in all material respects reflect all transactions referred to in such minutes.

(dd) There is no franchise, lease, contract, agreement or document required by the Securities Act or by the Rules and Regulations to be described in the General Disclosure Package and in the Prospectus or a document incorporated by reference therein or to be filed as an exhibit to the Registration Statement or a document incorporated by reference therein which is not described or filed therein as required; and all descriptions of any such franchises, leases, contracts, agreements or documents contained in the Registration Statement or in a document incorporated by reference therein are accurate and complete descriptions of such documents in all material respects. Other than as described in the General Disclosure Package, no such franchise, lease, contract or agreement has been suspended or terminated for convenience or default by the

- 14 -

Company or any Subsidiary or any of the other parties thereto, and neither the Company nor any Subsidiary has received notice nor does the Company have any other knowledge of any such pending or threatened suspension or termination, except for such pending or threatened suspensions or terminations that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect.

(ee) No relationship, direct or indirect, exists between or among the Company and any Subsidiary on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any Subsidiary or any of their affiliates on the other hand, which is required to be described in the General Disclosure Package and the Prospectus or a document incorporated by reference therein and which is not so described.

(ff) Except as disclosed in the General Disclosure Package and in the Prospectus, no person or entity has the right to require registration of shares of Common Stock or other securities of the Company or any Subsidiary because of the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right in writing or who have been given timely and proper written notice and have failed to exercise such right within the time or times required under the terms and conditions of such right. Except as described in the Registration Statement and the Prospectus (specifically with respect to rights granted to the holders of the Company’s previously issued common stock purchase warrants and the Preferred Stock Transaction), there are no persons with registration rights or similar rights to have any securities registered by the Company or any Subsidiary under the Securities Act.

(gg) Neither the Company nor any Subsidiary owns any “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “ Federal Reserve Board ”), and none of the proceeds of the sale of the Units will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Units to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.

(hh) Neither the Company nor any Subsidiary is a party to any contract, agreement or understanding with any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission or finder’s fee in connection with the offering and sale of the Units or any transaction contemplated by this Agreement, the Registration Statement, the General Disclosure Package or the Prospectus.

(ii) No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in either the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

- 15 -

(jj) Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”); and the Company will not directly or indirectly use the proceeds of the offering of the Units contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

(kk) The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act and is currently eligible to use Form S-3 pursuant to General Instruction I.B.1. of Form S-3. The Common Stock is registered pursuant to Section 12(b) or 12(g), as the case may be, of the Exchange Act and the Common Stock has been approved for listing on the Nasdaq CM, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq CM, nor has the Company received any notification that the Commission or FINRA is contemplating terminating such registration or listing.

(ll) The Company is in compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “ Sarbanes-Oxley Act ”) that are then in effect and is actively taking steps to ensure that it will be in compliance with other applicable provisions of the Sarbanes-Oxley Act not currently in effect upon it and at all times after the effectiveness of such provisions.

(mm) Except as disclosed in the General Disclosure Package and in the Prospectus the Company is in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are then in effect and is actively taking steps to ensure that it will be in compliance with other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect upon and all times after the effectiveness of such requirements.

(nn) There are no transactions, arrangements or other relationships between and/or among the Company or any Subsidiary, any of their affiliates (as such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited to, any structure finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company or any Subsidiary’s liquidity or the availability of or requirements for its capital resources required to be described in the General Disclosure Package and the Prospectus or a document incorporated by reference therein which have not been described as required.

(oo) There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company or any Subsidiary to or for the benefit of any of the officers or directors of the Company, any Subsidiary or any of their respective family members, except as

- 16 -

disclosed in the Registration Statement, the General Disclosure Package and the Prospectus. All transactions by the Company with office holders or control persons of the Company have been duly approved by the board of directors of the Company, or duly appointed committees or officers thereof.

(pp) The statistical and market related data included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and such data agree with the sources from which they are derived.

(qq) Except as set forth in the questionnaires provided to the Underwriter, neither the Company nor any Subsidiary nor any of their affiliates (within the meaning of FINRA’s Conduct Rule 5121(f)(1)) directly or indirectly controls, is controlled by, or is under common control with, or is an associated person (within the meaning of Article I, Section 1(ee) of the By-laws of FINRA) of, any member firm of FINRA.

(rr) Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Company and, to the knowledge of the Company, its affiliates have instituted and maintain policies and procedures reasonably designed to ensure continued compliance therewith.

(ss) The operations of the Company are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator or non-governmental authority involving the Company with respect to the Money Laundering Laws is pending or, to the Company’s knowledge, threatened.

(tt) The Company has filed in a timely manner all reports required to be filed pursuant to Sections 13(a), 13(e), 14 and 15(d) of the Exchange Act during the preceding 12 months (except to the extent that Section 15(d) requires reports to be filed pursuant to Sections 13(d) and 13(g) of the Exchange Act, which shall be governed by the next clause of this sentence); and the Company has filed in a timely manner all reports required to be filed pursuant to Section 13(g) of the Exchange Act since June 1, 2012, except where the failure to timely file could not reasonably be expected individually or in the aggregate to have a Material Adverse Effect.

(uu) Based upon guidance issued by the SEC as expressed in Release No. 33-8828 dated August 3, 2007,, neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any

- 17 -

security or solicited any offers to buy any security, under circumstances that would cause the Offering of the Units to be integrated with prior offerings by the Company for purposes of the Securities Act which would require the registration of any such securities under the Securities Act.

Any certificate signed by or on behalf of the Company and delivered to any Underwriter or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to the Underwriters as to the matters covered thereby.

4. FURTHER AGREEMENTS OF THE COMPANY . The Company agrees with the Underwriters:

4.1

(a) To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative and file such Rule 462(b) Registration Statement with the Commission on the date hereof; to prepare the Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on 430A, 430B and 430C of the Rules and Regulations and to file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the second (2nd) business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A of the Rules and Regulations; to notify the Representative immediately of the Company’s intention to file or prepare any supplement or amendment to any Registration Statement or to the Prospectus and to make no amendment or supplement to the Registration Statement, the General Disclosure Package or to the Prospectus to which the Representative shall reasonably object by notice to the Company after a reasonable period to review; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to any Registration Statement has been filed or becomes effective or any supplement to the General Disclosure Package or the Prospectus or any amended Prospectus has been filed and to furnish the Representative copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to 433(d) or 163(b)(2), as the case may be, of the Rules and Regulations; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required in connection with the offering or sale of the Units; to advise the Representative promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the General Disclosure Package or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending any such qualification, and promptly to use its best efforts to obtain the withdrawal of such order.

- 18 -

(b) The Company represents and agrees that it has not made and will not, make any offer relating to the Units that would constitute a “ free writing prospectus ” as defined in Rule 405 of the Rules and Regulations unless the prior written consent of the Representative has been received (each, a “ Permitted Free Writing Prospectus ”); provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus[es], if any, included in Schedule A hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and will not take any action that would result in any Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) of the Rules and Regulations a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.

(c) If at any time when a Prospectus relating to the Units is required to be delivered under the Securities Act, any event occurs or condition exists as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary at any time to amend or supplement any Registration Statement or the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative, and upon the Representative’s or its counsel’s request, the Company will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as such Underwriter may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters.

(d) If the General Disclosure Package is being used to solicit offers to buy Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Representative, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained or incorporated by reference in the Registration Statement then on file and not superseded or modified, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the

- 19 -

Commission (if required) and furnish to the Representative and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law.

(e) If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or will conflict with the information contained in the Registration Statement, Pricing Prospectus or Prospectus, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof and not superseded or modified or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company has promptly notified or will promptly notify the Representative so that any use of the Issuer Free Writing Prospectus may cease until it is amended or supplemented and has promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s Information (as defined in Section 17 ).

(f) To furnish promptly to the Representative and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and of each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.

(g) To deliver promptly to the Representative in Atlanta, Georgia such number of the following documents as the Representative shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission (in each case excluding exhibits), (ii) each Preliminary Prospectus, (iii) any Issuer Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents referred to in clauses (i), (ii), (iii) and (iv) of this paragraph (g) to be made not later than 10:00 A.M., New York time, on the business day following the execution and delivery of this Agreement), (v) conformed copies of any amendment to the Registration Statement (excluding exhibits), (vi) any amendment or supplement to the General Disclosure Package or the Prospectus (the delivery of the documents referred to in clauses (v) and (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement) and (vii) any document incorporated by reference in the General Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery of the documents referred to in clause (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the business day following the date of such document)

- 20 -

(h) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen (18) months after the effective date of each Registration Statement (as defined in Rule 158(c) of the Rules and Regulations), an earnings statement of the Company and any Subsidiary (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158); and to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and as soon as possible after each of the first three fiscal quarters of each fiscal year (beginning with the first fiscal quarter after the effective date of such Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail.

(i) To take promptly from time to time such actions as the Representative may reasonably request to qualify the Units for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representative may designate and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit the offer and sale of Units in such jurisdictions; provided that the Company shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction.

(j) Upon request, during the period of two (2) years from the date hereof, to the extent not available on the Commission’s EDGAR system, to deliver to the Underwriters, (i) as soon as they are available, copies of all reports or other communications furnished to stockholders, and (ii) as soon as they are available, copies of any reports and financial statements furnished or filed with the Commission or any national securities exchange or automatic quotation system on which the Company’s securities are listed or quoted.

(k) That the Company will not, for a period of ninety (90) days from the date of the Prospectus, (the “ Lock-Up Period ”) without the prior written consent of the Representative, directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, other than (i) the Company’s sale of the Units, (ii) the issuance of restricted Common Stock, restricted stock units, or options to acquire Common Stock pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity compensation plans as such plans are in existence on the date hereof and described in the Prospectus, (iii) the issuance of Common Stock pursuant to the valid exercises of options, warrants or rights or upon the conversion of shares of preferred stock outstanding on the date hereof, (iv) the issuance by the Company of any shares of Common Stock or securities convertible or exchangeable into shares of Common Stock as consideration for mergers, acquisitions, other business

- 21 -

combinations, or strategic alliances, occurring after the date of this Agreement, (v) the purchase or sale of the Company’s securities pursuant to a plan, contract or instruction that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) that was in effect prior to the date hereof or (vi) the issuance of securities in connection with the Preferred Stock Transaction as described in the Prospectus. The Company will cause each executive officer and director listed in Schedule B hereto to furnish to the Representative, prior to the Closing Date, a letter, substantially in the form of Exhibit A hereto. The Company hereby agrees that (i) if it issues an earnings release or material news, or if a material event relating to the Company occurs, during the last seventeen (17) days of the Lock-Up Period, or (ii) if prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16)-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this paragraph (k) or the letter shall continue to apply until the expiration of the eighteen (18)-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.

(l) To supply the Representative with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act or the Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto or document incorporated by reference therein.

(m) Prior to the Closing Date and any Option Closing Date, to furnish to the Underwriters, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.

(n) Prior to the Closing Date and any Option Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative, unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law.

(o) Until the completion of the Offering, the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Units, or attempt to induce any person to purchase any Units; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Units.

- 22 -

(p) Not to take any action prior to the Closing Date and any Option Closing Date which would require the Prospectus to be amended or supplemented pursuant to Section 4(a).

(q) To at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.

(r) To apply the net proceeds from the sale of the Units as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “ Use of Proceeds. ”

(s) To use its best efforts to list, subject to notice of issuance, and maintain the listing and quotation of the Common Stock on the Nasdaq CM.

(t) To use its reasonable best efforts to assist the Underwriters with any filings with FINRA and obtaining clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters.

(u) To use its best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date and any Option Closing Date and to satisfy all conditions precedent to the delivery of the Firm Units and any Additional Units.

5. PAYMENT OF EXPENSES . The Company agrees to pay, or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated: (a) all filing fees and communication expenses relating to the registration of the Securities to be sold in the Offering (including the Additional Units if any) with the Commission; (b) all COBRADesk filing fees associated with the review of the terms of the Offering, by FINRA and any filings made with FINRA; all fees and expenses relating to the listing of the Common Stock on The Nasdaq Capital Market; (c) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Units under the securities laws of such foreign jurisdictions as the Representative may reasonably designate; (d) the costs of all mailing and printing of the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative may reasonably deem necessary; (e) the costs of preparing, printing and delivering certificates representing the Common Stock and the Warrants; (f) fees and expenses of the transfer agent for the the Common Stock and the Warrants; (g) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Representative; (h) the fees and expenses of the Company’s accountants; (i) the fees and expenses of the Company’s legal counsel and other agents and representatives; and (j) a $35,000 non-accountable expense allowance. The Representative may also deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriters.

- 23 -

6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE UNITS . The respective obligations of the Underwriters hereunder, and the closing of the sale of the Firm Units and any Additional Units, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date and any Option Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:

6.1

(a) No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a) , and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.

(b) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.

(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Units, the Common Stock, the Warrants, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.

- 24 -

(d) Becker & Poliakoff, LLP shall have furnished to the Representative such counsel’s written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date, in the form attached hereto as Exhibit B-1 .

Such counsel shall also have furnished to the Representative a written statement providing certain “10b-5” negative assurances, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the Representative, in the form attached hereto as Exhibit B-1 .

(e) [intentionally omitted]

(f) [intentionally omitted]

(g) The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chief Executive Officer, its President, and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Permitted Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure Package or the Prospectus which has not been so disclosed, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company

- 25 -

or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in the General Disclosure Package or Prospectus.

(h) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company nor any Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and any Subsidiary, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of this paragraph (h) , is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Units on the terms and in the manner contemplated in the General Disclosure Package.

(i) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Units or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Units or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary.

(j) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Nasdaq CM or the NYSE Amex or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international

- 26 -

conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Units on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.

(k) The Nasdaq CM shall have approved the Common Stock for inclusion therein, subject only to official notice of issuance.

(l) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the executive officers and directors of the Company listed in Schedule B to this Agreement.

(m) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Pricing Prospectus.

(n) The Representative shall have received the duly executed Warrant Agreement, in the form and substance reasonably acceptable to the Representative.

(o) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto.

(p) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., New York time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).

(q) Prior to the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Company shall have furnished to the Underwriters such further information, opinions, comfort letter, certificates (including a Secretary’s Certificate), letters or such other documents as the Representative shall have reasonably requested.

All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

7. INDEMNIFICATION AND CONTRIBUTION .

7.1

(a) The Company shall indemnify and hold harmless each Underwriter, its affiliates and each of its and their respective directors, officers, members, employees, representatives and agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act of or Section 20 of the Exchange Act (collectively the “ Underwriter Indemnified Parties, ” and each a “ Underwriter Indemnified Party ”) against any loss, claim, damage, expense or liability whatsoever (or

- 27 -

any action, investigation or proceeding in respect thereof), joint or several, to which such Underwriter Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “ issuer information ” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein, (B) the omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein, a material fact required to be stated therein or necessary to make the statements therein not misleading or (C) any breach of the representations and warranties of the Company contained herein or failure of the Company to perform its obligations hereunder or pursuant to any law, any act or failure to act, or any alleged act or failure to act, by the Underwriters in connection with, or relating in any manner to, the Units or the Offering, and which is included as part of or referred to in any loss, claim, damage, expense, liability, action, investigation or proceeding arising out of or based upon matters covered by subclause (A), (B) or (C) above of this Section 7(a) ( provided that the Company shall not be liable in the case of any matter covered by this subclause (C) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, expense or liability resulted directly from any such act or failure to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct), and shall reimburse the Underwriter Indemnified Party promptly upon demand for any legal fees or other expenses reasonably incurred by that Underwriter Indemnified Party in connection with investigating, or preparing to defend, or defending against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding, as such fees and expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability arises out of or is based upon an untrue statement or alleged untrue statement in, or omission or alleged omission from any Preliminary Prospectus, any Registration Statement or the Prospectus, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for use therein, which information the parties hereto agree is limited to the Underwriters’ Information (as defined in Section 17 ). This indemnity agreement is not exclusive and will be in addition to any liability, which the Company might otherwise have and shall not limit any rights or remedies which may otherwise be available at law or in equity to each Underwriter Indemnified Party.

(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the

- 28 -

“ Company Indemnified Parties ” and each a “ Company Indemnified Party ”) against any loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “ issuer information ” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “ issuer information ” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for use therein, which information the parties hereto agree is limited to the Underwriters’ Information as defined in Section 17 , and shall reimburse the Company for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b) , in no event shall any indemnity by an Underwriter under this Section 7(b) exceed the total discount and commission received by such Underwriter in connection with the Offering.

(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 7 , notify such indemnifying party in writing of the commencement of that action; provided , however , that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 7 except to the extent it has been materially prejudiced by such failure; and, provided , further , that the failure to notify an indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 7 . If any such action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action with counsel reasonably satisfactory to the indemnified party (which counsel shall not, except with the written consent of the indemnified party, be counsel to the indemnifying party). After notice from the indemnifying party to the indemnified party of its election to assume the defense of such action, except as provided herein, the indemnifying party shall not be liable to the indemnified party under Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense of such action other than reasonable costs of investigation; provided, however, that any indemnified party shall have the right to employ separate

- 29 -

counsel in any such action and to participate in the defense of such action but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at the expense of such indemnified party unless (i) the employment thereof has been specifically authorized in writing by the Company in the case of a claim for indemnification under Section 7(a) or Section 2.5 or the Representative in the case of a claim for indemnification under Section 7(b) , (ii) such indemnified party shall have been advised by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party, or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party within a reasonable period of time after notice of the commencement of the action or the indemnifying party does not diligently defend the action after assumption of the defense, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of (or, in the case of a failure to diligently defend the action after assumption of the defense, to continue to defend) such action on behalf of such indemnified party and the indemnifying party shall be responsible for legal or other expenses subsequently incurred by such indemnified party in connection with the defense of such action; provided , however , that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified parties (in addition to any local counsel), which firm shall be designated in writing by the Representative if the indemnified parties under this Section 7 consist of any Underwriter Indemnified Party or by the Company if the indemnified parties under this Section 7 consist of any Company Indemnified Parties. Subject to this Section 7(c) , the amount payable by an indemnifying party under Section 7 shall include, but not be limited to, (x) reasonable legal fees and expenses of counsel to the indemnified party and any other expenses in investigating, or preparing to defend or defending against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any action, investigation, proceeding or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of judgment with respect to any pending or threatened action or any claim whatsoever, in respect of which indemnification or contribution could be sought under this Section 7 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party in form and substance reasonably satisfactory to such indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. Subject to the provisions of the following sentence, no indemnifying party shall be liable for settlement of any pending or threatened action or any claim whatsoever that is effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with its written consent, if its consent has been unreasonably withheld or delayed or if there be a judgment for the plaintiff in any such matter, the indemnifying party agrees to indemnify and hold harmless any

- 30 -

indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, if at any time an indemnified party shall have requested that an indemnifying party reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated herein effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of the request for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

(d) If the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under Section 7(a) or Section 7(b) , then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid, payable or otherwise incurred by such indemnified party as a result of such loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof), as incurred, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and each of the Underwriters on the other hand from the offering of the Units, or (ii) if the allocation provided by clause (i) of this Section 7(d) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) of this Section 7(d) but also the relative fault of the Company on the one hand and the Underwriters on the other with respect to the statements, omissions, acts or failures to act which resulted in such loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Units purchased under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discount and commissions received by the Underwriters in connection with the Offering, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement, omission, act or failure to act; provided that the parties hereto agree that the written information furnished to the Company through the Representative by or on behalf of any Underwriter for use in any Preliminary Prospectus, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, consists solely of the Underwriters’ Information as defined in Section 17 . The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 7(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense, liability, action, investigation or proceeding referred to above in this Section 7(d) shall be deemed to

- 31 -

include, for purposes of this Section 7(d) , any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 7(d) , no Underwriter shall be required to contribute any amount in excess of the total discount and commission received by such Underwriter in connection with the Offering less the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement, omission or alleged omission, act or alleged act or failure to act or alleged failure to act. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 7(d) are several and in proportion to their respective underwriting obligations and not joint.

8. TERMINATION . The obligations of the Underwriters hereunder may be terminated by the Representative, in its absolute discretion by notice given to the Company prior to delivery of and payment for the Units if, prior to that time, any of the events described in Sections 6(h) , 6(i) or 6(j)

9. Intentionally Omitted .

10. EFFECTIVENESS; DEFAULTING UNDERWRITERS . This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Units that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Units which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of Units to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Units set forth opposite their respective names in Schedule C bears to the aggregate number of Firm Units set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Units which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Units that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such number of Units without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Units and the aggregate number of Firm Units with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Units to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Units are not made within thirty-six (36) hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven (7) days, in order that the required changes, if any, in the Registration Statement, in the Pricing Prospectus, in the Prospectus or in any other documents or

- 32 -

arrangements may be affected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Units and the aggregate number of Additional Units with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Units to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Units to be sold on such Option Closing Date or (i) purchase not less than the number of Additional Units that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

11. ABSENCE OF FIDUCIARY RELATIONSHIP . The Company acknowledges and agrees that:

11.1

(a) each Underwriter’s responsibility to the Company is solely contractual in nature, each Underwriter has been retained solely to act as an underwriter in connection with the Offering and no fiduciary, advisory or agency relationship between the Company and the Underwriters has been created in respect of any of the transactions contemplated by this Agreement;

(b) the price of the Units set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representative, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;

(c) it has been advised that the Representative and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Underwriters have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and

(d) it waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.

- 33 -

12. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT . This Agreement shall inure to the benefit of and be binding upon the several Underwriters, the Company, and their respective successors and assigns. Notwithstanding the foregoing, the determination as to whether any condition in Section 6 hereof shall have been satisfied, and the waiver of any condition in Section 6 hereof, may be made by the Representative in its sole discretion, and any such determination or waiver shall be binding on each of the Underwriters and shall not require the consent of any Underwriter. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, other than the persons mentioned in the preceding sentences, any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person; except that the representations, warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall also be for the several benefit of the Underwriter Indemnified Parties and the indemnities of the several Underwriters shall be for the benefit of the Company Indemnified Parties. It is understood that each Underwriter’s responsibility to the Company is solely contractual in nature and the Underwriters do not owe the Company, or any other party, any fiduciary duty as a result of this Agreement.

13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC . The respective indemnities, covenants, agreements, representations, warranties and other statements of the Company and the Underwriters, as set forth in this Agreement or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, the Company or any person controlling any of them and shall survive delivery of and payment for the Units. Notwithstanding any termination of this Agreement, including without limitation any termination pursuant to Section 8, the indemnity, reimbursement and contribution agreements contained in Sections 7 and 9 and the covenants, representations, warranties set forth in this Agreement shall not terminate and shall remain in full force and effect at all times.

14. NOTICES . All statements, requests, notices and agreements hereunder shall be in writing, and:

14.1

(a) if to the Underwriters, shall be delivered or sent by mail, facsimile transmission or email to JP Turner & Company, L.L.C., One Buckhead Plaza, 3060 Peachtree Road NW, Atlanta, GA 30305: Mr. Michael Rose, Fax: (866) 636-2936 with a copy to Gregory Sichenzia, Esq., Sichenzia Ross Friedman Ference LLP, 61 Broadway, New York, NY 10006, Fax: (212) 930-9700; and

(b) if to the Company, shall be delivered or sent by mail, telex, facsimile transmission or email to Authentidate Holding Corp., Connell Corporate Center, 300 Connell Drive, Suite 5100, Berkeley Heights, NJ 07922; Attn: Mr. O’Connell Benjamin, Fax: (908) 673-9921, with a copy to Victor J. DiGioia Esq., Becker & Poliakoff, LLP, 45 Broadway, New York, NY 10006, Fax: (212) 557-0295.

- 34 -

provided , however , that any notice to the Underwriters pursuant to Section 7 shall be delivered or sent by mail, email or facsimile transmission to the Representative at its address set forth in its acceptance communication to the Underwriters, which address will be supplied to any other party hereto by the Representative upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof, except that any such statement, request, notice or agreement delivered or sent by email shall take effect at the time of confirmation of receipt thereof by the recipient thereof.

15. DEFINITION OF CERTAIN TERMS . For purposes of this Agreement, (a) “business day” means any day on which the Nasdaq CM is open for trading, (b) “Affiliate” means any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such person and (c) “knowledge” means the knowledge of the directors and officers of the Company after reasonable inquiry.

16. GOVERNING LAW, AGENT FOR SERVICE AND JURISDICTION . This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. No legal proceeding may be commenced, prosecuted or continued in any court other than the courts of the State of Georgia located in the city of Atlanta or in the United States District Court for the Northern District of Georgia, which courts shall have jurisdiction over the adjudication of such matters, and the Company and the Underwriters each hereby consent to the jurisdiction of such courts and personal service with respect thereto. The Company and the Underwriters each hereby waive all right to trial by jury in any legal proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a final judgment in any such legal proceeding brought in any such court shall be conclusive and binding upon the Company and the Underwriters and may be enforced in any other courts in the jurisdiction of which the Company is or may be subject, by suit upon such judgment.

17. UNDERWRITERS’ INFORMATION . The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriters’ Information consists solely of the information set forth under the subheadings “Stabilization, Short Positions and Penalty Bids; Passive Market Making”, under the section of the Prospectus titled “Underwriting.”

18. PARTIAL UNENFORCEABILITY . The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph, clause or provision hereof. If any section, paragraph, clause or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

- 35 -

19. GENERAL . This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. In this Agreement, the masculine, feminine and neuter genders and the singular and the plural include one another. The section headings in this Agreement are for the convenience of the parties only and will not affect the construction or interpretation of this Agreement. This Agreement may be amended or modified, and the observance of any term of this Agreement may be waived, only by a writing signed by the Company and the Underwriters.

20. RESEARCH ANALYST INDEPENDENCE . The Company acknowledges that each Underwriter’s research analysts and research departments are required to be independent from its investment banking division and are subject to certain regulations and internal policies, and that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their investment banking division. The Company acknowledges that each Underwriter is a full service securities firm and as such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company; provided, however, that nothing in this Section 20 shall relieve either Underwriter of any responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations.

21. COUNTERPARTS . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument and such signatures may be delivered by facsimile or email.

- 36 -

If the foregoing is in accordance with your understanding of the agreement between the Company and the Underwriters, kindly indicate your acceptance in the space provided for that purpose below.


Very truly yours,

AUTHENTIDATE HOLDING CORP.

By:	/s/ O’Connell Benjamin
	Name:	O’Connell Benjamin
	Title:	Chief Executive Officer


Confirmed as of the date first above mentioned, on behalf of itself and the Underwriters listed in Schedule C hereto:

JP TURNER & COMPANY, L.L.C.

By:	/s/ Patrick Power
	Name:	Patrick Power
	Title:	Managing Director

SCHEDULE A

PRICING INFORMATION

Number of Units to be sold: 4,257,895

Public Offering Price per Unit: $.95

Underwriting Discount: $.076 Unit

Proceeds to Company (before expenses): $.874 per Unit

Permitted Free Writing Prospectuses

None.

- 38 -

SCHEDULE B

List of Executive Officers and Directors

Executing Lock-Up Agreements

O’Connell Benjamin

J. Edward Sheridan

J. David Luce

Todd A. Borus

Charles C. Lucas

William A. Marshall

- 39 -

SCHEDULE C

Underwriters


Underwriters	Total Number of Firm Units to be Purchased		Number of Additional Units to be Purchased if the Over-Allotment Option is Fully Exercised
JP Turner & Company, L.L.C.		4,257,895		425,790

TOTAL		4,257,895		425,790

- 40 -

EXHIBIT A

FORM OF LOCK-UP AGREEMENT

June , 2013

JP Turner & Company, L.L.C.

One Buckhead Plaza

3060 Peachtree Road NW

Atlanta, GA 30305

Ladies and Gentlemen:

The undersigned understands that JP Turner & Company, L.L.C. (the “ Representative ”) proposes to enter into an Underwriting Agreement (the “ Underwriting Agreement ”) with Authentidate Holding Corp., a Delaware corporation (the “ Company ”), providing for the public offering (the “ Public Offering ”) of up to $5 million worth of common stock of the Company, par value $0.001 (the “ Shares ”), together with common stock purchase warrants.

To induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, the undersigned will not, during the period commencing on and including the date of the Underwriting Agreement and ending on the ninetieth (90 ^th ) calendar day after the date of the final prospectus (the “ Prospectus ”) relating to the Public Offering (the “ Lock-Up Period ”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “ Lock-Up Securities ”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representative in connection with (a) transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), shall be required or shall be voluntarily made in connection with subsequent sales of Lock-Up Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as by will or intestacy or as a bona fide gift; (c) transfers of Lock-Up Securities to a charity or educational institution; (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any transfers of Lock-Up Securities to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer made by the undersigned in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or

- 41 -

other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this lock-up agreement, or (f) the occurrence after the date hereof of any of (i) an acquisition by an unaffiliated individual, legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of 100% of the voting securities of the Company, (ii) the Company merges into or consolidates with any other unaffiliated entity, or any unaffiliated entity merges into or consolidates with the Company, (iii) the Company sells or transfers all or substantially all of its assets to an unaffiliated third party in a bona fide transaction, provided, that, the Common Stock received upon any of the events set forth in clauses (i) through (iii) above shall remain subject to the restrictions provided for in this Agreement; provided that in the case of any transfer or distribution pursuant to the foregoing clauses (b), (c) or (d), (x) any such transfer shall not involve a disposition for value and (y) each transferee shall sign and deliver a lock-up letter substantially in the form of this lock-up agreement. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.

If (i) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of such material news or material event, as applicable, unless the Representative waives, in writing, such extension.

The undersigned agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during the period from the date hereof to and including the 34 ^th day following the expiration of the initial Lock-Up Period, the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the previous paragraph) has expired.

No provision in this agreement shall be deemed to restrict or prohibit the exercise, exchange or conversion by the undersigned of any securities exercisable or exchangeable for or convertible into Shares, as applicable; provided that the undersigned does not transfer the Shares acquired on such exercise, exchange or conversion during the Lock-Up Period, unless otherwise permitted pursuant to the terms of this lock-up agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Lock-Up Securities within the Lock-Up Period).

The undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that, subject to the paragraph immediately following this sentence, this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.

The undersigned understands that, if the Underwriting Agreement is not executed by the Representative prior to June 17, 2013, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder, this agreement shall be void and of no further force or effect.

- 42 -

Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.

This Lock-Up Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.


Very truly yours,


(Name - Please Print)


(Signature)


(Name of Signatory, in the case of entities - Please Print)


(Title of Signatory, in the case of entities - Please Print)

Address:

- 43 -

EXHIBIT B-1

FORM OF OPINION OF COMPANY COUNSEL

- 44 -

Exhibit 3.1

AUTHENTIDATE HOLDING CORP.

CERTIFICATE OF DESIGNATIONS, PREFERENCES AND

RIGHTS AND NUMBER OF SHARES OF

SERIES D CONVERTIBLE PREFERRED STOCK

Pursuant to Section 151 of the

Delaware General Corporation Law

The undersigned President of AUTHENTIDATE HOLDING CORP., a Delaware corporation (the “ Corporation ”), hereby certifies that pursuant to authority granted to and vested in the Board of Directors of the Corporation by the provisions of the Certificate of Incorporation and in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware, its Board of Directors has duly adopted the following resolutions creating the Series D Convertible Preferred Stock:

RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation by the Corporation’s Certificate of Incorporation, a series of preferred stock of the Corporation be, and it hereby is, created out of the 4,972,000 shares of authorized but unissued shares of the preferred stock, par value $.10 per share, of the Corporation, such series to be designated Series D Convertible Preferred Stock (the “ Series D Preferred Stock ”), to consist of 665,000 shares, par value $.10 per share, of which the rights, preferences and privileges, and the qualifications, limitations or restrictions thereof, shall be (in addition to those set forth in the Corporation’s Certificate of Incorporation) as follows:

Certain Definitions

Unless the context otherwise requires, the terms defined in this Section 1 shall have, for all purposes of this resolution, the meanings herein specified.

“ Affiliate ” means, as to any Person (the “ subject Person ”), any other Person (a) that directly or indirectly through one or more intermediaries controls or is controlled by, or is under direct or indirect common control with, the subject Person, (b) that directly or indirectly beneficially owns or holds ten percent (10%) or more of any class of voting equity of the subject Person, or (c) ten percent (10%) or more of the voting equity of which is directly or indirectly beneficially owned or held by the subject Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, through representation on such Person’s board of directors or other management committee or group, by contract or otherwise.

“ Board of Directors ” or “ Board ” means the Company’s Board of Directors, as constituted from time to time.

“ Business Day ” means any day other than a Saturday, a Sunday or a day on which the New York Stock Exchange or commercial banks located in New York City are authorized or permitted by law to close.

“ Certificate of Designation ” means this Certificate of Designations, Preferences and Rights and Number of Shares of Series D Convertible Preferred Stock.

“ Common Stock ” means all shares now or hereafter authorized of any class of Common Stock, par value $.001 per share, of the Corporation, and any other stock of the Corporation, howsoever designated, authorized after the Original Issue Date, which has the right (subject always to prior rights of any class or series of preferred stock) to participate in the distribution of the assets and earnings of the Corporation without limit as to per share amount.

“ Conversion Rate ” means the rate at which shares of Common Stock shall be delivered upon the conversion of the shares of Series D Preferred Stock, which shall be initially $1.08571, subject to adjustment in accordance with Section 6 of this Certificate of Designation.

“ Conversion Shares ” means the shares of Common Stock issued or issuable to the Holders upon conversion of the shares of Series D Preferred Stock in accordance with the terms hereof.

“ Fair Market Value ” means, on any given day: (A) if the shares of Common Stock of the Corporation are exchange-traded, the average of the closing sales prices per share of Common Stock for the ten (10) consecutive Trading Days ending on the day that is two (2) Trading Days prior to the applicable date of determination of Fair Market Value; or (B) if the shares of Common Stock of the Corporation are not listed or admitted to trading on any securities exchange but are regularly traded in any over-the-counter market, then the average of the bid and ask prices per share of Common Stock for the ten (10) consecutive Trading Days ending on the day that is two (2) Trading Days prior to the applicable date of determination of Fair Market Value; or (C) if the shares of Common Stock of the Corporation are not traded as described in clauses (A) or (B), then the per share fair market value of the Common Stock as determined in good faith by the Corporation’s Board of Directors.

“ Holder(s) ” means the holder(s) of the outstanding share(s) of Series D Preferred Stock.

“ Liquidation Payment ” means the amount paid in cash for each share of Series D Preferred Stock equal to the sum of: (i) the Stated Value of such share of Series D Preferred Stock and (ii) all accrued but unpaid dividends on such share of Series D Preferred Stock to the date fixed for liquidation.

“ Majority Holders ” means the Holders of a majority of the shares of Series D Preferred Stock outstanding at the time of such determination.

“ Original Issue Date ” means the date a share of Series D Preferred Stock was first issued by the Corporation.

“ Person ” means any individual, corporation, trust, association, corporation, partnership, joint venture, limited liability corporation, joint stock corporation, governmental authority or other person or entity.

“ Purchase Agreement ” means that certain securities purchase agreement dated as of the date of this Certificate of Designation between the Corporation and the initial Holders of the Corporation’s Series D Preferred Stock.

“ Redemption Date ” means any date set by the Corporation for redemption of all or a part of the then outstanding shares of Series D Preferred Stock in accordance with Section 5 hereof.

“ Redemption Price ” means, with respect to each share of Series D Preferred Stock, the sum of: (i) the Stated Value of such share of Series D Preferred Stock being redeemed, plus (ii) the accrued and unpaid dividends with respect to such share of Series D Preferred Stock, as of the Redemption Date.

“ Stated Value ” means the initial per share sale price of each share of Series D Preferred Stock of $10.00.

“ Subsidiary ” means any corporation of which shares of stock possessing at least a majority of the general voting power in electing the board of directors are, at the time as of which any determination is being made, owned by the Corporation, whether directly or indirectly through one or more Subsidiaries.

“ Trading Day ” means a day on which the Trading Market on which the Corporation’s Common Stock is listed for trading is open for trading.

“ Trading Market ” means any of the following markets or exchanges on which the Common Stock of the Corporation is listed or quoted for trading on the date in question: the NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board.

Except as explicitly stated, all definitions contained in this Certificate of Designation are equally applicable to the singular and plural forms of the terms defined. The words “hereof”, “herein” and “hereunder” and words of similar import referring to this Certificate of Designation refer to this Certificate of Designation as a whole and not to any particular provision of this Certificate of Designation.

Rank

The Series D Preferred Stock shall, with respect to dividend rights and rights on liquidation, winding up and dissolution, rank (a) junior to the Corporation’s Series B Preferred Stock and any other series of preferred stock hereafter established by the Board of Directors and, as required by Section 8 , approved by the affirmative vote of the Majority Holders (collectively referred to herein as the “ Senior Securities ”); (b) on a parity with any other series of preferred stock established by the Board of Directors and, as required by Section 8 , approved by the affirmative vote of the Majority Holders, the terms of which shall specifically provide that such series shall rank on a parity with the Series D Preferred Stock (the Series D Preferred Stock and any such other securities are referred to herein collectively as the “ Parity Securities ”), and (c) prior to any other equity securities of the Corporation, including the Common Stock, all of such equity securities of the Corporation to which the Series D Preferred Stock ranks prior, including the Common Stock, are referred to herein collectively as the “ Junior Securities ”.

Dividends

(a) Subject to the limitations described below, Holders of shares of Series D Preferred Stock will be entitled to receive, out of funds of the Corporation legally available for payment thereof as determined by the Board of Directors in good faith, dividends in cash, or at the option of the Corporation, in additional shares of Common Stock of the Corporation, at a rate per share of 5% of the Stated Value per annum, payable semi-annually in arrears on each December 31 ^st and June 30 ^th , beginning on December 31, 2013 (each such date, a “ Dividend Payment Date ”).

(b) (i) In the event the Corporation elects to pay dividends to the Holders in additional shares of Common Stock (such shares may be referred to herein as “ Dividend Shares ”), the Corporation shall provide written notice of such election to each Holder on or before the tenth (10 ^th ) calendar day immediately prior to the Dividend Payment Date with respect to which the Corporation has made such election stating such determination (a “ Common Stock Dividend Notice ”). In the event that the Corporation does not deliver a Common Stock Dividend Notice on or before such tenth (10 ^th ) day, the Corporation will be deemed to have elected to pay the related dividend in cash. A Common Stock Dividend Notice, once delivered by the Corporation, shall be irrevocable with respect to the specific Dividend Payment Date to which it refers, unless the Company is not permitted to exercise the Common Stock Dividend Option in accordance with the terms of this Certificate of Designation.

(ii) If the Corporation wishes to exercise its right to pay dividends in additional shares of Common Stock with respect to less than all of the dividends due on a Dividend Payment Date, then the Corporation’s exercise of such right (and the delivery of shares of Common Stock pursuant thereto) shall be allocated among the Holders on a pro rata basis in accordance with the number of shares of Series D Preferred Stock held by each Holder. In connection with any election by the Corporation to pay dividends in additional shares of Common Stock, the number of Dividend Shares to be issued as of a given Dividend Payment Date shall be determined by dividing the amount of dividends payable on the applicable Dividend Payment Date divided by the greater of (x) the Conversion Rate on the Original Issue Date or (y) the Fair Market Value of a share of Common Stock determined by reference to the applicable Dividend Payment Date (in either case, with such price subject to equitable adjustments for stock splits, stock dividends or rights offerings by the Corporation relating to the Corporation’s securities, combinations, recapitalization reclassifications and similar events). All fractional shares resulting from the issuance of Dividend Shares shall be rounded up or down to the nearest whole share.

(iii) Notwithstanding the foregoing, however, the Corporation shall not be permitted to pay dividends to the Holders in additional shares of Common Stock, if and to the extent that (A) the Corporation does not have a sufficient number of shares of Common Stock reserved for issuance under its Certificate of Incorporation, as in effect at such time as the Corporation elects to pay dividends in shares of Common Stock (B) the issuance of such shares of Common Stock would cause the Holder to beneficially own a number of shares of Common Stock in excess of the beneficial ownership limitation as determined in accordance with Sections 7(a) and 7(b) ; or (C) the issuance of such shares of Common Stock would cause the Corporation to exceed the Exchange Cap (as defined below in Section 7 ), unless any issuances in excess of the foregoing limitation are approved by the Company’s common stockholders.

(c) Dividends will be cumulative from the Original Issue Date and will be payable to holders of record as they appear on the stock books of the Corporation on the tenth business day prior to the dividend payment date. If any dividend payment date is not a business day, such dividend payment date shall be the next succeeding Business Day. The dividends with respect to any shares of Series D Preferred Stock shall be computed on the basis of a 365-day year and actual days elapsed. All dividends paid with respect to shares of the Series D Preferred Stock pursuant to Section 3(a) shall be paid pro rata to the Holders entitled thereto.

(d) Dividends to be paid in cash shall be paid to the account of a Holder in U.S. funds and delivered to the registered Holder of the shares of Series D Preferred Stock at the address of such Holder appearing in the Corporation’s records or such other address as the Holder provides to the Corporation pursuant to a written notice delivered to the Corporation in accordance with Section 14 of this Certificate of Designation. Dividend Shares, if and when issued in payment of dividends on the Series D Preferred Stock, shall be issued to the registered Holder of the shares of Series D Preferred Stock

at the address of such Holder appearing in the Corporation’s records or such other address as the Holder provides to the Corporation pursuant to a written notice delivered to the Corporation in accordance with Section 14 of this Certificate of Designation.

(e) Notwithstanding anything contained herein to the contrary, no dividends on shares of the Series D Preferred Stock, the Parity Securities or the Junior Securities shall be declared by the Board of Directors or paid or set apart for payment by the Corporation (i) unless all accrued and unpaid dividends on the Senior Securities for all prior periods and the current period have been paid or declared and set apart for payment; and (ii) at any time that the terms or provisions of any indenture or agreement of the Corporation, including any agreement relating to its indebtedness, specifically prohibits such declaration, payment or setting apart for payment or that such declaration, payment or setting apart for payment would constitute (after notice or lapse of time or otherwise) a breach of or a default under any such indenture or agreement; provided, however, than nothing herein contained shall in any way or under any circumstances be construed or deemed to require the Board of Directors to declare or the Corporation to pay or set apart for payment any cash dividends at any time, whether permitted by any of such agreements or not.

(f) (i) No dividends shall be declared or paid or set apart for payment on any Parity Securities for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series D Preferred Stock for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. If any dividends are not paid in full, as aforesaid, upon the shares of the Series D Preferred Stock and any other Parity Securities, all dividends declared upon shares of the Series D Preferred Stock and any other Parity Securities shall be declared pro rata so that the amount of dividends declared per share on the Series D Preferred Stock and such other Parity Securities shall in all cases bear to each other the same ratio that accrued dividends per share on the Series D Preferred Stock and such other Parity Securities bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series D Preferred Stock or any other Parity Securities which may be in arrears.

(ii) Any dividend not paid pursuant to Section 3(a) or Section 3(b) hereof shall be fully cumulative and shall accrue (whether or not declared), without interest, as set forth in Section 3(a) hereof.

(g) (i) The Holders shall be entitled to receive the dividends provided for in Section 3(a) hereof in preference to and in priority over any dividends upon any of the Junior Securities. The Corporation shall not declare, pay or set apart for payment any dividend on any Junior Securities or make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any Junior Securities, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of the Corporation, or other property, to the holders thereof, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Junior Securities, unless prior to or concurrently with such declaration, payment, setting apart for payment, purchase or distribution, as the case may be, all accrued and unpaid dividends on shares of any Series D Preferred Stock shall have been or be duly paid in full and all redemption payments which have become due with respect to such Series D Preferred Stock shall have been or be duly discharged.

(ii) Subject to the forgoing provisions of this Section 3 , the Board of Directors may declare, and the Corporation may pay or set apart for payment, dividends and other distributions on any of the Junior Securities, and may purchase or otherwise redeem any of the Junior Securities or any warrants, rights or options exercisable for or convertible into any of the Junior Securities, and the Holders shall not be entitled to share therein.

(h) All payments of dividends pursuant to this Section by the Corporation shall be made with deduction for or on account of any present or future tax, assessment or other governmental charge imposed upon such payment by the United States of America or any political subdivision or taxing authority thereof or therein.

Distributions Upon Liquidation, Dissolution or Winding Up

(a) (i) In the event of any Liquidation Event, subject to the rights, preferences and privileges of any Senior Securities, the Holders shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders an amount in cash equal to the Liquidation Payment for each share of Series D Preferred Stock outstanding before any payment shall be made or any assets distributed to the holders of any of the Junior Securities. If the assets of the Corporation are not sufficient to pay in full the Liquidation Payments payable to the Holders or any other Parity Securities, then the holders of all such shares shall share ratably in such distribution of assets in accordance with the amount which would be payable on such distribution if the amounts to which the Holders and the holders of outstanding shares of such other Parity Securities are entitled were paid in full.

(ii) The Holders will not be entitled to receive the Liquidation Payment of such shares until the liquidation payments of the Corporation’s Senior Securities now existing or hereafter issued has been paid in full (including liquidation payments that would be due regardless if such Liquidation Event triggered a payment to such holders).

(b) The Liquidation Payment with respect to each fractional share of the Series D Preferred Stock outstanding shall be equal to a ratably proportionate amount of the Liquidation Payment with respect to each outstanding share of Series D Preferred Stock.

(c) For the purposes of this Section 4 , a “Liquidation Event” means (i) a voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or their consideration) of all or substantially all the property or assets of the Corporation or the merger, consolidation, combination, reorganization, or recapitalization, or other similar transaction, of the Corporation, with one or more other corporations, in which the Corporation is not the surviving entity or in which the Corporation’s shareholders prior to such transaction own less than 50% of the Corporation’s capital stock after giving effect to such transaction; or (ii) any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

Redemption

Commencing on the second anniversary of the Original Issue Date, the shares of Series D Preferred Stock shall be redeemable at any time, in whole or in part, by the Corporation, at its option, as follows:

(a) The Series D Preferred Stock is redeemable at any time commencing on the second anniversary of the Original Issue Date at the option of the Company, on not less than 10 nor more than 60 days written notice to registered holders at a redemption price equal to the Stated Value per share of Series D Preferred Stock to be redeemed, plus accrued and unpaid dividends thereon; provided, however, that the public sale of the shares of Common Stock issuable upon conversion of the Series D Preferred Stock are covered by an effective registration statement, or are otherwise exempt from registration. Notwithstanding the foregoing, however, if any shares of Series B Convertible Preferred Stock are outstanding at the time the Corporation intends to redeem shares of Series D Preferred Stock, the Corporation shall either first redeem such shares of Series B Convertible Preferred Stock in accordance with the terms of the Certificate of Designations, Preferences and Rights and Number of Shares of Series B Convertible Preferred Stock on or prior to the Redemption Date or obtain the consent of the holders of the requisite number of shares of Series B Convertible Preferred Stock necessary to permit the redemption of the shares of Series D Preferred Stock.

(b) If less than all of the outstanding shares of Series D Preferred Stock are to be redeemed, the Corporation will select those to be redeemed pro rata or by lot or in such other manner as the Board of Directors may reasonably determine. In the event that the Corporation has failed to pay accrued and unpaid dividends on the Series D Preferred Stock, it may not redeem any of the then outstanding shares of the Series D Preferred Stock, unless all the then outstanding shares are redeemed and until all such accrued and unpaid dividends and (except with respect to shares to be redeemed) the then current semi-annual dividend have been paid in full.

(d) Prior to redemption, the Corporation shall deliver to each record holder of Series D Preferred Stock notice of its intention to redeem some or all of the shares of Series D Preferred Stock (the “ Redemption Notice ”). The Redemption Notice shall state the Redemption Date, which date shall be a Business Day. The Redemption Notice shall be mailed (by United States first class mail) or delivered via overnight courier at least 10 days but not more than 60 days before the Redemption Date to each Holder of record of shares of Series D Preferred Stock to be redeemed at the address shown on the stock books of the Corporation. During the period between the issuance of a Redemption Notice and the date set for redemption, holders of Series D Preferred Stock may convert such shares into Common Stock, solely to the extent that such conversion is otherwise permitted in accordance with the terms and conditions of this Certificate of Designation.

(e) Unless a holder of Series D Preferred Stock elects to convert his Series D Preferred Stock prior to 3:00 p.m. (Eastern Time) on the Redemption Date, each Holder shall, prior to 3:00 p.m. (Eastern Time) on the Redemption Date, return any and all original share certificates representing Series D Preferred Stock to be redeemed to the Corporation (or such other place at set forth in the Redemption Notice) and such certificates shall be duly endorsed or assigned either to the Corporation or in blank. At 3:00 p.m. (Eastern Time) on the Redemption Date, the right of any holder to convert their shares of Series D Preferred Stock shall terminate.

(f) From and after such Redemption Date, unless there shall have been a default in payment of the Redemption Price or the Corporation is unable to pay the Redemption Price due to not having sufficient legally available funds, dividends will cease to accrue on the shares of Series D Preferred Stock called for redemption, and all rights of the Holder of such shares as holder of Series D Preferred Stock, (except the right to receive the Redemption Price without interest upon surrender of their

certificates), shall cease and terminate with respect to such shares and such shares shall not thereafter be transferred on the books of the Corporation or be deemed to be outstanding for any purpose whatsoever; provided that in the event that shares of Series D Preferred Stock are not redeemed due to a default in payment by the Corporation or because the Corporation does not have sufficient legally available funds, such shares of Series D Preferred Stock shall remain outstanding and shall be entitled to all of the rights and preferences provided herein until redeemed. If the funds of the Corporation legally available for redemption on the Redemption Date are insufficient to redeem all the outstanding shares of Series D Preferred Stock called for redemption, those funds which are legally available will be used to redeem the maximum possible number of such shares ratably among the Holders of such shares in proportion to the aggregate Redemption Price to which they would otherwise be respectively entitled to receive pursuant to this Section 5 . The shares not redeemed shall remain outstanding and be entitled to all the rights and preferences provided herein. The Corporation shall deliver the Redemption Price within 10 days after receipt by the Corporation of the original shares of Series D Preferred Stock returned by the holder to the Corporation. All shares of Series D Preferred Stock redeemed pursuant to this Section 5 will be restored to the status of authorized but unissued shares of preferred stock, without designation as to series, and may thereafter be issued, but not as shares of Series D Preferred Stock.

Conversion Rights

The Series D Preferred Stock shall be convertible into Common Stock as follows:

(a) Optional Conversion . Subject to and upon compliance with the provisions of this Section 6 and the limitations set forth in Section 7 , unless previously redeemed by the Corporation, the Holders have the right, at such Holder’s option, at any time, and from time to time, commencing on the date that is six (6) months from the Original Issue Date, to convert some or all of such Holder’s shares of Series D Preferred Stock into fully paid and nonassessable shares of Common Stock at the then-current Conversion Price in accordance with the terms and conditions of this Section 6(a) . The Holder shall effect conversion(s) by surrendering the certificate or certificates representing the shares of Series D Preferred Stock to be converted to the Corporation, together with the form of conversion notice attached hereto as Exhibit A (the “ Notice of Conversion ”). Each Notice of Conversion shall specify the number of shares of Series D Preferred Stock to be converted, include the other information specified on the Holder Conversion Notice, and specify the date on which such conversion is to be effected (the “ Holder Conversion Date ”), which date shall be determined in accordance with Section 6(e) , and which may not be prior to the date on which the Holder delivers such Holder Conversion Notice. If no Holder Conversion Date is specified in a Notice of Conversion, the Holder Conversion Date shall be the date determined in accordance with Section 6(e) .

(b) Mandatory Conversion . Commencing on the third anniversary of the Original Issue Date, the Corporation shall have the right to require conversion of some or all of the shares of Series D Preferred Stock then outstanding into fully paid and nonassessable shares of Common Stock, without any further action of the Holders, at the then-current Conversion Price in accordance with the terms and conditions of this Section 6(b) (the “ Mandatory Conversion ”). In order to effect a Mandatory Conversion hereunder, the Corporation must deliver to each Holder written notice thereof (a “ Mandatory Conversion Notice ”) , on not less than 10 nor more than 60 days written notice to registered holders of shares of Series D Preferred Stock. The Mandatory Conversion Notice shall state the date determined for the effectiveness of the Mandatory Conversion (the “ Conversion Date ”), which date shall be a Business Day. The Mandatory Conversion Notice shall be mailed (by United States first class mail) or delivered via overnight courier, at least 10 days but not more than 60 days before the Conversion Date to each Holder of record of shares of Series D Preferred Stock to be converted at the address shown on the stock books of

the Corporation. During the period between the issuance of a Mandatory Conversion Notice and the date set for Mandatory Conversion, holders of Series D Preferred Stock may convert such shares into Common Stock in accordance with Section 6(a) . However, the right to convert shares called for redemption pursuant to Section 5 shall terminate at 3:00 p.m. (Eastern Time) on the date fixed for such redemption, unless the Corporation shall default in making payment of the amount payable upon such redemption. If the Corporation elects to effect a Mandatory Conversion, it shall instruct the transfer agent for its Common Stock to issue to each Holder, following such Holder’s compliance with the procedures described herein, the number of shares of Common Stock determined in accordance with Section 6(d) , below. The Holder agrees to comply with the applicable procedures for effectuating a Mandatory Conversion, as specified herein or in separate written instructions delivered by the Corporation or its transfer agent. Each Holder shall be deemed to be, and treated as, a holder of such number of shares of Common Stock of the Company as to which each Holder’s shares of Series D Preferred Stock are convertible into at the close of business on the date of a Mandatory Conversion. As of the date noticed for the Mandatory Conversion, each certificate representing shares of Series D Preferred Stock shall solely represent the right to receive that number of Conversion Shares into which the shares of Series D Preferred Stock are convertible. Each certificate representing shares of Series D Preferred Stock shall be cancelled upon issuance of the certificates representing the Conversion Shares into which the Series D Preferred Stock was converted.

(c) Limitations on Mandatory Conversions . Notwithstanding anything contained herein to the contrary, the Corporation shall not have the right to effect a Mandatory Conversion hereunder with respect to a given Holder’s shares of Series D Preferred Stock to the extent that any such conversion would result in the issuance by the Corporation to such Holder, during the period of sixty consecutive calendar days ending on (and including) the Mandatory Conversion Date, of a number of shares of Common Stock (including all shares of Common Stock issued pursuant to conversions effected in accordance with Section 6(a) hereof during such sixty day period) that exceeds the Beneficial Ownership Amount (as defined below in Section 7 ) of a given Holder on the Mandatory Conversion Date. In the event that the Mandatory Conversion of a Holder’s shares of Series D Preferred Stock is limited pursuant to this Section 6(c) , then the Corporation may effect such additional Mandatory Conversions (each, a “ Subsequent Mandatory Conversion ”) as are necessary to effect the Mandatory Conversion of the remainder of such Holder’s Series D Preferred Stock, each such Subsequent Mandatory Conversions to be effective not less than twenty (20) Trading Days following the immediately preceding Mandatory Conversion or Subsequent Mandatory Conversion (as the case may be); and provided further , that the limitations set forth in this Section 6(c) above shall apply to each such Subsequent Mandatory Conversion. In addition to the foregoing, the Corporation shall not have the right to effect a Mandatory Conversion hereunder to the extent that any such conversion would result in the issuance by the Corporation of a number of shares of Common Stock that would be in excess of the Exchange Cap, unless issuances in excess of the Exchange Cap shall have been approved by the Corporation’s common stockholders.

(d) Number of Conversion Shares . The number of Conversion Shares to be delivered by the Corporation upon any conversion (whether at the option of a Holder pursuant to Section 6(a) or upon a Mandatory Conversion pursuant to Section 6(b) ) shall be determined by adding (i) the quotient obtained by dividing (x) the aggregate Stated Value of all of the shares of Series D Preferred Stock to be converted by (y) the Conversion Rate in effect on the date of conversion plus (ii) the quotient obtained by dividing (x) all accrued and unpaid dividends thereon, if any, by (y) the greater of (A) the Conversion Rate on the Original Issue Date or (B) the quotient obtained by dividing (x) the amount of dividends to be converted by (y) the Fair Market Value of a share of Common Stock determined by

reference to the Conversion Date (in either case, with such price subject to equitable adjustments for stock splits, stock dividends or rights offerings by the Corporation relating to the Corporation’s securities, combinations, recapitalization reclassifications and similar events).

(e) Conversion Procedures . In order to exercise the conversion privilege hereunder, the Holders of each share of Series D Preferred Stock to be converted, whether upon an optional conversion or a Mandatory Conversion, shall surrender the certificate representing such shares of Series D Preferred Stock to a designated officer or agent of the Corporation appointed for such purpose by the Corporation, with the Notice of Conversion on the back of said certificate completed and signed. The Corporation shall use its reasonable best efforts to issue or cause its transfer agent to issue the Conversion Shares as soon as reasonably practicable following the Holder’s compliance with any applicable procedural requirements adopted by the Corporation in connection with the issuance of the Conversion Shares, including without limitation, the Holder surrendering to the Corporation, or its agent, the original of the Holder’s certificate(s) representing the shares of Series D Preferred Stock subject to the Conversion. The Corporation shall bear the cost associated with the issuance of the Common Stock issuable upon conversion. If required in the reasonable judgment of the Corporation, the Conversion Shares shall be issued with a restrictive legend indicating that it was issued in a transaction which is exempt from registration under the Securities Act of 1933, as amended, and that it cannot be transferred unless it is so registered, or an exemption from registration is available, in the opinion of counsel to the Corporation. The Common Stock issuable upon conversion shall be issued in the same name as the Person who is the then-current Holder of the Series D Preferred Stock unless, following a written request by a Holder to have such Conversion Shares issued in a different name, in the opinion of counsel to the Corporation, a change of name and such transfer can be made in compliance with applicable securities laws. Unless the shares of Common Stock issuable on conversion are to be issued in the same name in which such share of Series D Preferred Stock is registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the Holder or such Holder’s duly authorized attorney and an amount sufficient to pay any transfer or similar tax. Shares of Series D Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.

(i) Partial Conversions . Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Series D Preferred Stock surrendered for conversion, the Corporation shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of Series D Preferred Stock representing the unconverted portion of the certificate so surrendered.

(ii) Effective Date of Conversions . With respect to an optional conversion of the Series D Preferred Stock pursuant to Section 6(a) , each conversion shall be deemed to have been effected immediately prior to the close of business on the date on which the certificates for shares of Series D Preferred Stock shall have been surrendered and such notice received by the Corporation as aforesaid, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby at such time on such date, unless the stock transfer books of the Corporation shall be closed on that date, in which event such person or persons shall be deemed to have become such holder or holders of record at the close of business on the next succeeding day on which such stock transfer books are open, and such notice received by the Corporation. The effective date of a Mandatory Conversion shall be determined in accordance with Section 6(b) , above.

(f) Fractional Shares . No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of Series D Preferred Stock. If any Holder is entitled to receive a fractional Conversion Share, such fractional Conversion Share shall be disregarded and the number of Conversion Shares issuable upon such conversion, in the aggregate, shall be the next closest whole number of Conversion Shares. If more than one share of Series D Preferred Stock shall be surrendered for conversion at any one time by the same holder, the number of full shares of Common stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series D Preferred Stock so surrendered. No cash or property shall be issued in lieu of fractional Conversion Shares upon conversion.

(g) Payment of Certain Dividends . The Holders at the close of business on a dividend payment record date shall be entitled to receive the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the conversion thereof or the Corporation’s default in payment of the dividend due on such Dividend Payment Date (except that holders of shares called for redemption on a redemption date between such record date and the Dividend Payment Date shall not be entitled to receive such dividend on such dividend payment date). A Holder on a dividend payment record date who (or whose transferee) surrenders any of such shares for conversion into shares of Common Stock on a Dividend Payment Date will receive the dividend payable by the Corporation on such shares of Series D Preferred Stock on such date. Except as provided above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on converted shares or for dividends on the shares of Common Stock issued upon such conversion.

(h) Conversion Rate Adjustments . The Conversion Rate shall be subject to adjustment from time to time as follows:

(i) Subdivisions, Reclassifications or Combinations . If the Corporation shall subdivide (by any stock split, stock dividend, recapitalization, reorganization, reclassification or otherwise) the outstanding shares of Common Stock into a greater number of shares, then the Conversion Price in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately reduced. If the Corporation, at any time after the Closing Date, combines (by reverse stock split, recapitalization, reorganization, reclassification or otherwise) the outstanding shares of Common Stock into a smaller number of shares, then the Conversion Price in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionally increased. Successive adjustments in the Conversion Rate shall be made whenever any event specified above shall occur.

(ii) Consolidation, Merger, Sale or Conveyance. In case of any consolidation or merger of the Corporation with any other corporation or entity (other than a wholly owned Subsidiary), or in case of sale or transfer of all or substantially all of the assets of the Corporation, or in the case of any share exchange whereby the Common Stock is converted into other securities or property, the Corporation will be required to make appropriate provision so that each Holder of shares of Series D Preferred Stock then outstanding will have the right thereafter to convert such share of Series D Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Series D Preferred Stock was convertible immediately prior to such consolidation, merger, sale, transfer or share exchange.

(iii) Adjustments . No adjustment of the Conversion Rate will be made for cash distributions or cash dividends paid out of funds legally available therefor. All calculations under this Section 6(h) shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be.

(i) Statement Regarding Adjustments. Whenever the Conversion Rate shall be adjusted as provided in Section 6(h) , the Corporation shall forthwith file, at the office of any transfer agent for the Series D Preferred Stock and at the principal office of the Corporation, a statement showing in detail the facts requiring such adjustment and the Conversion Rate that shall be in effect after such adjustment, and the Corporation shall also cause a copy of such statement to be sent by registered or certified mail, return receipt requested, postage prepaid, to each Holder of shares of Series D Preferred Stock at its address appearing on the Corporation’s records. Where appropriate, such copy may be included as part of a notice required to be mailed under the provisions of Section 6(j) .

(j) Notice to Holders. In the event the Corporation shall propose to take any action of the type described in Section 6(h) (but only if the action would result in an adjustment in the Conversion Rate), the Corporation shall give notice to each Holder of shares of Series D Preferred Stock, in the manner set forth in this Certificate of Designation, which notice shall specify the record date, if any, with respect to any such action and the approximate date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Rate and the number, kind or class of shares or other securities or property which shall be deliverable upon conversion of shares of Series D Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least 10 days prior to the date so fixed, and in case of all other action, such notice shall be given at least 10 days prior to the taking of such proposed action. Notwithstanding the immediately preceding sentence, however, if the date on which the Corporation is obliged to provide notice hereunder to the Holders is prior to a public announcement relating to the events set forth and on such date the Corporation’s securities are traded or quoted on any recognized national securities exchange or quotation system, then such notice shall be provided to each Holder of the Series D Convertible Preferred Stock simultaneously with the notice provided to the Corporation’s stockholders. Failure to give such notice, or any defect therein, shall not, however, affect the legality or validity of any such action.

(k) Costs. The Corporation shall pay all documentary, stamp, transfer or other transactional taxes attributable to the issuance or delivery of shares of Common Stock upon conversion of any shares of Series D Preferred Stock; provided that the Corporation shall not be required to pay any taxes which may be payable in respect of any transfer involved in the issuance or delivery of any certificate for such shares in a name other than that of the Holder of the shares of Series D Preferred Stock in respect of which such shares are being issued.

(l) Reservation of Shares. The Corporation shall reserve at all times so long as any shares of Series D Preferred Stock remain outstanding, free from preemptive rights, out of its treasury stock (if applicable) or its authorized but unissued shares of Common Stock, or both, solely for the purpose of effecting the conversion of the shares of Series D Preferred Stock, sufficient shares of Common Stock to provide for the conversion of all outstanding shares of Series D Preferred Stock.

(m) Valid Issuance. All shares of Common Stock which may be issued upon conversion of the shares of Series D Preferred Stock will upon issuance by the Corporation be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof, and the Corporation shall take no action which will cause a contrary result (including, without limitation, any action which would cause the Conversion Rate to be less than the par value, if any, of the Common Stock).

Conversion Limitations

(a) The Corporation shall not effect any conversion of the Preferred Stock, and a Holder shall not have the right to convert any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below) as a result of such conversion. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series D Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 7 , beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 7 applies, the determination of whether the Series D Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates) and of how many shares of Series D Preferred Stock are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Series D Preferred Stock may be converted (in relation to other securities owned by such Holder together with any Affiliates) and how many shares of the Series D Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 7 , in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Corporation’s transfer agent setting forth the number of shares of Common Stock outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Series D Preferred Stock, by such Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported.

(b) The “ Beneficial Ownership Limitation ” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of Series D Preferred Stock held by the applicable Holder. A Holder, upon not less than sixty-one (61) days’ prior notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7 applicable to its Series D Preferred Stock provided that the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of Series D Preferred Stock held by the Holder and the provisions of this Section 7

shall continue to apply, unless any issuances in excess of such limitation are approved by the Corporation’s common stockholders. Any such increase or decrease will not be effective until the sixty-first (61 ^st ) day after such notice is delivered to the Corporation and shall only apply to such Holder and no other Holder. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Series D Preferred Stock. Notwithstanding the foregoing, however, a Holder that beneficially owned in excess of 19.99% of the Corporation’s Common Stock as of the Original Issue Date shall not be subject to the Beneficial Ownership Limitation set forth herein, unless subsequent to the Original Issue Date, such Holder’s beneficial ownership of the Common Stock of the Corporation decreases to a level below 19.99%, in which event the provisions of this Section 7 shall become applicable to such Holder.

(c) Notwithstanding anything else set forth herein, if required under applicable law or regulation (including the listing rules of the Nasdaq Stock Market), in no event shall (i) the Corporation be permitted to effect a Mandatory Conversion, (ii) a Holder of shares of Series D Preferred Stock be entitled to convert such shares of Series D Preferred Stock into shares of Common Stock, or (iii) the Corporation be permitted to issue any shares of Common Stock as Dividend Shares, if and to the extent that the issuance of such shares of Common Stock would cause the Corporation to exceed the aggregate number of shares of Common Stock which the Corporation may issue or be deemed to have issued without breaching the Corporation’s obligations under the applicable rules and regulations of the Nasdaq Stock Market (including, without limitation, Nasdaq Listing Rule 5635) and such other Trading Market (as defined in the Purchase Agreement) on which the Corporation’s shares of Common Stock are then listed or quoted for trading (the “ Exchange Cap ”), unless any issuances in excess of the foregoing limitation are approved by the Corporation’s common stockholders. Until such approval is obtained, no Holder of Series D Preferred Stock shall be issued in the aggregate, whether upon conversion of shares of Series D Preferred Stock or as Dividend Shares, shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the number of shares of Series D Preferred Stock issued to such Holder as of the Original Issuance Date and the denominator of which is the aggregate number of all shares of Series D Preferred Stock issued to the Holders as of the Original Issuance Date (with respect to each such Holder, the “ Exchange Cap Allocation ”). In the event that any Holder shall sell or otherwise transfer any of such Holder’s shares of Series D Preferred Stock, the transferee shall be allocated a pro rata portion of such Holder’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee.

Voting Rights

The Holders of record of shares of Series D Preferred Stock shall not be entitled to any voting rights except as follows:

(a) so long as any shares of Series D Preferred Stock shall be outstanding and unless the consent or approval of a greater number of shares shall then be required under the Delaware General Corporation Law, without first obtaining the approval of at least the Majority Holders, given in person or by proxy either by written consent or at a meeting at which the Holders shall be entitled to vote separately as a class, the Corporation shall not (i) amend, alter or repeal any provisions of the Series D Preferred Stock or Certificate of Incorporation so as to materially adversely affect any of the preferences, rights, powers or privileges of the Series D Preferred Stock or the holders thereof, (ii) create, authorize or issue

any other class or series of preferred stock on a parity with, or having greater or preferential rights than, the Series D Preferred Stock with respect to liquidation or dividends, (iii) directly or indirectly, redeem, repurchase or otherwise acquire for value, or set aside for payment or make available for a sinking fund for the purchase or redemption of, any stock ranking junior to on a parity with the Series D Preferred Stock, or (iv) enter into any agreement which would prohibit or restrict the Corporation’s right to pay dividends on the Series D Preferred Stock; and

(b) as otherwise provided by the Delaware General Corporation Law.

Exclusion of Other Rights

Except as may otherwise be required by law, the shares of Series D Preferred Stock shall not have any rights, other than those specifically set forth in this resolution (as such resolution may be amended from time to time) and in the Corporation’s Certificate of Incorporation.

10.

Headings of Subdivisions

The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

11.

Severability of Provisions

If any right, preference or limitation of the Series D Preferred Stock set forth in this Certificate of Designation (as such may be amended from time to time) is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other rights, preferences and limitations set forth in this resolution (as so amended) which can be given effect without the invalid, unlawful or unenforceable right, preference or limitation shall, nevertheless, remain in full force and effect, and no right, preference or limitation herein set forth shall be deemed dependent upon any other such right, preference or limitation unless so expressed herein.

12.

Transfer of Series D Preferred Stock

Upon notice to the Corporation, a Holder may sell, transfer, assign, pledge or otherwise dispose of all or any portion of the shares of Series D Preferred Shares to any person or entity as long as such transaction is the subject of an effective registration statement under the Securities Act of 1933, as amended, or, in the opinion of counsel acceptable to the Corporation, is exempt from registration. From and after the date of any such sale or transfer, the transferee thereof shall be deemed to be a Holder. Upon any such sale or transfer, the Corporation shall, promptly following the return of the certificate or certificates representing the shares of Series D Preferred Stock that are the subject of such sale or transfer, issue and deliver to such transferee a new certificate in the name of such transferee.

13.

Status of Reacquired Shares

Shares of Series D Preferred Stock which have been issued and reacquired in any manner or converted (upon compliance with any applicable provisions of the laws of the State of Delaware) shall not be reissued as Series D Preferred Stock, but shall have the status of authorized and unissued shares of Preferred Stock issuable in series undesignated as to series and may be redesignated and reissued.

14.

Notices

Any notice, demand or request required or permitted to be given by the Corporation or a Holder pursuant to the terms of this Certificate of Designations shall be in writing and shall be deemed delivered (i) when delivered personally or by verifiable facsimile transmission (immediately followed by written confirmation delivered according to another mechanism provided by this section), unless such delivery is made on a day that is not a Business Day, in which case such delivery will be deemed to be made on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to an overnight courier and (iii) on the third Business Day following the date of dispatch, if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid), addressed, if to the Corporation:

Authentidate Holding Corp.

300 Connell Drive, 5th Floor

Berkeley Heights, New Jersey 07922

Attention: President

and if to any Holder, at the address indicated in the stock register of the Corporation.

15.

Lost or Stolen Certificates

Upon receipt by the Corporation of evidence of the loss, theft, destruction or mutilation of a certificate representing a Holder’s shares of Series D Preferred Stock, and (in the case of loss, theft or destruction) of indemnity or security reasonably satisfactory to the Corporation, and upon surrender and cancellation of such certificate if mutilated, the Corporation shall execute and deliver to such Holder a new certificate identical in all respects to the original certificate, and any such lost, stolen, destroyed or mutilated certificate shall thereupon become void.

16.

Failure or Delay not Waiver

No failure or delay on the part of the Corporation or a Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any other or further exercise thereof or of any other right, power or privilege.

17.

Payments

Notwithstanding anything to the contrary herein, to the extent that any provision of this Certificate of Designation permits the Corporation to make a payment to the Holders, at the Corporation’s option, in cash or in shares of Common Stock, the Corporation shall only be permitted to make any portion of such payment in shares of Common Stock if such payment in shares is permissible pursuant to Section 7(c) of this Certificate of Designation, unless the Corporation’s common stockholders have approved such issuances.

18.

Inclusion in Certificate of Incorporation.

The statements contained herein creating and designating the Series D Preferred Stock and fixing the number, powers, preferences and relative, optional, participating, and other special rights and the qualifications, limitations, restrictions, and other distinguishing characteristics thereof shall, upon the effective date of said series, be deemed to be included in and be a part of the Certificate of Incorporation of the Corporation pursuant to the applicable provisions of the Delaware General Corporation Law.

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Designation of the Series D Convertible Preferred Stock and hereunto affixed the seal of the Corporation on this 12 ^th day of June, 2013.


/s/ O’Connell Benjamin
Name:		O’Connell Benjamin
Title:		Chief Executive Officer and President

EXHIBIT A

NOTICE OF CONVERSION

(TO BE EXECUTED BY THE REGISTERED HOLDER

IN ORDER TO CONVERT SHARES OF PREFERRED STOCK)

Pursuant to Section 6(a) of the Certificate of Designations, Preferences and Rights and Number of Shares of Series D Convertible Preferred Stock, the undersigned hereby elects to convert the number of shares of Series D Convertible Preferred Stock indicated below into shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Authentidate Holding Corp., a Delaware corporation (the “ Corporation ”), according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.

Conversion calculations:


Date to Effect Conversion:



Number of shares of Preferred Stock owned prior to Conversion:



Number of shares of Preferred Stock to be Converted:



Stated Value of shares of Preferred Stock to be Converted:



Number of shares of Common Stock to be Issued:



Applicable Conversion Price:



Number of shares of Preferred Stock subsequent to Conversion:



DWAC Instructions:


Broker no:


Account no:


[NAME OF HOLDER]

By:
		Name:
		Title:

Exhibit 4.1

WARRANT AGREEMENT

THIS WARRANT AGREEMENT (this “Warrant Agreement”), dated as of June , 2013 (the “Issuance Date”), is entered into by and between Authentidate Holding Corp., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Warrant Agent”).

WHEREAS, the Company has sold units (the “Units”), each consisting of one share of common stock, par value $0.001 per share (the “Common Stock”), of the Company and one warrant to purchase one share of Common Stock at an exercise price of $0.95 per share (each, a “Warrant Share” and, collectively, the “Warrant Shares”) subject to adjustment as described herein (each, a “Warrant” and, collectively, the “Warrants”), pursuant to an Underwriting Agreement between the Company and J. P. Turner & Co., L.L.C., as the Underwriter, dated June 11, 2013 (the “Underwriting Agreement”); and

WHEREAS, both the Common Stock and the Warrants underlying the Units were issued by the Company in a public offering pursuant to an effective shelf registration statement on Form S-3, Registration No. 333-183093 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), and a related base prospectus and prospectus supplement; and

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:

1. Appointment of Warrant Agent . The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.

2. Warrants .

2.1 Form of Warrant . Each Warrant shall be (a) issued in registered form only, (b) in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein, and (c) signed by, or bear the facsimile signature of the Chief Executive Officer, President, Chief

Financial Officer, or the Secretary of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.

2.2 Effect of Countersignature . Unless and until countersigned by the Warrant Agent pursuant to this Warrant Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.

2.3 Registration .

2.3.1 Warrant Register . The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of the original issuance and transfers of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. The Warrants may be represented by definitive Warrant Certificates in physical form or by one or more book-entry warrant certificates (the “Book-Entry Warrant Certificates”) deposited with the Depository Trust Company (the “Depository”) and registered in the name of Cede & Co., a nominee of the Depository. Ownership of beneficial interests in the Book-Entry Warrant Certificates shall be shown on, and the transfer of such ownership shall be effected through, records maintained (i) by the Depository or its nominee for each Book-Entry Warrant Certificate; (ii) by institutions that have accounts with the Depository (such institution, with respect to a Warrant in its account, a “Participant”); or (iii) directly on the book-entry records of the Warrant Agent with respect only to owners of beneficial interests that request such direct registration. If the Depository subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement within ten (10) days after the Depository ceases to make its book-entry settlement available. In the event that the Company does not make alternative arrangements for book-entry settlement within ten (10) days or the Warrants are not eligible for, or it is no longer necessary to have the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depository to deliver to the Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depository definitive Warrant Certificates in physical form evidencing such Warrants.

2.3.2 Registered Holder; Beneficial Owner . Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant shall be registered upon the Warrant Register (the “registered holder”), as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the warrant certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. The term “beneficial owner” shall mean any person in whose name ownership of a beneficial interest in the Warrants evidenced by (a) a Book-Entry Warrant Certificate is recorded in the records maintained by the Depository or its nominee or (b) a definitive Warrant Certificate is recorded in the book-entry records of the Warrant Agent.

2.3.3 Detachability of Warrants . The securities comprising the Units will be issued separately and will be separately transferable immediately upon issuance.

2.3.4 Uncertificated Warrants . Notwithstanding the foregoing and anything else herein to the contrary, the Warrants may be issued in uncertificated form if so specified by the Company.

3. Terms and Exercise of Warrants .

3.1 Exercise Price . Each Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the provisions of such Warrant, and, as the case may be, and of this Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $0.95 per whole share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Exercise Price” as used in this Warrant Agreement refers to the price per share at which Common Stock may be purchased at the time a Warrant is exercised. The Company, in its sole discretion, may lower the Exercise Price at any time prior to the Expiration Date (as defined below).

3.2 Duration of Warrants . A Warrant may be exercised only during the period (“Exercise Period”) commencing on the Issuance Date and terminating at 5:00 p.m., New York City time on June 17, 2018 (the “Expiration Date”). Each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the close of business on the Expiration Date. The Company, in its sole discretion, may extend the duration of the Warrants by delaying the Expiration Date.

3.3 Exercise of Warrants .

3.3.1 Exercise and Payment . A registered holder may exercise a Warrant by delivering, not later than 5:00 P.M., Eastern time, on any Business Day during the Exercise Period (the “ Exercise Date ”) to the Warrant Agent at its corporate trust department (i) the Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the “ Book-Entry Warrants ”) on the records of the Depository to an account of the Warrant Agent at the Depository designated for such purpose in writing by the Warrant Agent to the Depository from time to time, (ii) an election to purchase the Shares underlying the Warrants to be exercised (the “ Election to Purchase ”), properly completed and executed by the registered holder on the reverse of the Warrant Certificate or, in the case of a Book-Entry Warrant Certificate, properly delivered by the Participant in accordance with the Depository’s procedures, and (iii), except as provided in 3.3.8, the Exercise Price for each Warrant to be exercised in lawful money of the United States of America by certified or official bank check or by bank wire transfer in immediately available funds.

If any of (A) the Warrant Certificate or the Book-Entry Warrants, (B) the Election to Purchase, or (C) the Warrant Price therefor, is received by the Warrant Agent after 5:00 P.M., Eastern time, on the specified Exercise Date, the Warrants will be deemed to be received and exercised on the Business Day next succeeding the Exercise Date. If the date specified as the Exercise Date is not a Business Day, the Warrants will be deemed to be received and exercised on the next succeeding day that is a Business Day. If the Warrants are received or deemed to be

received after the Expiration Date, the exercise thereof will be null and void and any funds delivered to the Warrant Agent will be returned to the registered holder or Participant, as the case may be, as soon as practicable. In no event will interest accrue on funds deposited with the Warrant Agent in respect of an exercise or attempted exercise of Warrants. The validity of any exercise of Warrants will be determined by the Company in its sole discretion and such determination will be final and binding upon the registered holder and the Warrant Agent. Neither the Company nor the Warrant Agent shall have any obligation to inform a registered holder of the invalidity of any exercise of Warrants.

The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in the account of the Company maintained with the Warrant Agent for such purpose and shall advise the Company at the end of each day on which funds for the exercise of the Warrants have been received and the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing.

3.3.2 Issuance of Certificates . The Warrant Agent shall, within a reasonable time, advise the Company and the transfer agent and registrar in respect of (a) the Shares issuable upon such exercise as to the number of Warrants exercised in accordance with the terms and conditions of this Agreement, (b) the instructions of each registered holder or Participant, as the case may be, with respect to delivery of the Warrant Shares issuable upon such exercise, and the delivery of definitive Warrant Certificates, as appropriate, evidencing the balance, if any, of the Warrants remaining after such exercise, (c) in case of a Book-Entry Warrant Certificate, the notation that shall be made to the records maintained by the Depository, its nominee for each Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance, if any, of the Warrants remaining after such exercise and (d) such other information as the Company or such transfer agent and registrar shall reasonably require.

The Company shall, by 5:00 P.M., Eastern time, on the third Business Day next succeeding the Exercise Date of any Warrant and the clearance of the funds in payment of the Exercise Price (or upon surrender of the Warrant, or portion thereof, as set forth in Section 3.3.7) (the “ Warrant Shares Delivery Date ”), execute, issue and deliver to the Warrant Agent, the Warrant Shares to which such registered holder or Participant, as the case may be, is entitled, in fully registered form, registered in such name or names as may be directed by such registered holder or the Participant, as the case may be. Upon receipt of such Warrant Shares, the Warrant Agent shall, by 5:00 P.M., Eastern Time, on the third Business Day next succeeding such Exercise Date, transmit such Warrant Shares to or upon the order of the registered holder or Participant, as the case may be. If any such Warrant shall not have been exercised in full, a new countersigned Warrant for the number of shares as to which such Warrant shall not have been exercised shall be delivered to the registered holder or Participant, as the case may be.

In lieu of delivering physical certificates representing the Warrant Shares issuable upon exercise, provided the Company’s transfer agent is participating in the Depository’s Fast Automated Securities Transfer program, the Company shall use its reasonable best efforts to cause its transfer agent to electronically transmit the Warrant Shares issuable upon exercise to the registered holder or the Participant by crediting the account of the registered holder’s prime broker with the Depository or of the Participant through its Deposit Withdrawal Agent Commission system. The time periods for delivery described in the immediately preceding

paragraph shall apply to the electronic transmittals described herein. If the Warrant Agent fails to comply with the preceding paragraphs in this Section 3.3.2 by the Warrant Shares Delivery Date, then the registered holder will have the right to rescind its exercise.

Notwithstanding the foregoing, the Company shall not be obligated to deliver any securities pursuant to the exercise of a Warrant unless (a) a registration statement under the Act with respect to the Common Stock issuable upon exercise of such Warrants is effective and a current prospectus relating to the shares of Common Stock issuable upon exercise of the Warrants is available for delivery to the Warrant holders or (b) in the opinion of counsel to the Company, the exercise of the Warrants is exempt from the registration requirements of the Act and such securities are qualified for sale or exempt from qualification under applicable securities laws of the states or other jurisdictions in which the registered holder resides. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which such exercise or issuance would be unlawful. In the event that a registration statement under the Act with respect to the Common Stock underlying the Warrants is not effective or a current prospectus is not available, or because such exercise would be unlawful with respect to a registered holder in any state, the registered holder shall not be entitled to exercise such Warrants and such Warrants may have no value and expire worthless.

3.3.3 Valid Issuance . All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Warrant Agreement shall be validly issued, fully paid and nonassessable.

3.3.4 Date of Issuance . Each person in whose name any such certificate for shares of Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open.

3.3.5 No Fractional Exercise . No fractional Warrant Shares shall be issued upon the exercise of any Warrant. As to any fraction of a Warrant Share which the registered holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such fraction in an amount equal to such fraction multiplied by the Exercise Price or round up such fraction to the nearest whole share. If fewer than all of the Warrants evidenced by a Warrant Certificate are exercised, a new Warrant Certificate for the number of unexercised Warrants remaining shall be executed by the Company and countersigned by the Warrant Agent as provided in Section 2 of this Warrant Agreement, and delivered to the holder of this Warrant Certificate at the address specified on the books of the Warrant Agent or as otherwise specified by such registered holder. If fewer than all the Warrants evidenced by a Book-Entry Warrant Certificate are exercised, a notation shall be made to the records maintained by the Depository, its nominee for each Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise.

3.3.6 No Transfer Taxes . The Company shall not be required to pay any stamp or other tax or governmental charge required to be paid in connection with any transfer involved

in the issue of the Warrant Shares upon the exercise of Warrants; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Shares until such tax or other charge shall have been paid or it has been established to the Company’s satisfaction that no such tax or other charge is due.

3.3.7 Optional Cashless Exercise . If at any time during the term of this Warrant there is no effective Registration Statement registering, or no current prospectus available for, the issuance or resale of the Warrant Shares by the registered holder, then this Warrant may also be exercised at such time by means of a “cashless exercise” in which the registered holder shall be entitled to receive a certificate for the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:


(A)		= the VWAP (as defined below) on the Trading Day immediately preceding the date of such election;

(B)		= the Exercise Price of this Warrant, as adjusted; and

(X)		= the number of Warrant Shares issuable upon exercise of this Warrant in accordance with the terms of this Warrant by means of a cash exercise rather than a cashless exercise.

The term “ VWAP ” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market (as defined below), the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (Eastern time), (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink Sheets, LLC (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Warrant Agent and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

The term “ Trading Market ” means any of the following U.S. markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE, NYSE AMEX, the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (or any successors to any of the foregoing).

3.3.8 Disputes . In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to the registered holder the number of Warrant Shares that are not disputed.

3.3.9 Limitations on Exercise . The Warrant Agent shall not effect any exercise of this Warrant, and a registered holder shall not have the right to exercise any portion of this Warrant to the extent that after giving effect to such issuance after exercise as set forth on the applicable exercise notice, the registered holder (together with the registered holder’s Affiliates, and any other person or entity acting as a group together with the registered holder or any of the registered holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the registered holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) exercise of the remaining, non-exercised portion of this Warrant beneficially owned by the registered holder or any of its Affiliates and (B) exercise or conversion of the unexercised or non-converted portion of any other securities of the Company (including, without limitation, any other equity equivalent securities) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the registered holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 3.3.9, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder (the “ Exchange Act ”), it being acknowledged by the registered holder that the Company is not representing to the registered holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the registered holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 3.3.9 applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the registered holder together with any Affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the registered holder, and the submission of an exercise notice shall be deemed to be the registered holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the registered holder together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject the Beneficial Ownership Limitation, and the Company and the Warrant Agent shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act. For purposes of this Section 3.3.9, in determining the number of outstanding shares of Common Stock, a registered holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report as the case may be, (B) a more recent public announcement by the Company or (C) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a registered holder, the Company shall within three (3) Business Days confirm orally and in writing to the registered holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the registered holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported.

The “ Beneficial Ownership Limitation ” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The registered holder, upon not less than sixty one

(61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the registered holder and the provisions of this Section 3.3.9 shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this Section 3.3.9 shall be construed, corrected and implemented in a manner so as to effectuate the intended Beneficial Ownership Limitation herein contained. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

4. Adjustments .

4.1 Stock Dividends - Split-Ups . If, after the date hereof but prior to the Expiration Date, and subject to the provisions of Section 4.6 below, the number of outstanding shares of Common Stock of the Company is increased by a stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock, or other similar event, then, on the effective date of such stock dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding shares of Common Stock.

4.2 Aggregation of Shares . If, after the date hereof but prior to the Expiration Date, and subject to the provisions of Section 4.6, the number of outstanding shares of Common Stock of the Company is decreased by a consolidation, combination, reverse stock split or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.

4.3 Adjustments in Exercise Price . Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above, the Exercise Price shall be adjusted (to the nearest cent) by multiplying such Exercise Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock purchasable under the Warrants immediately thereafter.

4.4 Replacement of Securities upon Reorganization, etc . In case of any reclassification or reorganization of the outstanding shares of Common Stock (other than a change covered by Section 4.1 or 4.2 hereof or one that solely affects the par value of such shares of Common Stock), or, in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or, in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety, in connection with which the Company is dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the

Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event; and if any reclassification also results in a change in shares of Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.

4.5 Notices of Changes in Warrant . Upon every adjustment of the Exercise Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

4.6 No Fractional Shares . Notwithstanding any provision contained in this Warrant Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round up or down to the nearest whole number the number of shares of Common Stock to be issued to the Warrant holder.

4.7 Form of Warrant . The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Exercise Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Warrant Agreement. However, the Company may, at any time, in its sole discretion, make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.

5. Transfer and Exchange of Warrants.

5.1 Registration of Transfer . The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant in the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly medallion guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled may be delivered by the Warrant Agent to the Company from time to time upon request.

5.2 Procedure for Surrender of Warrants . Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or in any Book-Entry Warrant Certificate, each Book-Entry Warrant Certificate may be transferred only in whole and only to the Depository, to another nominee of the Depository, to a successor depository, or to a nominee of a successor depository; provided further, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend. Upon any such registration of transfer, the Company shall execute, and the Warrant Agent shall countersign and deliver, in the name of the designated transferee a new Warrant Certificate or Warrant Certificates of any authorized denomination evidencing in the aggregate a like number of unexercised Warrants.

5.3 Fractional Warrants . The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate for a fraction of a warrant.

5.4 Service Charges . No service charge shall be made for any exchange or registration of transfer of Warrants.

5.5 Warrant Execution and Countersignature . The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.

6. Other Provisions Relating to Rights of Holders of Warrants .

6.1 No Rights as Stockholder . Except as otherwise specifically provided herein, a registered holder, solely in its capacity as a holder of a Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant Agreement be construed to confer upon a registered holder, solely in its capacity as the registered holder of a Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the registered holder of the Warrant Shares which it is then entitled to receive upon the due exercise of a Warrant. A Warrant does not entitle the registered holder thereof to any of the rights of a stockholder.

6.2 Lost, Stolen, Mutilated, or Destroyed Warrants . If any Warrant is lost, stolen, mutilated or destroyed, the Company and the Warrant Agent may, on such terms as to indemnity or otherwise as they may in their discretion impose (which terms shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor and

date as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by anyone.

6.3 Reservation of Common Stock . The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Warrant Agreement.

7. Concerning the Warrant Agent and Other Matters .

7.1 Payment of Taxes . The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.

7.2 Resignation, Consolidation, or Merger of Warrant Agent .

7.2.1 Appointment of Successor Warrant Agent . The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his, her or its Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.

7.2.2 Notice of Successor Warrant Agent . In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Common Stock not later than the effective date of any such appointment.

7.2.3 Merger or Consolidation of Warrant Agent . Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.

7.3 Fees and Expenses of Warrant Agent .

7.3.1 Remuneration . The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.

7.3.2 Further Assurances . The Company agrees to perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Warrant Agreement.

7.4 Liability of Warrant Agent .

7.4.1 Reliance on Company Statement . Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, Chief Financial Officer, President or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.

7.4.2 Indemnity . The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.

7.4.3 Exclusions . The Warrant Agent shall have no responsibility with respect to the validity of this Warrant Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Warrant Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Warrant Agreement or any Warrant or as to whether any shares of Common Stock will when issued be valid and fully paid and nonassessable.

7.5 Acceptance of Agency . The Warrant Agent hereby accepts the agency established by this Warrant Agreement and agrees to perform the same upon the terms and conditions herein set forth and, among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent for the purchase of shares of Common Stock through the exercise of Warrants.

8. Miscellaneous Provisions .

8.1 Successors . All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

8.2 Notices . Any notice, statement or demand authorized by this Warrant Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be delivered by hand or sent by registered or certified mail or overnight courier service, addressed (until another address is filed in writing by the Company with the Warrant Agent) as follows:

Authentidate Holding Corp.

Connell Corporate Park

300 Connell Drive, 5 ^th Floor

Berkeley Heights, NJ 07922

Attn: Chief Financial Officer

Any notice, statement or demand authorized by this Warrant Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be delivered by hand or sent by registered or certified mail or overnight courier service, addressed (until another address is filed in writing by the Warrant Agent with the Company) as follows:

Continental Stock Transfer & Trust Company

17 Battery Place

New York, New York 10004

Attn: Compliance Department

with a copy in each case to:

Becker & Poliakoff, LLP

45 Broadway, 8 ^th Floor

New York, New York 10006

Attn: Michael A. Goldstein, Esq.

Any notice, sent pursuant to this Warrant Agreement shall be effective, if delivered by hand, upon receipt thereof by the party to whom it is addressed, if sent by overnight courier, on the next business day of the delivery to the courier, and if sent by registered or certified mail on the third day after registration or certification thereof.

8.3 Applicable Law . The validity, interpretation and performance of this Warrant Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Warrant Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.

8.4 Persons Having Rights under this Agreement . Nothing in this Warrant Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants, any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the registered holders of the Warrants.

8.5 Examination of the Warrant Agreement . A copy of this Warrant Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his, her or its Warrant for inspection by it.

8.6 Counterparts . This Warrant Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

8.7 Effect of Headings . The section headings herein are for convenience only and are not part of this Warrant Agreement and shall not affect the interpretation thereof.

8.8 Amendments . This Warrant Agreement may be amended by the parties hereto without the consent of any registered holder: (i) for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or (ii) adding or changing any other provisions with respect to matters or questions arising under this Warrant Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment to increase the Exercise Price or shorten the Exercise Period, shall

require the written consent of the registered holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Exercise Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders.

8.9 Severability . Whenever possible, each provision of this Warrant Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Warrant Agreement.

8.10 Certain Definitions . For purposes of this Warrant Agreement, the following terms shall have the following meanings:

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

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

8.10.3 “ Common Stock ” means (i) the Company’s shares of Common Stock and (ii) any share capital into which such Common Stock shall have been changed or any share capital resulting from a reclassification of such Common Stock.

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

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

[Signature page follows]

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.


AUTHENTIDATE HOLDING CORP.

By:
Name:
Title:

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

By:
Name:
Title:

EXHIBIT A

[FORM OF WARRANT CERTIFICATE]

EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT

AGENT AS PROVIDED HEREIN.

Warrant Certificate Evidencing Warrants to Purchase

Common Stock, par value of $0.001 per share, as described herein.

Cusip No. 052666 146

AUTHENTIDATE HOLDING CORP.

No.

VOID AFTER 5:00 P.M., NEW YORK TIME,

ON JUNE 17, 2018

This certifies that or registered assigns is the registered holder of warrants to purchase certain securities (each a “ Warrant ”). Each Warrant entitles the holder thereof, subject to the provisions contained herein and in the Warrant Agreement (as defined below), to purchase from Authentidate Holding Corp., a Delaware corporation (the “ Company ”), [ ] shares (collectively, the “ Warrant Shares ”) of Common Stock, par value $0.001 per share, of the Company (“ Common Stock ”), at the Exercise Price set forth below. The price per share at which each Warrant Share may be purchased at the time each Warrant is exercised (the “ Exercise Price ”) is $0.95 initially, subject to adjustments as set forth in the Warrant Agreement (as defined below).

Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Warrant Agreement.

Subject to the terms of the Warrant Agreement, each Warrant evidenced hereby may be exercised at any time, as specified herein, on any Business Day (as defined below) occurring during the period (the “ Exercise Period ”) commencing the date hereof and terminating at 5:00 P.M., New York City time, on June 17, 2018 (the “ Expiration Date ”). Each Warrant remaining unexercised after 5:00 P.M., New York City time, on the Expiration Date shall become void, and all rights of the holder of this Warrant Certificate evidencing such Warrant shall cease.

The holder of the Warrants represented by this Warrant Certificate may exercise any Warrant evidenced hereby by delivering, not later than 5:00 P.M., New York time, on any Business Day during the Exercise Period (the “ Exercise Date ”) to Continental Stock Transfer & Trust Co. (the “ Warrant Agent ”, which term includes any successor warrant agent under the Warrant Agreement described below) at its office designated for such purpose at 17 Battery Place, New York, NY 10004, (i) this Warrant Certificate or, in the case of a Book-Entry Warrant Certificate (as defined in the Warrant Agreement), the Warrants to be exercised (the “ Book-Entry Warrants ”) as shown on the records of The Depository Trust Company (the

“ Depository ”) to an account of the Warrant Agent at the Depository designated for such purpose in writing by the Warrant Agent to the Depository, (ii) an election to purchase (“ Election to Purchase ”), properly executed by the holder hereof on the reverse of this Warrant Certificate or properly executed by the institution in whose account the Warrant is recorded on the records of the Depository (the “ Participant ”), and substantially in the form included on the reverse of this Warrant Certificate and (iii) the Exercise Price for each Warrant to be exercised, and all applicable taxes and charges due in connection therewith, in lawful money of the United States of America by certified or official bank check or by bank wire transfer in immediately available funds.

As used herein, the term “ Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law or executive order to remain closed.

Warrants may be exercised only in whole numbers of Warrants. No fractional Warrant Shares are to be issued upon the exercise of this Warrant, but rather the number of Warrant Shares to be issued shall be rounded up or down, as applicable, to the nearest whole number. If fewer than all of the Warrants evidenced by this Warrant Certificate are exercised, a new Warrant Certificate for the number of Warrants remaining unexercised shall be executed by the Company and countersigned by the Warrant Agent as provided in Section 2 of the Warrant Agreement, and delivered to the registered holder of this Warrant Certificate at the address specified on the books of the Warrant Agent or as otherwise specified by such registered holder.

This Warrant Certificate is issued under and in accordance with the Warrant Agreement, dated as of June , 2013 (the “ Warrant Agreement ”), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the holder of this Warrant Certificate and the beneficial owners of the Warrants represented by this Warrant Certificate consent by acceptance hereof. Copies of the Warrant Agreement are on file and can be inspected at the above-mentioned office of the Warrant Agent and at the office of the Company at Connell Corporate Center, 300 Connell Drive, Suite 5100, Berkeley Heights, NJ 07922.

The Company shall provide to the registered holder prompt written notice of any time that the Company is unable to issue the Warrant Shares via DTC transfer or otherwise (without restrictive legend), because (A) the Commission has issued a stop order with respect to the Registration Statement, (B) the Commission otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, (C) the Company has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or (D) otherwise (each a “ Restrictive Legend Event ”). To the extent that a Restrictive Legend Event occurs after the registered holder has exercised a Warrant in accordance with the terms of the Warrants but prior to the delivery of the Warrant Shares, the Company shall, at the election of the registered holder, which shall be given within five (5) days of receipt of notice of the Restrictive Legend Event, either (A) rescind the previously submitted Election to Purchase and the Company shall return all consideration paid by registered holder for such shares upon such rescission or (B) treat the attempted exercise as a cashless exercise as described in the Warrant Agreement.

The Exercise Price and the number of Warrant Shares purchasable upon the exercise of each Warrant shall be subject to adjustment as provided pursuant to Section 4 of the Warrant Agreement.

Upon due presentment for registration of transfer or exchange of this Warrant Certificate at the office of the Warrant Agent designated for such purpose, the Company shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 5 of the Warrant Agreement, in the name of the designated transferee one or more new Warrant Certificates of any authorized denomination evidencing in the aggregate a like number of unexercised Warrants, subject to the limitations provided in the Warrant Agreement.

Neither this Warrant Certificate nor the Warrants evidenced hereby entitles the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.

The Warrant Agreement and this Warrant Certificate may be amended as provided in the Warrant Agreement including, under certain circumstances described therein, without the consent of the holder of this Warrant Certificate or the Warrants evidenced thereby.

THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER THE WARRANT AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS FORMED AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

This Warrant Certificate shall not be entitled to any benefit under the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant evidenced hereby may be exercised, unless this Warrant Certificate has been countersigned by the manual signature of the Warrant Agent.

IN WITNESS WHEREOF , the Company has caused this instrument to be duly executed.

Dated as of June , 2013


AUTHENTIDATE HOLDING CORP.

By:
Name:
Title:


Continental Stock Transfer & Trust Co., as Warrant Agent

By:
Name:
Title:

[REVERSE]

Instructions for Exercise of Warrant

To exercise the Warrants evidenced hereby, the holder or Participant must, by 5:00 P.M., New York time, on the specified Exercise Date, deliver to the Warrant Agent at its stock transfer division, a certified or official bank check or a bank wire transfer in immediately available funds, in each case payable to the Warrant Agent at Account No. , in an amount equal to the Exercise Price in full for the Warrants exercised, and all applicable taxes and charges due in connection therewith. In addition, the Warrant holder or Participant must provide the information required below and deliver this Warrant Certificate to the Warrant Agent at the address set forth below and the Book-Entry Warrants to the Warrant Agent in its account with the Depository designated for such purpose. The Warrant Certificate and this Election to Purchase must be received by the Warrant Agent by 5:00 P.M., New York time, on the specified Exercise Date.

ELECTION TO PURCHASE

TO BE EXECUTED IF WARRANT HOLDER DESIRES

TO EXERCISE THE WARRANTS EVIDENCED HEREBY

The undersigned hereby irrevocably elects to exercise, on , (the “ Exercise Date ”), Warrants, evidenced by this Warrant Certificate, to purchase, shares (the “ Warrant Shares ”) of Common Stock, par value of $0.001 per share (the “ Common Stock ”) of Authentidate Holding Corp., a Delaware corporation (the “ Company ”), and represents that on or before the Exercise Date.

The undersigned requests that said number of Warrant Shares be in fully registered form, registered in such names and delivered, all as specified in accordance with the instructions set forth below.

If said number of Warrant Shares is less than all of the Warrant Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate evidencing the remaining balance of the Warrants evidenced hereby be issued and delivered to the holder of the Warrant Certificate unless otherwise specified in the instructions below.

Dated: ,


		Name
				(Please Print)

		/ / / / - / / /- / / / / /
		(Insert Social Security or Other Identifying Number of Holder)

		Address


		Signature

This Warrant may only be exercised by presentation to the Warrant Agent at one of the following locations:

By hand at:

By mail at:

The method of delivery of this Warrant Certificate is at the option and risk of the exercising holder and the delivery of this Warrant Certificate will be deemed to be made only when actually received by the Warrant Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to assure timely delivery.

(Instructions as to form and delivery of Warrant Shares and/or Warrant Certificates)


Name in which Warrant Shares are to be registered if other than in the name of the registered holder of this Warrant Certificate:

Address to which Warrant Shares are to be mailed if other than to the address of the registered holder of this Warrant Certificate as shown on the books of the Warrant Agent:
				(Street Address)


				(City and State) (Zip Code)

Name in which Warrant Certificate evidencing unexercised Warrants, if any, are to be registered if other than in the name of the registered holder of this Warrant Certificate:


Address to which certificate representing unexercised Warrants, if any, are to be mailed if other than to the address of the registered holder of this Warrant Certificate as shown on the books of the Warrant Agent:
				(Street Address)


				(City and State) (Zip Code)

				Dated:


				Signature

				Signature must conform in all respects to the name of the holder as specified on the face of this Warrant Certificate. If Warrant Shares, or a Warrant Certificate evidencing unexercised Warrants, are to be issued in a name other than that of the registered holder hereof or are to be delivered to an address other than the address of such holder as shown on the books of the Warrant Agent, the above signature must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Warrant Agent. A notary public is not sufficient.


SIGNATURE GUARANTEE

Name of Firm
Address
Area Code and Number
Authorized Signature
Name
Title
Dated:		, 20

ASSIGNMENT

(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER

DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)

FOR VALUE RECEIVED, HEREBY SELL(S), ASSIGN(S) AND TRANSFER(S) UNTO




(Please print name and address including zip code of assignee)				(Please insert social security or other identifying number of assignee)

the rights represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint Attorney to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution in the premises.

Dated:

Signature

(Signature must conform in all respects to the name of the holder as specified on the face of this Warrant Certificate and must bear a signature guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Warrant Agent.


SIGNATURE GUARANTEE

Name of Firm
Address
Area Code and Number
Authorized Signature
Name
Title
Dated:		, 20

Exhibit 4.2

LOGO

NUMBER D INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE SHARES

AUTHENTIDATE HOLDING CORP.

PAR VALUE $.10 EACH

SERIES D CONVERTIBLE PREFERRED STOCK

See Reverse for Certain Definitions

This is to Certify that is the owner of

FULLY PAID AND NON-ASSESSABLE SHARES OF SERIES D CONVERTIBLE PREFERRED STOCK OF AUTHENTIDATE HOLDING CORP.

transferable on the books of the Corporation by the holder hereof in person or by duly authorized Attorney upon surrender of this Certificate properly endorsed. Witness, the seal of the Corporation and the signatures of its duly authorized officers.

Dated

PRESIDENT

CHIEF FINANCIAL OFFICER

LOGO

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM - as tenants in common UNIF TRANSFERS MIN ACT- Custodian

(Cust) (Minor)

TEN ENT - as tenants by the entireties under Uniform Transfers to Minors Act

JT TEN - as joint tenants with right of survivorship and not as tenants in common (State)

Additional abbreviations may also be used though not in the above list

For value received hereby sell, assign and transfer unto

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)

Shares represented by the within Certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said Shares on the books of the within named Corporation with full power of substitution in the premises.

Dated

In presence of

NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE OR EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.

Exhibit 4.3

NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT (AS DEFINED BELOW), OR APPLICABLE STATE SECURITIES LAWS, AND 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, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT (II) UNLESS SOLD OR TRANSFERRED TO A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT OR (III) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.

AUTHENTIDATE HOLDING CORP.

COMMON STOCK PURCHASE WARRANT


No. 2013 - D -		June , 2013

THIS CERTIFIES THAT, for value received, the Holder is entitled to purchase, and AUTHENTIDATE HOLDING CORP. , a Delaware corporation (the “ Company ”), promises and agrees to sell and issue to the Holder, at any time, or from time to time, during the Exercise Period, up to shares of Common Stock, par value $0.001 per share (the “ Common Stock ”), of the Company, at the Exercise Price, subject to the provisions and upon the terms and conditions hereinafter set forth. This Warrant is one of the Warrants issued by the Company pursuant to that certain Securities Purchase Agreement dated as of June 11, 2013 (the “ Purchase Agreement ”) pursuant to which the Company has offered and sold to the purchasers named therein units of the Company’s securities consisting of shares of Series D Convertible Preferred Stock and a common stock purchase warrant.

1. Definitions of Certain Terms . In addition to the terms defined elsewhere in this Warrant, the following terms have the following meanings:

(a) “ Business Day ” means a day on which banks are open for business in the city of New York.

(b) “ Commission ” means the U.S. Securities and Exchange Commission.

(c) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

(d) “ Exercise Price ” means the price at which the Holder may purchase one share of Common Stock upon exercise of this Warrant as determined from time to time pursuant to the provisions hereof. The initial Exercise Price is $0.95 per share, subject to adjustment as provided herein.

(e) “ Expiration Date ” means the 54-month anniversary of the Initial Exercise Date.

(f) “ Holder ” means a record holder of the Warrant or shares of Common Stock obtained or obtainable upon exercise of the Warrant, as applicable. The initial Holder is .

(g) “ Initial Exercise Date ” means the first Business Day following the six-month anniversary of the Issue Date.

(h) “ Issue Date ” means June , 2013.

(i) “ Securities Act ” means the Securities Act of 1933, as amended.

(j) “ Warrant ” means this Common Stock purchase warrant and any warrant or warrants hereafter issued as a consequence of the exercise or transfer of this warrant in whole or in part.

2. Exercise of Warrant .

(a) Manner of Exercise .

(i) Cash Exercise . This Warrant may be exercised, in whole or in part, at any time or from time to time, during the period commencing as of 9:30:01 a.m., New York time, on the Initial Exercise Date and ending as of 5:30 p.m., New York time, on the Expiration Date (the “ Exercise Period ”), for fully paid and non-assessable shares of Common Stock (the “ Warrant Shares ”), for an exercise price per share equal to the Exercise Price, by delivery to the Company at its headquarters, or at such other place as is designated in writing by the Company, of:

(1) a duly executed Notice of Exercise, substantially in the form of Attachment I attached hereto and incorporated by reference herein;

(2) this Warrant; and

(3) subject to Section 2(a)(ii) below, payment of an amount in cash equal to the product of the Exercise Price multiplied by the number of Warrant Shares being purchased upon such exercise, with such payment being in the form of a wire transfer of immediately available U.S. funds to an account designated in writing by the Company.

The date on which the Company receives the Notice of Exercise, this Warrant, and the Exercise Price payable with respect to the Warrant Shares being purchased shall be deemed to be the date of exercise (the “ Date of Exercise ”).

(ii) Cashless Exercise . Notwithstanding the provisions of Section 2(a)(i)(3) above (requiring payment by wire transfer), the Company agrees that, unless otherwise prohibited by applicable law, the Holder shall have the right to exercise this Warrant in full or in part on a cashless basis, computed using the following formula:

X = Y (A - B)

Where:

X = The number of Warrant Shares to be issued to the Holder pursuant to this cashless exercise;

Y = The number of Warrant Shares in respect of which the net issue election is made;

A = The Fair Market Value (as defined below) of one Warrant Share at the time the cashless exercise election is made; and

B = The Exercise Price then in effect at the time of such exercise.

- 2 -

The term “Fair Market Value” shall mean, on any given day: (A) if the class of Warrant Shares is exchange-traded, the average of the closing sales prices per share of the class of Warrant Shares for the ten (10) consecutive trading days ending on the day that is two (2) trading days prior to the applicable date of determination of Fair Market Value; or (B) if the class of Warrant Shares is not listed or admitted to trading on any securities exchange but is regularly traded in any over-the-counter market, then the average of the bid and ask prices per share of the class of Warrant Shares for the ten (10) consecutive trading days ending on the day that is two (2) trading days prior to the applicable date of determination of Fair Market Value; or (C) if the class of Warrant Shares is not traded as described in clauses (A) or (B), then the per share fair market value of the class of Warrant Shares as determined in good faith by the Company’s Board of Directors.

(b) Delivery of Certificates . Certificates for Warrant Shares purchased hereunder shall be transmitted by the transfer agent of the Company to the Holder by crediting the account of the Holder’s prime broker with the Depository Trust Company (“ DTC ”) through its Deposit Withdrawal Agent Commission system if the Company is a participant in such system and such Warrant Shares are eligible for delivery in such a manner, and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise within three Business Days from the delivery to the Company of the Notice of Exercise, surrender of this Warrant and payment of the aggregate Exercise Price as set forth above (the “ Delivery Period ”). This Warrant shall be deemed to have been exercised on the date on which this Warrant is surrendered and payment of the Exercise Price is received by the Company. The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date on which all of the criteria described in the immediately preceding sentence have occurred, irrespective of the date of delivery of such certificate or certificates, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open. If fewer than all of the Warrant Shares purchasable under the Warrant are purchased, the Company will, upon such partial exercise, execute and deliver to the Holder a new Warrant (dated as of the Issue Date), in the same form and tenor as this Warrant, evidencing that portion of the Warrant not exercised.

(c) Delivery of Electronic Shares . In lieu of delivering physical certificates representing the Warrant Shares issuable upon exercise (provided that the transfer agent is participating in the DTC Fast Automated Securities Transfer program and provided further that the Holder provides the transfer agent with information required in order to issue such Warrant Shares to the Holder electronically), upon the request of the Holder as set forth in the Notice of Exercise, but only if the Warrant Shares may be issued without restrictive legends, the Company shall cause its transfer agent to electronically transmit, within the Delivery Period, the Warrant Shares issuable upon exercise to the Holder by crediting Holder’s account with DTC through its Deposit Withdrawal Agent Commission system. Any delivery not effected by electronic transmission shall be effected by delivery of physical certificates.

(d) No Fractional Shares . If a fractional share of Warrant Shares would, but for the provisions of this Section 2(d) , be issuable upon exercise of the rights represented by this Warrant, the Company shall (i) round a half share or greater to be delivered to Holder up to the next whole share and (ii) round a less-than-half share to be delivered to Holder down to the nearest whole share.

(e) Buy-In . Notwithstanding anything else to the contrary contained herein, in addition to any other rights available to the Holder, if the Company fails to cause its transfer agent to transmit to the Holder a certificate or certificates representing the applicable Warrant Shares purchased upon exercise hereof or credit the Holder’s balance account with DTC, as applicable, on or before the end of the Delivery Period (other than a failure caused by any incorrect or incomplete information provided by

- 3 -

Holder to the Company hereunder), and if after such date the Holder purchases shares of Common Stock to deliver in satisfaction of a sale by the Holder of Warrant Shares that the Holder anticipated receiving from the Company upon exercise of this Warrant (a “ Buy-In ”), then the Company shall, within three Business Days after the Holder’s request, (1) pay cash to the Holder in the amount by which (x) the Holder’s total purchase price (including commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue, by (B) the price at which the sell order giving rise to such purchase obligation was executed, and (2) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored, or deliver to the Holder the number of Warrant Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing the Securities as required pursuant to the terms hereof.

(f) No Charge to Holder Upon Issuance . The issuance of Warrant Shares upon exercise of this Warrant shall be made without charge to Holder for any issuance tax in respect thereof or other cost incurred by the Company in connection with such exercise and the related issuance of Warrant Shares (other than any transfer taxes resulting from the issuance of Warrant Shares to any person other than Holder).

(g) Reservation of Shares . During the Exercise Period, the Company shall reserve and keep available out of its authorized but unissued Common Stock such number of Warrant Shares issuable upon the full exercise of this Warrant. All Warrant Shares which are so issuable shall, when issued and upon the payment of the applicable Exercise Price, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges and not subject to the pre-emptive rights of any holder of Common Stock or any other class or series of stock of the Company. During the Exercise Period, the Company shall not take any action which would cause the number of authorized but unissued Common Stock to be less than the number of such shares required to be reserved hereunder for issuance upon exercise of this Warrant.

(h) Limitations on Exercises .

(i) Notwithstanding anything to the contrary contained in this Warrant, this Warrant shall not be exercisable by the Holder hereof to the extent (but only to the extent) that after giving effect to such issuance after exercise, such Holder or any of its affiliates, as a result of such exercise, would beneficially own in excess of 4.99% (the “ Maximum Percentage ”) of the number of shares of Common Stock outstanding immediately after giving effect to such issuance. To the extent the above limitation applies, the determination of whether this Warrant shall be exercisable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Holder or any of its affiliates) and of which such securities shall be exercisable (as among all such securities owned by the Holder) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. For the purposes of this paragraph, beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the Exchange Act. The limitations contained in this paragraph shall apply to a successor Holder of this

- 4 -

Warrant. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding, including by virtue of any prior conversion or exercise of convertible or exercisable securities into Common Stock. The provisions of this Section 2(h)(i) may be waived by such Holder, at the election of such Holder, upon not less than 61 days’ prior notice to the Company, and the provisions of this Section 2(h)(i) shall continue to apply until such 61st day (or such later date, as determined by such Holder, as may be specified in such notice of waiver). At 12:00 a.m., New York Time, on the 62 ^nd day following the provision of the notice referred to in the preceding sentence, the exercise limitation set forth above shall expire.

(ii) Notwithstanding anything else set forth herein, if required under applicable law or regulation (including the listing rules of the Nasdaq Stock Market), in no event shall this Warrant be exercisable by the Holder to the extent that the Holder or any of its affiliates and any other Person whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), would beneficially own, as a result of such exercise, in excess of 19.99% of the number of shares of the Company’s Common Stock outstanding at the time of such issuance unless any issuances in excess of the foregoing limitation are approved by the Company’s common stockholders.

3. Adjustments in Certain Events . The number, class, and price of Warrant Shares for which this Warrant may be exercised are subject to adjustment from time to time upon the happening of certain events as follows:

(a) Subdivisions, Combinations and Other Issuances . If the outstanding shares of the Company’s Common Stock are divided into a greater number of shares, by forward stock split or otherwise, or a dividend in stock is paid on the Common Stock, then the number of shares of Warrant Shares for which the Warrant is then exercisable will be proportionately increased and the Exercise Price will be proportionately reduced. Conversely, if the outstanding shares of Common Stock are combined into a smaller number of shares of Common Stock, by reverse stock split or otherwise, then the number of Warrant Shares for which the Warrant is then exercisable will be proportionately reduced and the Exercise Price will be proportionately increased. The increases and reductions provided for in this Section 3(a) will be made with the intent and, as nearly as practicable, the effect that neither the percentage of the total equity of the Company obtainable on exercise of the Warrants nor the price payable for such percentage upon such exercise will be affected by any event described in this Section 3(a) .

(b) Merger, Consolidation, Reclassification, Reorganization, Etc . In case of any change in the Common Stock through merger, consolidation, reclassification, reorganization, partial or complete liquidation, purchase of all or substantially all the assets of the Company, or other change in the capital structure of the Company, then, as a condition of such change, lawful and adequate provision will be made so that the Holder will have the right thereafter to receive upon the exercise of the Warrant the kind and amount of shares of stock or other securities or property to which he would have been entitled if, immediately prior to such event, he had held the number of Warrant Shares obtainable upon the exercise of the Warrant. In any such case, appropriate adjustment will be made in the application of the provisions set forth herein with respect to the rights and interest thereafter of the Holder, to the end that the provisions set forth herein will thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the exercise of the Warrant. The Company will not permit any change in its capital structure to occur unless the issuer of the shares of stock or other securities to be received by the Holder, if not the Company, agrees to be bound by and comply with the provisions of this Warrant.

- 5 -

(c) If securities of the Company or securities of any subsidiary of the Company are distributed pro rata to holders of Common Stock, such number of securities will be distributed to the Holder or its assignee upon exercise of its rights hereunder as such Holder or assignee would have been entitled to if this Warrant had been exercised prior to the record date for such distribution. The provisions with respect to adjustment of the Common Stock provided in this Section 3 will also apply to the securities to which the Holder or its assignee is entitled under this Section 3(c) .

4. No Rights as a Stockholder . Nothing contained in this Agreement shall be construed as conferring upon the Holder any rights whatsoever as a stockholder of the Company, either at law or in equity, including without limitation, or Holders the right to vote or to consent or to receive notice as a stockholder in respect of any meetings of stockholders for the election of directors the right to receive dividends or any other matter.

5. Restrictions on Transfer; Legends .

(a) Registration or Exemption Required . Assuming the accuracy of the representations and warranties of the Holder contained in herein, this Warrant has been issued in a transaction exempt from the registration requirements of the Securities Act by virtue of Section 4(2) of the Securities Act and Regulation D promulgated thereunder and exempt from state registration or qualification under applicable state laws. The Holder acknowledges that he has been advised by the Company that this Warrant and the Warrant Shares issuable upon exercise thereof have not been registered under the Securities Act. Neither this Warrant nor the Warrant Shares may be pledged, transferred, sold or assigned except pursuant to an effective registration statement or an exemption to the registration requirements of the Securities Act and applicable state laws. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws, the Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant, as the case may be, furnish to the Company a written opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act and under applicable state securities or blue sky laws, (ii) that the holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

(b) Representations of Holder . The Holder represents and warrants that he has acquired this Warrant and will acquire the Warrant Shares for his own account for investment and not with a view to the sale or distribution thereof or the granting of any participation therein, and that he has no present intention of distributing or selling to others any of such interest or granting any participation therein. The Holder acknowledges that the Warrant and Warrant Shares must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act or registered or qualified under any applicable state securities or “blue-sky” laws or is exempt from registration and/or qualification. The Holder has no need for liquidity in its investment in the Company, and is able to bear the economic risk of such investment for an indefinite period and to afford a complete loss thereof. The Holder is an “accredited investor” as such term is defined in Rule 501 (the provisions of which are known to the Holder) promulgated under the Act.

(c) Restrictive Legend . The Holder understands that until such time as the Warrant Shares have been registered under the Securities Act, or otherwise may be sold pursuant to Rule 144 under the Securities Act or an exemption from registration under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, this Warrant and the

- 6 -

Warrant Shares, as applicable, shall bear a restrictive legend in substantially the form set forth on the cover page of this Warrant (and a stop-transfer order may be placed against transfer of the certificates for such securities).

(d) Disposition of Warrant or Warrant Shares . With respect to any offer, sale or other disposition of this Warrant or any Warrant Shares prior to registration of such Warrant Shares, the Holder agrees to give written notice to the Company prior thereto, describing briefly the manner thereof, together with evidence, reasonably satisfactory to the Company (which shall include such representation of the transferee regarding investment intent as the Company may request, to the effect that such offer, sale or other disposition may be effected without registration or qualification (under the Act as then in effect or any federal or state securities law then in effect) of this Warrant or such Warrant Shares and indicating whether or not under the Securities Act certificates for this Warrant or Warrant Shares to be sold or otherwise disposed of require any restrictive legend as to applicable restrictions on transferability in order to ensure compliance with such law. Upon receiving such written notice and reasonably satisfactory evidence, the Company, as promptly as practicable but no later than seven (7) days after receipt of the written notice, shall notify the Holder that the Holder may sell or otherwise dispose of this Warrant or Warrant Shares, all in accordance with the terms of the notice delivered to the Company. If the Company determines that the evidence is not reasonably satisfactory to the Company, the Company shall so notify the Holder promptly with details thereof after such determination has been made. Notwithstanding the foregoing, any Warrant Shares may be offered, sold or otherwise disposed of in accordance with Rule 144 under the Act and in compliance with the applicable statutory resale restrictions imposed by state securities laws, provided that the Company shall have been furnished with such information as the Company may reasonably request to provide a reasonable assurance that the provisions of Rule 144 and the applicable resale restrictions imposed by state securities laws have been satisfied. Each certificate representing this Warrant or the Warrant Shares thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with such laws, unless pursuant to an opinion of counsel for the Holder, such legend is not required in order to ensure compliance with such laws. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions.

(e) Removal of Restrictive Legends . The certificates evidencing the Warrant Shares shall not contain any legend restricting the transfer thereof: (A) while a registration statement covering the sale or resale of the Warrant Shares is effective under the Securities Act and such legend removal is permitted under applicable securities laws (including compliance with the prospectus delivery requirements of the Securities Act), or (B) following any sale of such Warrant Shares pursuant to Rule 144, or (C) if such Warrant Shares are eligible for sale under Rule 144(b)(1), or (D) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) and the Company shall have received an opinion of counsel to the Holder in form reasonably acceptable to the Company to such effect (collectively, the “ Unrestricted Conditions ”). The Company shall cause its counsel to issue a legal opinion to its transfer agent if required by the transfer agent to effect the issuance of the Warrant Shares, as applicable, without a restrictive legend or removal of the legend hereunder. The Company agrees that at such time as the Unrestricted Conditions are met, it will, no later than three (3) Trading Days following the delivery by the Holder to the Company or the transfer agent of a certificate representing Warrant Shares, issued with a restrictive legend, deliver or cause to be delivered to such Holder a certificate (or electronic transfer) representing such Warrant Shares that is free from all restrictive and other legends.

6. Registration Rights . The Holder shall be entitled to all of the rights and subject to all of the obligations regarding registration of the shares of Common Stock issuable upon the exercise of this Warrant as described in the Purchase Agreement.

- 7 -

7. Notices; Adjustments .

(i) All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not, then on the next business day; (iii) two (2) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company or to Holder, as applicable, at the respective addresses set forth on the signature page to the Purchase Agreement or at such other address(es) as they may designate, respectively, by ten (10) days advance written notice to the other party hereto.

(ii) Upon the occurrence of any adjustments pursuant to Sections 3(a) or 3(c) hereof, the Company at its expense shall, as promptly as reasonably practicable but in any event not later than 10 days thereafter, compute such adjustment in accordance with the terms hereof and furnish to Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. In the event of any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, the Company shall mail to the Holder, at least ten (10) days prior to the date on which any such record is to be taken for the purpose of such dividend or distribution, a notice specifying such date. In the event of any voluntary dissolution, liquidation or winding up of the Company, the Company shall mail to the Holder, at least ten (10) days prior to the date of the occurrence of any such event, a notice specifying such date. If the approval of any stockholders of the Company shall be required in connection with any transaction contemplated by Section 3(b) above, then, the Company shall cause to be mailed to the Holder at least 10 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating the date on which such transaction is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such transaction. Notwithstanding the immediately preceding sentences, however, if the date on which the Company is obliged to provide notice hereunder to the Holders is prior to a public announcement relating to the events set forth and on such date the Company’s securities are traded or quoted on any recognized national securities exchange or quotation system, then such notice shall be provided to each Holder simultaneously with the notice provided to the Company’s common stockholders. Failure to give such notice, or any defect therein, shall not, however, affect the legality or validity of any such action.

8. Non-Circumvention . The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be reasonably required to protect the rights of the Holder.

9. Governing Law . This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles, and notwithstanding the fact that one or more counterparts hereof may be executed outside of the state, or one or more of the obligations of the parties hereunder are to be performed outside of the state.

10. Loss, Theft, Destruction or Mutilation of Warrant . Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft, or destruction, of indemnity reasonably satisfactory to it, and, if mutilated, upon surrender and cancellation of this Warrant, the Company will execute and deliver a new Warrant, having terms and conditions identical to this Warrant, in lieu hereof.

- 8 -

11. Modification and Waiver of Warrants . Any term of this Warrant may be amended, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) with the written consent of the Company and the holders of the Warrants representing at least 50.1% of the number of shares of Common Stock then subject to outstanding Warrants issued pursuant to the Purchase Agreement. Notwithstanding the foregoing, (a) this Warrant may be amended and the observance of any term hereunder may be waived without the written consent of the Holder only in a manner which applies to all Warrants issued pursuant to the Purchase Agreement in the same fashion and (b) other than in connection with a transaction contemplated by Section 3 of this Warrant, the number of Warrant Shares subject to this Warrant and the Exercise Price of this Warrant may not be amended, and the right to exercise this Warrant may not be waived, without the written consent of the Holder. The Company shall give prompt written notice to the Holder of any amendment hereof or waiver hereunder that was effected without the Holder’s written consent. No waivers of any term, condition or provision of this Warrant, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.

12. Successors . This Warrant shall be binding and inure to the benefit of the parties and their respective successors and assigns hereunder; provided that this Warrant may be assigned by Holder only in compliance with the conditions specified in and in accordance with all of the terms of this Warrant. This Warrant does not create and shall not be construed as creating any rights enforceable by any other person or corporation.

13. Headings . The headings used in this Warrant are used for convenience only and are not to be considered in construing or interpreting this Warrant.

14. Saturdays, Sundays, Holidays . If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday in the State of New York, then such action may be taken or such right may be exercised on the next succeeding day not a legal holiday.

15. Severability . If any provision of this Warrant shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions of this Warrant.

16. Execution and Counterparts . This Warrant may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. Any one of such counterparts shall be sufficient for the purpose of proving the existence and terms of this Warrant, and no party shall be required to produce an original or all of such counterparts in making such proof.

17. Acceptance . Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

Signature page to Common Stock Purchase Warrant follows.

- 9 -

IN WITNESS WHEREOF, the Company has caused this Common Stock Purchase Warrant to be executed and delivered as of the Issue Date by an officer thereunto duly authorized.


AUTHENTIDATE HOLDING CORP.

By:
	Name:	O’Connell Benjamin
	Title:	President and Chief Executive Officer

Address for Notice:

300 Connell Drive, 5 ^th Floor Berkeley Heights, NJ 07922

- 10 -

ATTACHMENT I

NOTICE OF EXERCISE

TO:	AUTHENTIDATE HOLDING CORP.

Attention: Chief Financial Officer

The undersigned hereby elects to purchase, pursuant to the provisions of the Common Stock Warrant issued by Authentidate Holding Corp. as of June , 2013, and held by the undersigned, the original of which is attached hereto, and (check the applicable box):

¨	Tenders herewith payment of the Exercise Price in the form of cash, via wire transfer of immediately available funds, in the amount of $ for shares of Common Stock.

¨	Elects the cashless exercise option pursuant to Section 1.4 of the Warrant, and accordingly requests delivery of shares of Common Stock, net, pursuant to the following calculation:

X = Y (A-B)/A

( ) = ( ) [( ) - ( )]/( )

Where

X = The number of shares of Common Stock to be issued to the Holder pursuant to this cashless exercise;

Y = The number of shares of Common Stock in respect of which the net issue election is made;

A = The Fair Market Value of one share of Common Stock, as calculated per the terms of the Warrant; and

B = The Exercise Price then in effect as of the date of exercise.

If this box is checked, as long as the Company’s transfer agent participates in the DTC Fast Automated Securities Transfer program (“FAST”), and except as otherwise provided in the next following sentence, the Company shall effect delivery of the shares of Common Stock to the Holder by crediting to the account of the Holder or its nominee at DTC (as specified in this Exercise Notice) with the number of shares of Common Stock required to be delivered. In the event that the Company’s transfer agent is not a participant in FAST, or if the shares of Common Stock are not otherwise eligible for delivery through FAST, the Company shall effect delivery of the shares of Common Stock by delivering to Holder or its nominee physical certificates representing such shares.

Information for Delivery of uncertificated Shares by DWAC:


Account Number:
Account Name:
DTC Number:

¨ If this box is checked, the Holder requests delivery of physical certificates representing the Warrant Shares and requests that such certificates be delivered to the following address:


Name:
		(please typewrite or print in block letters)

Address:


Tax I.D. No. or Social Security No.:

If such number of shares shall not be all the shares purchasable upon the exercise of the Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants remaining unexercised shall be registered in the name of and delivered to:


Name:
		(please typewrite or print in block letters)

Address:


Tax I.D. No. or Social Security No.:


HOLDER:


Name:
Title:

Date:

- 12 -

ATTACHMENT II

[FORM OF ASSIGNMENT]

(To be executed by the registered holder if such holder

desires to transfer the Warrant Certificate.)

FOR VALUE RECEIVED, the undersigned Holder of this Warrant hereby sells, assigns and transfers the foregoing Warrant and all rights evidenced thereby to


Name:
		(Please Print)

Address:
		(Please Print)

Tax ID No.:

and does hereby irrevocably constitute and appoint , Attorney, to transfer the within Warrant Certificate on the books of Authentidate Holding Corp., Inc., with full power of substitution.

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.


Dated:						Holder:




						(Print Name)


						(Signature)

STATE OF )

COUNTY OF ) ss:

On this day of , before me personally came , to me known, who being by me duly sworn, did depose and say that he resides at , that he is the holder of the foregoing instrument and that he executed such instrument and duly acknowledged to me that he executed the same.

Notary Public

- 13 -

Exhibit 5.1

45 BROADWAY

NEW YORK, NY 10006

212.599.3322 PHONE

212.557.0295 FAX

WWW.BECKER-POLIAKOFF.COM

WWW.BECKERNY.COM

June 12, 2013

Authentidate Holding Corp.

Connell Corporate Center

300 Connell Drive, 5 ^th Floor

Berkeley Heights, NJ 07922

Ladies and Gentlemen:

This opinion is furnished to you in connection with a Prospectus Supplement, dated June 12, 2013 (the “ Prospectus Supplement ”), to a Prospectus dated December 11, 2012 (the “ Base Prospectus ” and, together with the Prospectus Supplement, the “ Prospectus ”), filed pursuant to a Registration Statement on Form S-3 (File No. 333-183093) (the “ Registration Statement ”) filed by Authentidate Holding Corp. (the “ Company ”) with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the sale of (i) an aggregate of 4,683,685 shares (the “ Common Shares ”) of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”), which includes 425,790 shares of Common Stock that may be sold pursuant to the exercise of an option to the Underwriter to purchase additional shares, and (ii) Common Stock Purchase Warrants with an exercise price of $0.95 per whole share (each, a “ Warrant, ” and collectively, the “ Warrants ”) to purchase up to an aggregate of 4,683,685 shares of Common Stock, which includes Warrants to purchase up to an aggregate of 425,790 shares of Common Stock that may be sold pursuant to the exercise of an option to the Underwriter to purchase additional Warrants. The shares of Common Stock issuable upon exercise of the Warrants are referred to herein as the “ Warrant Shares .” The Common Shares, the Warrants, and the Warrant Shares are collectively referred to herein as the “ Securities ”. The Securities are to be sold pursuant to an Underwriting Agreement (the “ Underwriting Agreement ”) by and between the Company and J.P. Turner & Company, LLC, as representative of the underwriters, dated June 11, 2013. The Underwriting Agreement and the form of Warrant Agreement pursuant to which the Warrants are to be issued (the “ Warrant Agreement ”) have been filed as Exhibits 1.1 and 4.1, respectively, to a Current Report on Form 8-K filed with the Commission on the date hereof.

In connection with this opinion, we have examined and relied upon the Company’s Certificate of Incorporation and the Company’s Bylaws, each as amended to date and as currently in effect; the minutes of all pertinent meetings of directors of the Company relating to the Registration Statement, the Prospectus and the transactions contemplated thereby; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we deemed relevant for the purposes of rendering the opinions set forth in this letter; the Registration Statement and the exhibits filed thereto with the Commission; the Prospectus; the Underwriting Agreement; and the Warrant Agreement, including the form of Warrants.

LEGAL AND BUSINESS STRATEGISTS

MEMBERS OF CONSULEGIS AN INTERNATIONAL ASSOCIATION OF LAW FIRMS, AND NETWORK OF LEADING LAW FIRMS

LOGO

In our examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed; (iv) the legal capacity of natural persons; and (v) the due authorization, execution and delivery of all documents, where due authorization, execution and delivery are a prerequisite to the effectiveness thereof.

Based upon the foregoing, and subject to the limitations set forth below, we are of the opinion that:

(i) the Common Shares have been duly authorized for issuance and, when issued and delivered by the Company against payment therefor in accordance with the Underwriting Agreement, the Registration Statement and the Prospectus, will be duly and validly issued, fully paid and non-assessable;

(ii) the Warrants are duly authorized, and when duly executed and delivered by the Company in accordance with the Warrant Agreement, the Registration Statement and the Prospectus, will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with their terms; and

(iii) the Warrant Shares, have been duly authorized for issuance and when issued and delivered by the Company against payment therefor in accordance with the Warrant Agreement, the Warrants, the Registration Statement and the Prospectus, will be duly and validly issued, fully paid and non-assessable.

Our opinion that any document is legal, valid and binding is qualified as to:

(a) limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other laws relating to or affecting the rights of creditors generally;

(b) rights to indemnification and contribution, which may be limited by applicable law or equitable principles; and

(c) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law.

Page 2

LOGO

Our opinions are limited to the laws of the State of New York, the General Corporation Laws of the State of Delaware (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting such laws) and the United States federal laws, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Common Stock under the securities or blue sky laws of any state or any foreign jurisdiction. To the extent that any applicable document is stated to be governed by the laws of another jurisdiction, we have assumed, for purposes of this opinion letter, that the laws of such jurisdiction are identical to the state laws of the State of New York.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion letter is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

We hereby consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act with the Commission as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the issue and sale of the Securities and to the use of our name in the above-referenced Prospectus Supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Very truly yours,

/s/ Becker & Poliakoff, LLP

Becker & Poliakoff, LLP

Page 3

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement (this “ Agreement ”) is dated as of June 11, 2013, among Authentidate Holding Corp., a Delaware corporation (the “ Company ”), and each of the purchasers identified on the signature pages hereto (each, a “ Purchaser ” and collectively, the “ Purchasers ”).

BACKGROUND

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 as promulgated by the U.S. Securities and Exchange Commission (the “ Commission ”) under the Securities Act, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, a number of units of the Company’s securities (the “ Units ”) as is set forth beneath such Purchaser’s name on the signature pages hereof, with each Unit consisting of such number of (a) shares of Series D Convertible Preferred Stock, par value $0.10 per share (the “ Series D Preferred Stock ”), and (ii) warrants to purchase shares of Common Stock (each, a “ Warrant ”) as more fully described in this Agreement (the “ Offering ”); and

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchasers hereby agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions . In addition to the other terms specifically defined elsewhere in this Agreement, the following capitalized terms shall have the following respective meanings when used herein:

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Board of Directors ” means the board of directors of the Company or any authorized committee of the board of directors.

“ Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which the banking institutions in the City of New York, New York are authorized or obligated by law or executive order to close or be closed.

“ Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.

“ Closing ” means the closing of the purchase and sale of the Units pursuant to Section 2.1 .

“ Closing Bid Price ” shall mean the most recently reported closing consolidated bid price of the Company’s Common Stock published by the Nasdaq Stock Market determined as of the Effective Date of this Agreement.

“ Closing Date ” means the Trading Day on which this Agreement has been executed and delivered by the parties hereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the securities comprising the Units, in each case, have been satisfied or waived.

“ Common Stock ” shall mean the common stock of Authentidate Holding Corp., par value $0.001 per share.

“ Effective Date ” shall mean the date that the Company has satisfied the following conditions (i) the Company has received subscription from Note Holders (as defined in Section 2.3 below) holding Senior Notes (as defined in Section 2.3 below) in an aggregate principal amount of at least the Minimum Amount and (ii) the Company has entered into an underwriting agreement in form and substance satisfactory to the Company providing for a firm commitment public offering of the Company’s securities for gross proceeds in excess of $2,000,000.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Indebtedness ” means, without duplication, with respect to any Person (the “subject Person”), all liabilities, obligations and indebtedness of the subject Person to any other Person, of any kind or nature, now or hereafter owing, arising, due or payable, howsoever evidenced, created, incurred, acquired or owing, whether primary, secondary, direct, contingent, fixed or otherwise, consisting of indebtedness for borrowed money or the deferred purchase price of property, excluding purchases of property, product, merchandise and services in the ordinary course of business, but including (a) all obligations and liabilities under guarantees; (b) the present value of lease payments due under synthetic leases; and (c) all obligations and liabilities under any asset securitization or sale/leaseback transaction; provided, further , however, that in no event shall the term Indebtedness include the capital stock surplus, retained earnings, minority interests in the common stock of Subsidiaries, lease obligations (other than pursuant to (b) above), reserves for deferred income taxes and investment credits, other deferred credits or reserves.

“ Liens ” means any lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction, other than restrictions imposed by securities laws.

“ Majority in Interest ” shall mean the holders of at least a majority (50.1%) of the aggregate number of Series D Preferred Shares then outstanding at the time of such determination.

“ Minimum Amount ” means an aggregate principal amount of Senior Notes of at least U.S. $6,000,000.

“ Per Unit Purchase Price ” equals $10.00.

“ Person ” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.

“ Premium ” means such additional amount above the Closing Bid Price so as to ensure that the conversion price of the Series D Preferred Stock is deemed to be an “above-market” transaction in accordance with the listing rules of the Nasdaq Stock Market.

“ Registration Rights Agreement ” means the Registration Rights Agreement, substantially in the form attached hereto as Exhibit C , pursuant to which the Company will agree to provide certain registration rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement) under the Securities Act and the rules and regulations promulgated thereunder, and applicable state securities laws.

“ Required Approvals ” means (i) filings expressly required pursuant to this Agreement, (ii) application(s) and/or notification(s) to the Company’s principal Trading Market for the listing of the shares of Common Stock which may be issued pursuant to the terms of this Agreement for trading thereon in the time and manner required thereby; (iii) such filings as are required to be made under applicable federal and state securities laws; (iv) approvals or consents that have been made or obtained prior to or contemporaneously with the date of this Agreement; (v) filings pursuant to the Exchange Act; and (vi) the filing with the SEC of one or more registration statements in accordance with the requirements of the Registration Rights Agreement.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Security Agreements ” means those certain Security Agreements, as amended to date, dated March 28, 2012 and September 24, 2012, entered into among the Company and the purchasers thereunder pursuant to which the Company granted such purchasers a Lien against the Company’s assets to secure the Company’s obligations under the Senior Notes.

“ Senior Notes ” means the aggregate principal amount of $7,350,000 of outstanding senior secured notes issued by the Company on March 28, 2012 and September 24, 2012, as amended to date, and any deferrals, renewals or extensions thereof, and any notes or other instruments or evidences of Indebtedness issued in respect of or in exchange thereof.

“ Short Sales ” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.

“ Subsidiary ” means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.

“ Subscription Amount ” means the aggregate amount to be paid for the Units purchased hereunder as specified beneath each Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” payable (i) in United States dollars and in immediately available funds and (ii) by the surrender for cancellation of Senior Notes by Note Holders, in an amount equal to the amount of aggregate Per Unit Purchase Price for the number of Units subscribed by the Purchaser.

“ Trading Day ” means a day on which the Trading Market on which the Company’s Common Stock is listed for trading is open for trading.

“ Trading Market ” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board.

“ Transaction Agreements ” means this Agreement, the Series D Certificate of Designation, the Warrants, the Registration Rights Agreement, and any other agreement or instrument executed by a party to this Agreement or in connection with the transactions contemplated hereunder.

ARTICLE II

PURCHASE AND SALE OF SECURITIES

2.1 Purchase and Sale of Securities; Binding Agreement Date; Closing .

(a) The Company has duly authorized the issuance and sale at the Closing of a maximum of 900,000 Units at the Per Unit Purchase Price for an aggregate purchase price of $9,000,000 with each Unit consisting of (i) one (1) share of the Company’s Series D Convertible Preferred Stock (the “ Series D Preferred Shares ”), having the terms set forth in the Certificate of Designation for such Series D Preferred Shares attached hereto as Exhibit A (the “ Series D Certificate of Designation ”) and (ii) warrants (each, a “ Warrant ” and collectively, the “ Warrants ”) to purchase an aggregate of ten (10) shares of Common Stock (the “ Warrant Shares ”) which Warrants shall be exercisable at a per share exercise price equal to 100% of the Closing Bid Price and otherwise be substantially in the form attached hereto as Exhibit B . The Series D Preferred Shares issuable hereunder shall be convertible into shares of Common Stock at an initial conversion price equal to the Closing Bid Price plus the Premium and in accordance with the terms of the Series D Certificate of Designation (the “ Conversion Shares ”, and together with Series D Preferred Shares, the Warrants and the Warrant Shares, the “ Securities ”).

(b) Upon all of the terms and subject to all of the conditions hereof, the Company agrees to issue and sell to each Purchaser, and each of the Purchasers hereby agrees to purchase on the Closing Date (defined below), (i) the number of Series D Preferred Shares set forth below the Purchaser’s name on the Purchaser Signature Page and (ii) the number of Warrants set forth below the Purchaser’s name on the Purchaser Signature Page. The obligations of the Purchasers to purchase Units are several and not joint. Notwithstanding anything else herein, for purposes of determining the Closing Bid Price pursuant to Nasdaq Listing Rules, including Rule 5005(a)(22), this Agreement shall not be binding or effective until the execution by all necessary parties of an underwriting agreement for a firm commitment public offering of at least $2,000,000 of the Company’s securities.

(c) The closing of the purchase and sale of the Securities pursuant to this Agreement (the “ Closing ”) shall occur on such Business Day as the Purchasers and Company agree. The “ Closing Date ” shall mean the Business Day on which this Agreement has been executed and delivered by the parties hereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Securities comprising the Units, in each case, have been satisfied or waived.

(d) At the Closing, upon the terms and subject to the conditions set forth herein, substantially concurrently with the execution and delivery of this Agreement by the parties hereto, the Company shall sell, and each Purchaser shall purchase, the number of Units specified beneath each such Purchaser’s name on the signature pages hereto. At the Closing, each Purchaser shall deliver to the Company an amount equal to such Purchaser’s Subscription Amount as set forth beneath such Purchaser’s name on the signature page hereto, and the Company shall deliver to such Purchaser the securities represented by the Units so purchased, and the Company and the Purchaser shall deliver the

other items set forth in Section 2.2 deliverable at the Closing. Each Purchaser shall deliver its Subscription Amount to the Company either (i) by surrendering to the Company at its principal offices for cancellation the original Senior Note(s) held by such Purchaser, free and clear of any liens, claims, charges, security interest or other legal or equitable encumbrances, in an amount equivalent to such Purchaser’s Subscription Amount for Units purchased through the cancellation of Senior Notes and/or (ii) via wire transfer of immediately available U.S. funds to the account designated for receipt of such funds by the Company. Upon satisfaction of the requirements, covenants and conditions set forth in Section 2.2 and Article V , the Closing shall occur at the offices of the Company or such other location, and at such time, as the parties shall mutually agree.

(e) Each Purchaser acknowledges and agrees that the Company reserves the right, in its absolute discretion, to reject a subscription for Units, in whole or in part, at any time prior to the closing time. If a subscription is rejected in whole, any checks or other forms of payment delivered to the Company representing the Subscription Amount will be promptly returned to such Purchaser without interest or deduction. If a subscription is accepted only in part, a check representing any refund of the Subscription Amount for that portion of the subscription for the Units which is not accepted will be promptly delivered to each Purchaser without interest or deduction.

2.2 Deliveries .

(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by the Company; (ii) the Registration Rights Agreement, duly executed by the Company; (iii) a duly executed stock certificate representing the Series D Preferred Shares purchased hereunder; (iv) the Warrants purchased hereunder, duly executed by the Company; (v) evidence of the filing and acceptance of the Series D Certificate of Designation from the Secretary of State of Delaware; and (vi) such other documents relating to the transactions contemplated by this Agreement as the Purchasers or their counsel may reasonably request.

(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following: (i) this Agreement, duly executed by such Purchaser; (ii) if such Purchaser is paying some or all of its Subscription Amount in U.S. funds, then the Purchaser’s Subscription Amount by wire transfer of immediately available U.S. funds to the account as specified in writing by the Company for the amount of Securities being t purchased by payment of U.S. funds; (iii) if such Purchaser is paying some or all of its Subscription Amount through the surrender and cancellation of Senior Notes, then such Purchase shall surrender to the Company the original Senior Notes registered in the name of such Purchaser in an aggregate principal amount equivalent to the Subscription Amount of the Purchaser to be paid through the cancellation of Senior Notes (or an affidavit of loss and indemnity undertaking with respect thereto, in a form acceptable to the Company); (iv) the Registration Rights Agreement, duly executed by such Purchaser; (v) a fully completed and duly executed Accredited Investor Certification, substantially in the form attached hereto as Schedule A ; and (vi) such other documents relating to the transactions contemplated by this Agreement as the Company or its counsel may reasonably request.

2.3 Cancellation of Senior Notes .

(a) Each Purchaser who is a holder of Senior Notes (each a “ Note Holder ” and collectively, the “ Note Holders ”) that is surrendering such Senior Notes in consideration for the sale of Units hereunder hereby agrees that the aggregate principal amount of the Senior Notes held by such Purchaser shall be cancelled upon the Closing. Each Purchaser acknowledges that the cancellation of the Senior Notes held by such Purchaser shall have the effects specified in the Senior Notes and in the Security Agreements. Notwithstanding anything to the contrary contained in the Senior Notes or in the

Security Agreements or otherwise, the Company and each such Purchaser that is a Note Holder hereby agree that upon the Closing: (i) the Company’s obligations under the Senior Notes held by such Note Holder shall be deemed fully paid and satisfied; (ii) the Company’s obligations to such Note Holder pursuant to the Security Agreements shall be deemed fully satisfied; (iii) as between the Company and the Note Holders that are Purchasers, the Security Agreements and the Senior Notes shall automatically terminate and have no further force and effect (other than those specific provisions which pursuant to the terms and provisions of the Security Agreements and the Senior Note expressly survive termination), and (iv) all security interests in and other liens on the assets of the Company granted pursuant to the Security Agreements and the Senior Notes (to the extent of the aggregate principal amount of Senior Notes which are surrendered pursuant to this Agreement) shall be automatically terminated and released.

(b) Each Note Holder that is surrendering its Senior Notes pursuant to this Agreement hereby authorizes the Representative (as defined in the Security Agreements) and the Company to execute and file any Uniform Commercial Code termination statements, release and termination of trademark security interests and other similar discharge or release documents as are necessary or reasonably requested by the Company to terminate and release, as of record, the security interests, financing statements, and all other notices of security interests and liens previously filed by with respect to the Senior Notes (to the extent of the aggregate principal amount of Senior Notes which are surrendered pursuant to this Agreement). Such Note Holders hereby further authorize the Representative and the Company and/or their counsel or representatives, immediately following the Closing, to file the foregoing UCC and other termination statements (including a Termination of Trademark Security Interest) in such jurisdictions as are deemed necessary by the Company to terminate and release the security interests granted pursuant to the Senior Notes. The Note Holders shall execute and deliver to or for the Company such additional documents (in recordable form, as appropriate) as the Company may reasonably request to carry out the foregoing termination and release of the security interests granted under the Security Agreements the Senior Notes. Each Note Holder further agrees that it will write “PAID IN FULL” on the original of the Senior Notes surrendered to the Company pursuant to this Agreement and initial such phrase and return the original Senior Note to the Company. Notwithstanding the foregoing, however, in the event the Purchaser does not inscribed the phrase “PAID IN FULL” on the original Senior Notes, it hereby authorizes the Company’s agents and officers to write such phrase on the original Senior Note.

(c) In the event a Note Holder has lost his, her or its original Senior Note, or such Senior Notes are lost, stolen or destroyed, such Note Holder shall, instead of returning the original Senior Note, execute and deliver to the Company an affidavit of loss and indemnification undertaking (in a form acceptable to the Company) with respect to such Senior Notes and in which instrument the Note Holder acknowledges that the Senior Notes are paid in full.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of the Company . The Company hereby represents and warrants to the Purchasers as follows:

(a) Organization and Qualification . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the requisite legal authority to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation of any of the provisions of its certificate of incorporation, bylaws or other organizational or charter documents. The Company is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by the Company makes such qualification necessary, except where the

failure to be so qualified or in good standing, as the case may be, would not, individually or in the aggregate, have, or reasonably be expected to result in, a Material Adverse Effect (defined below). For purposes of this Agreement, “ Material Adverse Effect ” means (i) a material adverse effect on the results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole on a consolidated basis, or (ii) material and adverse impairment of the Company’s ability to perform its obligations under this Agreement, provided that none of the following alone shall be deemed, in and of itself, to constitute a Material Adverse Effect: (A) a change in the market price or trading volume of the shares of Common Stock of the Company or (B) changes in general economic conditions or changes affecting the industry in which the Company operates generally (as opposed to Company-specific changes) so long as such changes do not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole.

(b) Authorization; Enforcement . The Company has the requisite corporate authority to enter into this Agreement and to carry out its obligations hereunder subject to the terms and conditions set forth herein. The execution and delivery of this Agreement, the certificates representing the Series D Preferred Shares and the Warrants, and the other Transaction Agreements have been duly authorized by all necessary corporate action on the part of the Company. This Agreement and the other Transaction Agreements have been duly executed and delivered by the Company and constitutes, and the certificates representing the Series D Preferred Shares and Warrants, when executed and delivered in accordance with the terms hereof, will constitute, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally; (ii) the effect of rules of law governing the availability of specific performance, injunctive relief and other equitable remedies; and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(c) Required Approvals; No Conflicts . The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person or entity in connection with the execution, delivery and performance by the Company of this Agreement or the issuance, sale or delivery of the Securities other than the Required Approvals and if required, the Stockholder Approval contemplated by Section 6.9 of this Agreement. Subject to the Required Approvals and if required, the Stockholder Approval contemplated by Section 6.9 of this Agreement, the execution and delivery by the Company of this Agreement and the certificates representing the Series D Preferred Shares and the Warrants, and the performance by the Company of its obligations hereunder and thereunder, do not and will not (i) conflict with or violate any provision of the Company’s certificate of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default under (or an event that, with notice or lapse of time or both, would become a default under), or give to others any rights of termination, amendment, acceleration or cancellation under (with or without notice, lapse of time or both), any agreement, credit facility, debt or other instrument evidencing a debt of the Company or other understanding to which the Company is a party, or by which any of its properties or assets is bound, except to the extent that such conflict or default or termination, amendment, acceleration or cancellation right would not reasonably be expected to have a Material Adverse Effect, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject, or by which any of its properties or assets is bound, except to the extent that such violation would not reasonably be expected to have a Material Adverse Effect.

(d) Capitalization . As of May 31, 2013, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, of which (A) 30,655,285 shares are issued and outstanding (after giving effect to the issuance of all shares of common stock upon the conversion of our

previously outstanding shares of Series C Convertible Redeemable Preferred Stock, which were converted as of April 5, 2013); (B) 3,304,855 shares are reserved for issuance upon the exercise of stock options and the vesting of restricted stock units outstanding under the Company’s equity compensation plans; (C) 13,631,953 shares are reserved for issuance upon exercise of common stock purchase warrants granted prior to the date of this Agreement; and (D) and such additional stock options and shares of Common Stock which may be issued from time to time in accordance with the terms of the Company’s current equity compensation plans; and (ii) 5,000,000 shares of Preferred Stock, $0.10 par value per share, of which 28,000 shares are issued and outstanding and designated as Series B Convertible Preferred Stock and which shares of Series B Convertible Preferred Stock are convertible into an aggregate of 250,000 shares of Common Stock. All of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and were issued in full compliance with applicable state and federal securities laws. Except as disclosed in this Agreement, the SEC Reports (as defined below), or in another document publicly filed by the Company with the Commission prior to the date first set forth above, the Company has no outstanding options or warrants to purchase, or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, warrants, rights, convertible securities or obligations. The description of the Company’s equity compensation plans and the options or other rights granted and exercised thereunder set forth in the SEC Reports accurately and fairly presents in all material respects the information required by the Securities Act to be shown with respect to such plans, options and rights.

(e) Due Issuance. The Series D Preferred Shares and the Warrants to be issued and the shares of Common Stock to be issued upon conversion of the Series D Preferred Shares and exercise of the Warrants (and solely with respect to the issuance of any Conversion Shares and Warrant Shares in excess of the Exchange Cap (as defined in Section 6.8 ), subject to the Stockholder Approval), will be duly authorized and, when issued and paid for in accordance with this Agreement, the Series D Certificate of Designation and the Warrants, as the case may be, will be duly and validly issued and outstanding, fully paid and non-assessable, free and clear of all Liens and will not be subject to pre-emptive or similar rights of stockholders of the Company.

(f) Litigation . Except as described in the Company’s reports filed with the SEC pursuant to the Exchange Act (the “ SEC Reports ”), there is no pending or, to the best knowledge of the Company, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over the Company, or any of its Affiliates that would affect the execution by the Company or the performance by the Company of its obligations under this Agreement, and all other agreements entered into by the Company relating hereto. Except as disclosed in the SEC Reports, there is no pending or, to the best knowledge of the Company, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over the Company, or any of its Affiliates which litigation if adversely determined would reasonably be expected to have a Material Adverse Effect.

(g) Intellectual Property . Except as disclosed in the SEC Reports, each of the Company and its subsidiaries owns or has the valid right to use all Intellectual Property (as defined below) necessary for the conduct of the businesses of the Company and its subsidiaries in the manner described in the SEC Reports as now conducted or proposed to be conducted. Except as disclosed in the SEC Reports: (i) to the knowledge of the Company, no third party has infringed, misappropriated, diluted or otherwise violated in any material respect any Intellectual Property rights of the Company or any of its subsidiaries, and no claims for any of the foregoing have been brought against any third party by the Company or any of its subsidiaries; (ii) the Intellectual Property owned by the Company or its subsidiaries and, to the knowledge of the Company, the Intellectual Property licensed to the Company or its subsidiaries have not been adjudged invalid or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding, investigation or claim

challenging the validity, enforceability, scope, issuance/registration, use or ownership of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (iii) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company or any of its subsidiaries infringes, misappropriates, dilutes or otherwise violates any Intellectual Property of others; and (iv) each of the Company and its subsidiaries has taken commercially reasonable steps, consistent with industry standards, to maintain and protect all Intellectual Property that is material to the conduct of its business. The term “ Intellectual Property ” as used herein means all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade dress, domain names, copyrights, licenses, inventions, trade secrets, technology, software, systems, know-how and other intellectual property and proprietary rights.

(h) Property . The Company does not own any real property. The Company and its subsidiaries have good and marketable title to all properties and assets described in the SEC Reports as owned by it, in each case free and clear of all Liens, except such as (i) are described in the SEC Reports or (ii) do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries. Any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries.

(i) Permits . The Company and its subsidiaries possess all licenses, certificates, clearances, authorizations or permits issued by the appropriate governmental or regulatory agencies or authorities (collectively, “ Permits ”) that are necessary to enable them to own, lease and operate their respective properties and to carry on their respective businesses as presently conducted, except where the failure to possess such licenses, certificates, authorization or permits would not reasonably be expected to have a Material Adverse Effect. The Company has not received notice of any revocation or modification of any such Permits and has no reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course. The Company has not received any Form 483 notice of adverse finding from the U.S. Food and Drug Administration (“ FDA ”), warning letter, untitled letter or other correspondence or notice from FDA or any other governmental or regulatory authority alleging or asserting noncompliance with any applicable laws or any Permits. The Company has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any applicable laws or Permits and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct on the date filed in all material respects (or were corrected or supplemented by a subsequent submission).

(j) Financial Statements . The financial statements of the Company, together with the related schedules and the notes thereto, included or incorporated by reference in the SEC Reports comply in all material respects with applicable accounting requirements and the applicable requirements of the Securities Act and Exchange Act as in effect at the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. EisnerAmper LLP, who has audited certain financial statements of the Company, are independent registered public accountants as required by the Securities Act and Exchange Act and have been appointed by the Company’s audit committee (if so empowered by the Board of Directors) comprised only of independent directors, or by the Board of Directors, as the case may be.

(k) Material Liabilities and Indebtedness . Since the date of the latest audited financial statements included in the SEC Reports, except as disclosed in the SEC Reports: (i) there has been no event, occurrence or development that, individually or in the aggregate, has had or would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or required to be disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting or the identity of its auditors, and (iv) other than with respect to the Company’s shares of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock, the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock. Except for the issuance of the Securities contemplated by this Agreement or as set forth in the SEC Reports, no event, liability or development has occurred or exists with respect to the Company or its subsidiaries or their respective business, properties, operations or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one Trading Day prior to the date that this representation is made.

(l) Transactions with Related Parties . Except as set forth in the SEC Reports, none of the officers or directors of the Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company or any subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each case as would be required to be disclosed pursuant to the requirements of Item 404 of Regulation S-K. Each Purchaser acknowledges that, as set forth in the SEC Reports, certain officers, directors and holder of greater than 5% of the Company’s outstanding shares of Common Stock are the beneficial owners of an aggregate principal amount of $4,850,000 of outstanding Senior Notes and that each such person may be a party to this Agreement and surrender the Senior Notes held by them in consideration of the issuance of the Units hereunder.

(m) Nature of Company’s Obligation . The Company further acknowledges that its obligations under the Transaction Agreements, including, without limitation, its obligation to issue the Warrant Shares, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other stockholders of the Company.

(n) No Defaults . Except as disclosed in the Company’s SEC Reports, the Company and its Subsidiaries are not, nor have they received notice that they would be with the passage of time, giving of notice, or both, in breach or violation of any of the terms and provisions of, or in default under (a) their charters and bylaws, (b) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over them, or any of their material assets or properties, or (c) any material agreement or instrument to which they are a party or by which they are bound or to which any of their assets or properties are subject, except, in the case of clauses (b) and (c) only, for such conflicts, breaches or violations as have not and are not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect.

(o) Insurance . The Company, on behalf of itself and its subsidiaries, carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Company and its subsidiaries are in full force and effect; each of the Company and its subsidiaries is in compliance with the terms of such policies in all material respects; and none of the Company or its subsidiaries has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance; there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and none of the Company or its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that could not reasonably be expected to have a Material Adverse Effect.

(p) Taxes . The Company has filed all federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof, subject to permitted extensions, and has paid all taxes due thereon, and no tax deficiency has been determined adversely to the Company, nor does the Company have any knowledge of any tax deficiencies that could, in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no pending dispute with any taxing authority relating to the Company’s payment of taxes in any material amount except which the Company is contesting in good faith and the Company has no knowledge of any proposed liability for any tax to be imposed upon the properties or assets of the Company for which there is not an adequate reserve reflected in the Company’s financial statements included or incorporated by reference in the SEC Reports.

(q) Trading Market . Except as disclosed in the SEC Reports, the Company has not, in the twelve (12) months preceding the date hereof, received notice from the Nasdaq Stock Market to the effect that the Company is not in compliance with the listing or maintenance requirements of the Nasdaq Stock Market. Except as described in the SEC Reports, the Company has no reason to believe that it will not in the foreseeable future continue to be in compliance or regain compliance in a timely manner, as the case may be, with all such listing and maintenance requirements. The issuance and sale of the Securities hereunder does not contravene, in a manner which is expected to have a Material Adverse Effect, the rules and regulations of the Nasdaq Stock Market and no stockholder approval is required for the Company to fulfill its obligations under the Transaction Agreements, other than as described in this Agreement. The Common Stock has been registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Nasdaq Stock Market.

(r) SEC Reports . The Company has filed all SEC Reports required to be filed by it under the Exchange Act for the two years preceding the date hereof on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports filed for the two years preceding the date hereof have complied in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder, and none of such SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(s) Sarbanes-Oxley Compliance . The Company is in compliance in all material respects with all provisions of the Sarbanes-Oxley Act of 2002, as amended, applicable to it, and the applicable rules and regulations promulgated thereunder by all government and regulatory authorities and agencies. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or

specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect thereto. The Company has established and maintains and evaluates “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term is defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act). The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures and the Company presented in its most recent periodic report filed for a completed fiscal quarter in accordance with the Exchange Act, the conclusions of the Company’s certifying officers about the effectiveness of such disclosure controls and procedures.

The Purchaser acknowledges and agrees that the Company does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those representations and warranties specifically set forth in this Agreement.

3.2 Representations, Warranties and Acknowledgements of the Purchasers . Each Purchaser, severally and not jointly, represents and warrants with respect to only itself, as of the Closing Date, that:

(a) Organization; Authority . Each Purchaser certifies that it is resident in the jurisdiction set out on the applicable signature page of this Agreement. Such address was not created and is not used solely for the purpose of acquiring the Securities and each Purchaser was solicited to purchase in such jurisdiction. The Purchaser is either a natural person or an entity, and in the case of an entity, (i) such Purchaser is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has the requisite corporate, partnership or other power and authority to enter into this Agreement, to subscribe for and purchase the Securities as contemplated herein and to carry out its obligations hereunder, and (ii) the execution and delivery of, and performance under, this Agreement and the other Transaction Agreements have been duly authorized by all necessary corporate, partnership or other action on the part of such Purchaser. The Purchaser is duly authorized to execute, deliver and perform this Agreement, the other Transaction Agreements and all other necessary documentation. In the case of all Purchasers, whether or not a natural person, this Agreement has been duly authorized, executed and delivered by such Purchaser and constitutes a legal, valid and binding obligation of each such Purchaser, enforceable against him, her or it in accordance with its terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (B) the effect of rules of law governing the availability of specific performance and other equitable remedies, and (C) insofar as indemnification and contribution provisions may be limited by applicable law.

(b) No Conflicts . The execution, delivery and performance by the Purchaser of this Agreement and each of the Transaction Agreements to which it is a party, and the consummation by the Purchaser of the transactions contemplated by this Agreement and each such Transaction Agreement, do not and will not (i) conflict with or violate any provision of the Purchaser’s certificate of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Purchaser is subject (including federal and state securities laws and regulations), or by which any property or asset of the Purchaser is bound or affected.

(c) No General Solicitation . The subscription for the Securities by each Purchaser has not been made through or as a result of, and the distribution of the Notes is not being accompanied by any advertisement, including without limitation in printed public media, radio, television or telecommunications, including electronic display, or as part of a general solicitation.

(d) Restricted Securities . Each Purchaser understands that the Series D Preferred Shares, the Conversion Shares, the Warrants, and the Warrant Shares, will be characterized as “restricted securities” under U.S. federal securities laws inasmuch as, if issued, they will be acquired from the Company in a transaction not involving a public offering and that, under U.S. federal securities laws and applicable regulations, the Series D Preferred Shares, the Conversion Shares, the Warrants, and the Warrant Shares may be resold without registration under the Securities Act only in certain limited circumstances. Such Purchaser acknowledges that all certificates representing any of the Series D Preferred Shares, the Conversion Shares, the Warrants, and the Warrant Shares will bear a restrictive legend in a form as set forth below and hereby consents to the transfer agent for the Company’s Common Stock making a notation on its records to implement the restrictions on transfer described herein. Such Purchaser understands that except as provided in the Transaction Agreements: (i) the Securities have not been and are not being registered under the Securities Act or any state securities laws, must be held indefinitely and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Purchaser shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Purchaser provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively, “ Rule 144 ”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the 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 Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the Commission thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.

(e) Certain Legends .

(i) Such Purchaser understands that the Securities are “restricted securities” and that the certificates or other instruments representing the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares shall bear any applicable legend as required under U.S. federal securities laws and by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such certificates):

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE OR EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.

(ii) In the event that the Series D Preferred Shares are converted into Conversion Shares or the Warrants are exercised for shares of Common Stock, such Conversion Shares and Warrant Shares, as the case may be, shall bear any applicable legend as required under U.S. federal securities laws and by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), 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, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT (II) UNLESS SOLD OR TRANSFERRED TO A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT OR (III) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.

(iii) The Company may at any time place a stop transfer order on its transfer books against the shares of Common Stock underlying the Series D Preferred Shares and the Warrants. Such stop order will be removed, and further transfer of such shares of Common Stock will be permitted, upon an effective registration of the respective shares of Common Stock, or the receipt by the Company of an opinion of counsel satisfactory to the Company that such further transfer may be effected pursuant to an applicable exemption from registration.

(f) Reliance on Representations . Such Purchaser understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein and in the applicable schedules and exhibits in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Securities. The Purchaser undertakes to immediately notify the Company of any change in any statement or other information relating to the Purchaser set forth in such applicable schedules and exhibits which takes place prior to the Closing time. No Person has made any written or oral representations to the Purchaser that (i) any Person will resell or repurchase the Series D Preferred Shares, the Conversion Shares, the Warrants or the Warrant Shares, (ii) that any Person will refund all or any part of the Purchase Price, or (iii) as to the future price or value of the shares of Common Stock of the Company.

(g) Schedules . Each Purchaser acknowledges that this Agreement and Schedule A attached hereto require the Purchaser to provide certain personal information to the Company. Such information is being collected by the Company for the purposes of completing the transactions contemplated by this Agreement, which includes, without limitation, determining the Purchaser’s eligibility to purchase the Securities under the securities laws applicable in the United States and other applicable securities laws, preparing and registering certificates representing the Securities and completing filings required by any stock exchange or securities regulatory authority. The Purchaser’s personal information may be disclosed by the Company to: (a) stock exchanges or securities regulatory authorities, (b) any of the other parties involved in the Offering, including legal counsel and may be included in record books in connection with the Offering, and (c) pursuant to any disclosure requirements

existing under the U.S. federal or state securities laws. By executing this Agreement, the Purchaser is deemed to be consenting to the foregoing collection, use and disclosure of the Purchaser’s personal information; provided, that in the event of a disclosure pursuant to clause (a) of the preceding sentence, the Company shall (to the extent it is legally permitted), use commercially reasonable efforts to give such Purchaser advance notice of any required disclosure. The Purchaser also consents to the filing of copies or originals of any of the Purchaser’s documents as may be required to be filed with any stock exchange or securities regulatory authority in connection with the transactions contemplated hereby.

(h) No Public Sale or Distribution . Each Purchaser will be acquiring the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares, in the ordinary course of business for his, her or its own account and not for the benefit of any other Person and not with a view towards, or for resale in connection with, the public sale or distribution thereof, and the Purchaser covenants that it will not resell the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares except pursuant to sales registered under the Securities Act or under an exemption from such registration and in compliance with applicable U.S. federal and state securities laws, and such Purchaser does not have a present arrangement to effect any distribution of the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares to or through any Person or entity.

(i) Investor Status . On the date such Purchaser was offered the Securities and on the date hereof and such Purchaser is and will be either an “accredited investor” as defined in Rule 501(a) promulgated under Regulation D of the Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act. The Purchaser has properly completed, executed and delivered to the Company the applicable “accredited investor” certificate set forth in the Schedules hereto and the information contained therein is true and correct. Such Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act.

(j) Experience of Purchaser . There are risks associated with the purchase of and investment in the Securities, and the Purchaser, either alone or together with his, her or its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of entering into this Agreement and making his, her or its Purchase Price and the merits and risks of the prospective investment in the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares, and such Purchaser has so evaluated such merits and risks. Such Purchaser understands that he, she or it must bear the economic risk of an investment in the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares, if any, indefinitely and is able to bear such risk and to afford a complete loss of such investment.

(k) Access to Information . Such Purchaser acknowledges that he, she or it has reviewed the SEC Reports and has been afforded (i) the opportunity to ask such questions as he, she or it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of this Agreement and the merits and risks of the prospective investment in the Securities, (ii) access to information about the Company and its Subsidiaries and their respective financial condition, results of operations, business, properties, management and prospects sufficient to enable him, her or it to evaluate the terms and conditions of this Agreement and the merits and risks of the prospective investment in the Securities and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed decision. The Purchaser is not purchasing the Series D Preferred Shares and Warrants based on knowledge of material information concerning the Company that has not been generally disclosed. Such Purchaser and its advisors, if any, in acquiring the Securities, have relied solely on their independent investigation of the Company and have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by such Purchaser or its advisors, if any, or its representatives shall modify, amend or affect such Purchaser’s right to rely on the

Company’s representations and warranties contained herein. Such Purchaser understands that its investment in the Securities involves a high degree of risk. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.

(l) No Governmental Review . Each Purchaser understands that no United States federal or state agency, or any other government or governmental agency has reviewed or passed on or made, or will pass on or make, any recommendation or endorsement of the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares or the fairness or suitability of the prospective investment in the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares.

(m) Aggregate Investment . Each Purchaser understands that his, her or its subscription for the Securities forms part of a larger offering of Securities by the Company as described herein. Each Purchaser understands that there is no minimum aggregate subscription required to close the Offering.

(n) Securities and Other Transactions . Other than consummating the transactions contemplated hereunder, the Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with the Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that the Purchaser first became aware of the proposed transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Units covered by this Agreement. Other than to other Persons party to this Agreement and its Affiliates and their respective investment advisors, agents, counsel and other advisors, the Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Such Purchaser has no present intent to effect a “change of control” of the Company as such term is understood under the rules promulgated pursuant to Section 13(d) of the Exchange Act.

(o) No Legal, Tax or Investment Advice . Each Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to him, her or it in connection with this Agreement and the transactions contemplated herein, including the prospective investment in the Series D Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares, constitutes legal, tax or investment advice. Each Purchaser has consulted such legal, tax and investment advisors as he, she or it, in his, her or its sole discretion, has deemed necessary or appropriate in the circumstances. The Purchaser is not relying on the Company or its counsel in this regard.

(p) Representations Regarding Senior Notes . Each Purchaser that is paying some or all of its Subscription Amount by surrendering and cancelling Senior Notes hereby further represents and warrants to the Company as follows: (i) such Purchaser is the beneficial and record owner of, with good and valid title to, the Senior Notes originally issued to it, free and clear of any and all pledges, liens, security interests, mortgage, claims, charges, restrictions, options, title defects or encumbrances; (ii) such Purchaser has not, in whole or in part, (x) assigned, transferred, hypothecated, pledged or otherwise disposed of the Senior Notes or its rights in such Senior Notes or under the Security Agreements, or (y) given any person or entity any transfer order, power of attorney or other authority of any nature whatsoever with respect to such Senior Notes which would limit the Holder’s power to transfer the Senior Notes hereunder; (iii) such Purchaser has the sole right and power to vote and dispose of the Senior

Notes, and none of such Senior Notes is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting or transfer of any of the Senior Notes, except for this Agreement; (iv) no additional consideration for any purpose shall be due to such Purchaser at Closing, with respect to the Senior Notes, other than the Securities; (vi) upon delivery of the Senior Notes to the Company for cancellation (as contemplated by this Agreement), the Company will receive good and marketable title to the Senior Notes, free and clear of all pledges, liens, security interests, mortgage, claims, charges, restrictions, options, title defects or encumbrances; (vi) the Senior Notes being surrendered for cancellation represent all of the Senior Notes of the Company in which such Purchaser owns any legal or beneficial interest; and (vii) no such Purchaser has employed any broker or finder or incurred any liability for any brokerage or investment banking fees, commissions, finders’ structuring fees, financial advisory fees or other similar fees in connection with any of the transactions contemplated by this Agreement.

The Company acknowledges and agrees that the Purchaser does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 3.2.

ARTICLE IV

REGISTRATION RIGHTS

4.1 Registration Rights . Each Purchaser and the Company agree that the Purchasers shall be entitled to the registration rights with respect to the Securities as set forth in the Registration Rights Agreement entered into in accordance with this Agreement.

ARTICLE V

CONDITIONS OF CLOSING

5.1 Closing Conditions in Favor of the Purchasers . The obligation of each of the Purchasers to deliver the Purchase Price to the Company in connection with the Closing is subject to the satisfaction, or the waiver by such Purchaser, on or prior to such payment, of each of the following conditions:

(a) Representations and Warranties . The representations and warranties of the Company contained herein shall be true and correct in all material respects as of the date hereof and as of the applicable Closing as though made on and as of such date (provided that representations and warranties which are confined to a specified date shall speak only as of such date).

(b) Performance . The Company shall have performed, satisfied and complied with, in all material respects, all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing, including the delivery of the items set forth in Section 2.2(a) of this Agreement.

(d) Series D Certificate of Designation . The Company shall have duly adopted, executed and filed with the Secretary of State of the State of Delaware (i) the Series D Certificate of Designation in the form attached hereto as Exhibit A and the Series D Certificate of Designation shall be in full force and effect under the laws of the State of Delaware as of the Closing Date and shall not have been amended or modified.

(e) Surrender of Minimum Amount . The Company shall have received subscriptions from Purchasers who are Note Holders that have agreed to surrender an aggregate principal amount of Senior Notes of not less than the Minimum Amount in consideration of the purchase of Units hereunder.

5.2 Closing Conditions in Favor of the Company . The entering into of this Agreement by the Company with each of the Purchasers, and the acceptance by the Company of such Purchaser’s Purchase Price, is subject to the satisfaction, or the waiver by the Company, at or prior to the applicable Closing, of each of the following conditions:

(a) Representations and Warranties . The representations and warranties of such Purchaser contained herein shall be true and correct in all material respects as of the date hereof and as of the applicable Closing as though made on and as of such date.

(b) Accredited Investor Certificate . Such Purchaser shall have completed and executed and delivered the applicable Accredited Investor Certificate.

(c) Performance . Such Purchaser shall have performed, satisfied and complied with, in all material respects, all other covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by him, her or it at or prior to the applicable Closing, including the delivery of the items set forth in Section 2.2(b) of this Agreement..

(d) Required Approval . The Company shall have received all Required Approvals for the applicable Closing.

ARTICLE VI

COVENANTS

6.1 Reservation of Common Stock . So long as any Purchaser owns any Series D Preferred Shares or Warrants, the Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue shares of Common Stock issued (i) upon conversion of the Series D Preferred Shares and (ii) upon the exercise of the Warrants issued as part of the Units purchased pursuant to this Agreement.

6.2 Securities Laws Disclosure; Publicity . The Company shall, by 5:30 p.m. (New York City time) on the fourth Trading Day immediately following the date hereof, file a Current Report on Form 8-K disclosing the material terms of the transactions contemplated hereby and including the form of this Agreement as an exhibit thereto. From and after the issuance of such Form 8-K, the Company shall have publicly disclosed all material, non-public information delivered to any Purchaser by the Company or any of its subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by this Agreement. The Company and the Purchasers shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor the Purchasers shall issue any such press release without the prior consent of the Company, with respect to any press release of any of the Purchasers, or without the prior consent of the Purchasers holding a majority of the Notes, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.

6.3 Use of Proceeds . The Company shall use the additional net proceeds from the sale of the Securities hereunder for general business and working capital purposes.

6.4 Listing of Common Stock; Reporting Status . The Company hereby agrees to use commercially reasonable efforts to maintain the listing of the Common Stock on the Nasdaq Stock Market, and as soon as reasonably practicable, to list all of the shares of Common Stock issuable upon conversion of the Series D Preferred Stock or upon the exercise of the Warrants thereon. Until the earlier of (i) the date on which the Purchaser shall have sold all of the Conversion Shares and Warrant Shares and (ii) the date on which the Purchaser may sell all of the Securities without restriction pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act (the “ Reporting Period ”), the Company shall timely file all reports required to be filed with the Commission pursuant to the Exchange Act, and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.

6.5 Certain Transactions and Confidentiality . Each Purchaser covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to Section 6.2 . Each Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to Section 6.2 , such Purchaser will maintain the confidentiality of the existence and terms of this transaction. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that unless a Purchaser possesses material, non-public information with respect to the Company, has entered into a confidentiality agreement with the Company, or otherwise is restricted in its trading activities with respect to the Company’s Common Stock, (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced; (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced; and (iii) no Purchaser shall have any duty of confidentiality to the Company or its Subsidiaries relating to this Agreement after the initial disclosure of the transactions contemplated by this Agreement.

6.6 Integration . The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities to the Purchasers in a manner that would require the registration under the Securities Act of the sale of the Securities to the Purchasers.

6.7 Transfer Restrictions . The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, to the Company or to an affiliate of a Purchaser or to an entity managed by a Purchaser (provided, in such case the prospective transferee agrees in all such instances in writing to be subject to the terms hereof to the same extent as if he or she were an original Purchaser hereunder), the Company may require the transferor thereof to provide to the Company an opinion of counsel, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement.

6.8 Limitations on Conversion and Exercise . Notwithstanding anything in this Purchase Agreement or any of the other agreements and instruments executed in accordance with this Purchase Agreement to the contrary, subject to receipt of the approval of the Company’s stockholders, the Company shall not issue, and no Purchaser shall be permitted to acquire or purchase (whether upon

conversion of the Series D Preferred Shares, payment of dividends on the Series D Preferred Shares, or exercise of the Warrants) any shares of Common Stock if and to the extent that the purchase and issuance of such shares of Common Stock would cause the Company to exceed the aggregate number of shares of Common Stock which the Company may issue or be deemed to have issued without breaching the Company’s obligations under the applicable rules and regulations of the Nasdaq Stock Market (including, without limitation, Nasdaq Listing Rule 5635) and such other Trading Market on which the Company’s shares of Common Stock are then listed or quoted for trading (the “ Exchange Cap ”). Accordingly, if stockholder approval would be required under the applicable listing rules of the Nasdaq Stock Market or such other Trading Market on which the Company’s shares of Common Stock are then listed or quoted for trading (the “ Principal Market ”), then in the absence of such stockholder approval, in no event shall a Purchaser be permitted to acquire shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the Units issued to the Purchaser hereunder on the Closing Date and the denominator of which is the total number of Units issued to all purchasers in the Offering on the Closing Date (with respect to each purchaser, the “ Exchange Cap Allocation ”). In the event that Purchaser shall sell or otherwise transfer any of the securities comprising the Units, the transferee thereof shall be allocated a pro rata portion of Purchaser’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee.

6.9 Stockholder Approval . Solely in the event that the Company determines that it is required in order to permit the full conversion of the Series D Preferred Shares (including in connection with the payment of dividends on the Series D Preferred Shares) or the full exercise of the Warrants issued pursuant to this Agreement into shares of Common Stock in accordance with applicable listing rules of the Principal Market (the “ Stockholder Approval ”), the Company shall, following its determination that such Stockholder Approval is required, at its next annual meeting of stockholders scheduled subsequent to such determination, and any subsequent special or annual meeting to the extent required, call a meeting of its stockholders for the purpose of obtaining the Stockholder Approval, with the recommendation of the Board of Directors that such proposal be approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. If the Company does not obtain Stockholder Approval at the first meeting, the Company shall call a meeting no less frequently than every 180 days thereafter to seek Stockholder Approval until the earlier of the date that Stockholder Approval is obtained or the Series D Preferred Shares and Warrants are no longer outstanding. Each Purchaser further agrees that it shall not be entitled to vote the shares of Common Stock of the Company issuable to it pursuant to the terms of this Agreement, including pursuant to the conversion of the Series D Preferred Shares or exercise of any Warrants, at any meeting of the Company’s stockholders convened to vote on a proposal to enable the Company to issue the shares of Common Stock underlying the Series D Preferred Shares and Warrants in excess of 19.99% of the issued and outstanding Common Stock of the Company.

ARTICLE VII

INDEMNIFICATION

7.1 Indemnification .

(a) The Company agrees to indemnify and hold harmless each Purchaser, its Affiliates, each of their officers, directors, employees and agents and their respective successors and assigns, from and against any losses, damages, or expenses which are caused by or arise out of (A) any breach or default in the performance by the Company of any covenant or agreement made by the Company in the this Agreement or in the other Transaction Agreements; (B) any breach of warranty or representation made by the Company in this Agreement or in the other Transaction Agreements; and (C) any and all actions, suits, proceedings, claims, demands, judgments, costs and expenses (including reasonable legal fees and expenses) incident to any of the foregoing.

(b) Each Purchaser agrees to indemnify and hold harmless the Company, its Affiliates, each of their officers, directors, employees and agents and their respective successors and assigns, from and against any losses, damages, or expenses which are caused by or arise out of: (A) any breach or default in the performance by such Purchaser of any covenant or agreement made by such Purchaser in this Agreement or in the other Transaction Agreements; (B) any breach of warranty or representation made by such Purchaser in this Agreement or in the other Transaction Agreements; and (C) any and all actions, suits, proceedings, claims, demands, judgments, costs and expenses (including reasonable legal fees and expenses) incident to any of the foregoing.

ARTICLE VIII

GENERAL

8.1 Termination . Solely in the event that the Closing has not been consummated on or before June 30, 2013, this Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties; provided, however , that (a) any Purchaser may elect to extend the foregoing date solely with respect to its purchase of the Securities hereunder and (b) any such termination will not affect the right of any party to sue for any breach by the other party (or parties).

8.2 Confidentiality . The Purchasers acknowledge that due to certain of the covenants contained herein or in the other Transaction Agreements, from time to time the Purchasers may come into possession of confidential information of the Company, including material, non-public information relating to the Company. The Purchasers hereby agree that (i) they shall keep all such information strictly confidential, applying, at a minimum, the same degree of care as it does to protect its own confidential information of a similar nature; (ii) shall only use such information in connection with the transactions contemplated by this Agreement; and (iii) shall not disclose any of such information other than: (a) to the Purchaser’s employees, representatives, directors, attorneys, auditors, or Affiliates who are advised of the confidential nature of such information (so long as any of the foregoing persons agree to be bound by the provisions of this Section), (b) to the extent such information presently is or hereafter becomes available on a non-confidential basis from any source of such information that is in the public domain at the time of disclosure, (c) to the extent disclosure is required by law (including applicable securities law), regulation, subpoena or judicial order or any administrative body or commission to whose jurisdiction the Purchasers are subject ( provided that notice of such requirement or order shall be promptly furnished to the Company in advance of such disclosure), (d) to assignees or participants or prospective assignees or participants who agree to be bound by the provisions of this Section, or (e) with the Company’s prior written consent. The Purchasers agree to be responsible for any breach of this agreement by any of the persons identified in Section 8.2(iii) . The Purchasers are aware that, under certain circumstances, the United States securities laws may prohibit a Person who has received material, non-public information from an issuer from purchasing or selling securities of such issuer or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such other Person is likely to purchase or sell such securities.

8.3 Fees and Expenses . Except as expressly set forth in this Agreement to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.

8.4 Amendments; Waivers . No provision of this Agreement may be amended or waived except in a written instrument signed, (i) in the case of an amendment, by the Company and Purchasers representing a Majority in Interest, or (ii) in the case of a waiver, by the party against whom enforcement of any such waiver is sought; provided that, in the case of waiver by or on behalf of all of the Purchasers, such written instrument shall be signed by Purchasers representing a Majority in Interest; and provided, further that that any amendment that would modify this Section 8.4 shall, in each case, require the approval of each Purchaser to which such amendment shall apply. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.

8.5 Notices . Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address referred to in this Section 8.5 prior to 5:00 p.m. (Eastern time) on a Business Day, (b) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address referred to in this Section 8.5 on a day that is not a Business Day or later than 5:00 p.m. (Eastern time) on any Business Day, (c) the Business Day following the date of deposit with a nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The addresses, facsimile numbers and e-mail addresses for such notices and communications are those set forth on the signature pages hereof, or such other address, facsimile number or e-mail address as may be designated in writing hereafter, in the same manner, by the relevant party hereto.

8.6 Headings . The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

8.7 Entire Agreement . This Agreement, together with the other Transaction Agreements contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such agreements and exhibits. At or after the Closing, and without further consideration, the parties hereto will make, do and execute and deliver, or cause to be made, done and executed and delivered, such further acts, deeds, assurances, documents and things as may be reasonably requested by any of the other parties hereto in order to give practical effect to the intention of the parties hereunder.

8.8 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Purchasers representing a Majority in Interest (other than by merger, consolidation or sale of all or substantially all of the Company’s assets). A Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of this Agreement that apply to the “ Purchasers .”

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

8.10 Governing Law . All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York, Borough of Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

8.11 Remedies . In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in this Agreement and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.

8.12 Execution . This Agreement may be executed by one or more of the parties hereto on any number of separate counterparts (including by facsimile or e-mail transmission), all of which when taken together shall be considered one and the same agreement. In the event that any signature is delivered by facsimile transmission or e-mail attachment, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or e-mail-attached signature page were an original thereof.

8.13 Survival; Severability . All representations and warranties made by the Company and each of the Purchasers herein will survive the execution of this Agreement, the Closing and the delivery to the Purchasers of the Securities being purchased and the payment therefor until the first anniversary of the Closing Date, except for those representations and warranties which speak as of a specific date. All covenants and other agreements set forth in this Agreement shall survive the Closing for the respective periods set forth therein and if no such period is specified until the first anniversary of the Closing Date. Notwithstanding anything to the contrary contained herein, Sections 7.1 and 8.4 shall survive for the applicable statute of limitations. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

8.14 Replacement of Certificates . If any certificate evidencing the securities issued or issuable hereunder is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in

exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity or security, if requested. The applicant for a new certificate under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement certificates.

8.15 Interpretation . The parties agree that each of them and/or their respective counsel has reviewed and had an opportunity to revise this Agreement and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments hereto. In addition, each and every reference to share prices and shares of capital stock in this Agreement shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. The word “including”, whenever used in this Agreement, shall be deemed to be followed by the phrase “without limitation”.

8.16 Independent Nature of Purchasers’ Obligations and Rights . The obligations of each Purchaser under any Transaction Agreement are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Agreement. Nothing contained herein or in any other Transaction Agreement, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Agreements. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Transaction Agreements, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been advised to retain its own representation, including its own separate legal counsel, in their review and negotiation of the Transaction Agreements.

[SIGNATURE PAGES TO FOLLOW]

IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.


AUTHENTIDATE HOLDING CORP.			Address for Notice: Connell Corporate Center 300 Connell Drive, 5th Floor Berkeley Heights, NJ 07922
			Attn:	President
By:			Fax:
	Name:	O’Connell Benjamin
	Title:	Chief Executive Officer and President

With a copy to (which shall not constitute notice):

Becker & Poliakoff, LLP 45 Broadway, 8 ^th Floor New York, NY 10006 Attn: Michael Goldstein Fax: 212-557-0295

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR PURCHASER FOLLOWS]

[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]

IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatories as of the date first indicated above.


Name of Purchaser:


Signature of Authorized Signatory of Purchaser :


Name of Authorized Signatory:


Title of Authorized Signatory:


Email Address of Authorized Signatory:


Facsimile Number of Authorized Signatory:


EIN Number:


Address for Notices to Purchaser:

Address for Delivery of certificated Securities for Purchaser (if not same as address for notices):

Total Subscription Amount: $

Securities Purchased, comprised of:


No. of Series D Preferred Shares:

No. of Common Stock Warrants:

¨ By checking this box, the Purchaser agrees that it will pay the some or all of the Total Subscription Amount indicated above by surrendering to the Company for cancellation one or more of Senior Notes held by such Purchaser, as indicated below. If the Purchaser’s Total Subscription Amount will be paid solely by the wire transfer of U.S. funds, leave this section blank.

Amount of Total Subscription Amount to be paid by surrender of Senior Notes $

Principal Amount of Senior Notes Owned by Purchaser and Issue Date:

1. Senior Note issued , 20 in the Principal Amount of $

2. Senior Note issued , 20 in the Principal Amount of $

SCHEDULE A

ACCREDITED INVESTOR CERTIFICATE

This Accredited Investor Certificate is being delivered to the Company pursuant to the Purchase Agreement. Capitalized terms used in this Accredited Investor Certificate, but not defined herein, have the respective meanings attributed to such terms in the Purchase Agreement. Investor agrees to furnish any additional information the Company deems necessary in order to verify the information provided below.

The Purchaser hereby acknowledges that the Company is relying on this Accredited Investor Certificate to determine the Purchaser’s suitability for investment in the Securities pursuant to the Securities Purchase Agreement (collectively, the “ Investment” ) and hereby represents and warrants and certifies that, as of the Closing, the Purchaser:


Category I	¨	The Purchaser is an individual (not a partnership, corporation, etc.) whose individual net worth, or joint net worth with his or her spouse, presently exceeds $1,000,000 (excluding the value of such Purchaser’s principal residence).

Category II	¨	The Purchaser is a corporation, partnership, business trust or a non profit organization within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, that was not formed for the specific purpose of acquiring the securities offered and that has total assets in excess of $5,000,000.

Category III	¨	The Purchaser is an individual (not a partnership, corporation, etc.) who reasonably expects an individual income in excess of $200,000 in the current year and had an individual income in excess of $200,000 in each of the last two years (including foreign income, tax exempt income and the full amount of capital gains and losses but excluding any income of the Purchaser’s spouse or other family members and any unrealized capital appreciation);

		Or

	¨	The Purchaser is an individual (not a partnership, corporation, etc.) who, together with his or her spouse, reasonably expects joint income in excess of $300,000 for the current year and had joint income in excess of $300,000 in each of the last two years (including foreign income, tax exempt income and the full amount of realized capital gains and losses).

Category IV	¨	The Purchaser is a director or executive officer of the Company.

Category V	¨	The Purchaser is a bank, savings and loan association or credit union, insurance company, registered investment company, registered business development company, licensed small business investment company, or employee benefit plan within the meaning of Title 1 of ERISA whose plan fiduciary is either a bank, insurance company or registered investment advisor or whose total assets exceed $5,000,000.

		Describe entity:


Category VI	¨	The Purchaser is a private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.

Category VII	¨	The Purchaser is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person (a person who either alone or with his or her purchaser representative(s) has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the prospective investment). A copy of the declaration of trust or trust agreement and a representation as to the sophistication of the person directing purchases for the trust is enclosed.

Category VIII	¨	The Purchaser is a self directed employee benefit plan for which all persons making investment decisions are “accredited investors” within one or more of the categories described above.

Category IX	¨	The Purchaser is an entity in which all of the equity owners are “accredited investors” within one or more of the categories described above. If relying upon this category alone, each equity owner must complete a separate copy of this agreement.

	¨	Describe entity:


Category X	¨	The Purchaser does not come within any of the Categories I – IX set forth above.

IN WITNESS WHEREOF, the Purchaser has duly executed this Accredited Investor Certificate as of the Closing.


IF THE PURCHASER IS AN ENTITY:


(Name of Entity – Please Print)

By:

Name:

Title:

IF THE PURCHASER IS AN INDIVIDUAL:


(Name – Please Print)


(Signature)




(Address)


(Telephone)


(Facsimile)


(E-Mail)

EXHIBIT A

CERTIFICATE OF DESIGNATION OF

SERIES D PREFERRED STOCK

EXHIBIT B

FORM OF COMMON STOCK PURCHASE WARRANT

EXHIBIT C

FORM OF REGISTRATION RIGHTS AGREEMENT

Exhibit 10.2

AUTHENTIDATE HOLDING CORP.

SUPPLEMENT NO. 1

SECURITIES PURCHASE AGREEMENT

DATED JUNE 11, 2013

This Supplement Number 1 (“ Supplement No. 1 ”) to the Securities Purchase Agreement (the “ Purchase Agreement ”) of Authentidate Holding Corp. (the “ Company ”) supplements the Purchase Agreement as provided for herein. This Supplement No. 1 should be read together with the original Purchase Agreement. Capitalized terms used in this Supplement No. 1 without definition have the same meaning specified therefore in the Purchase Agreement.

Put/Call Option Agreement

In connection with the consummation of the transactions contemplated by the Purchase Agreement, Mr. O’Connell Benjamin, the Chief Executive Officer of the Company and a member of its Board of Directors, and Mr. J. David Luce, a member of the Company’s Board of Directors, have granted a holder of Senior Notes an option to require them to purchase from him an aggregate of (i) $350,000 of shares of Series D Convertible Preferred Stock and (ii) 350,000 Common Stock Purchase Warrants to be issued pursuant to the Purchase Agreement (the “ Option Securities ”) in accordance with the terms and conditions of a certain Put/Call Option Agreement to be entered into at or prior to the consummation of the transactions contemplated by the Purchase Agreement. Under the Put/Call Option Agreement, if the holder declines to exercise its right to require the sale of such Option Securities to Messrs. Luce and Benjamin, then they shall thereafter have the right to purchase all of such Option Securities from the holder in accordance with the terms and conditions of the Put/Call Option Agreement.

The undersigned further confirms to Authentidate Holding Corp. that it has not relied upon the Preliminary Prospectus dated as of June 4, 2013, or any other documents filed in connection with the public offering of securities of the Company, in connection with the purchase of Series D Convertible Preferred Stock and Common Stock Purchase Warrants pursuant to the Purchase Agreement. The undersigned subscriber confirms that it has a pre-existing relationship with the Company.

THIS SUPPLEMENT NO. 1 IS AN INTEGRAL PART OF, AND SHOULD BE READ IN CONJUNCTION WITH, THE PURCHASE AGREEMENT. THE PURPOSE OF THIS SUPPLEMENT IS TO NOTIFY PURCHASERS OF THE INFORMATION DESCRIBED ABOVE. ALL PURCHASERS SHOULD CAREFULLY REVIEW THIS SUPPLEMENT NO. 1 AND THE PURCHASE AGREEMENT.

Please sign this Supplement No. 1 on the following signature page to acknowledge your receipt of this Supplement No. 1 and to reconfirm your execution of the Purchase Agreement and the obligations thereunder.

Very truly yours,

Authentidate Holding Corp.

O’Connell Benjamin,

Chief Executive Officer

ACKNOWLEDGMENT

The undersigned subscriber acknowledges receipt of this Supplement No. 1 and confirms its agreements pursuant to the Purchase Agreement.

Dated as of June , 2013


Corporation/Entity Signature :						Individual(s) Signature :


Print Name of Entity Subscriber						Signature

By
						Signature


Print Name and Title of						Print Name of Individual
Person Signing

						Print Name of Individual

Exhibit 10.3

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “ Agreement ”) is made as of June 11, 2013, among Authentidate Holding Corp., a Delaware corporation (the “ Company ”) and the parties set forth on the signature pages hereto (each, a “ Purchaser ” and collectively, the “ Purchasers ”).

Recitals

WHEREAS, the Company proposes to sell and issue shares of Series D Convertible Preferred Stock (the “ Series D Preferred Shares ”) and Common Stock Purchase Warrants (the “ Warrants ”) to the Purchasers pursuant to a Securities Purchase Agreement of even date herewith (the “ Purchase Agreement ”); and

WHEREAS, as a condition to its investment, the Purchasers have required that the Company enter into this Agreement with the Purchasers.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

Agreement

1. Certain Definitions . As used in this Agreement, the following terms shall have the following respective meanings:

“ Affiliated Fund ” shall mean, with respect to a Holder that is a limited liability company or a limited liability partnership, a fund or entity managed by the same manager or managing member or general partner or management company or by an entity controlling, controlled by or under common control with such manager or managing member or general partner or management company.

“ Closing Date ” means the Closing Date under the Purchase Agreement.

“ Commission ” shall mean the United States Securities and Exchange Commission or any successor agency.

“ Common Stock ” shall mean the common stock of Authentidate Holding Corp., par value $0.001 per share.

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

“ Holder ” shall mean the Purchaser, and any transferee of Registrable Securities who pursuant to Section 11 below is entitled to registration rights hereunder.

“ Initiating Holder ” means either (i) a holder of Series D Preferred Shares with an aggregate Stated Value (as defined in the Certificate of Designations, Preferences and Rights and Number of Shares of Series D Convertible Preferred Stock) of at least $2,000,000 or (ii) a holder of Series D Preferred Shares representing at least 50.1% of the then outstanding Series D Preferred Shares and the term “ Initiating Holders ” shall mean a group of holders of Series D Preferred Shares representing at least 50.1% of the then outstanding Series D Preferred Shares (provided that at that such time the aggregate Stated Value of the then outstanding Series D Preferred Shares is at least $5,000,000).

“ Majority Holders ” means at any time Holders of at least 50.1% of the then outstanding Registrable Securities.

“ Person ” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“ Registrable Securities ” shall mean: (a) shares of the Common Stock issued or issuable upon the conversion of the Series D Preferred Shares; (b) shares of capital stock of the Company issued as a dividend with respect to the Series D Preferred Shares; and (c) each of the shares of Common Stock which may be issued upon the exercise of the Warrants; provided , however , that with respect to any particular Registrable Security, such security shall cease to be a Registrable Security when, as of the date of determination, such security is: (i) sold pursuant to a registration statement or pursuant to Rule 144 under the Securities Act; (ii) sold in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale; (iii) sold by a person in a transaction in which rights under this Agreement are not assigned; or (iv) in the opinion of counsel to the Company, registration under the Securities Act is no longer required for subsequent public distribution of such security without volume limitations pursuant to Rule 144 promulgated under the Securities Act, or otherwise. In the event of any merger, reorganization, consolidation, recapitalization or other change in corporate structure affecting the Common Stock, such adjustment shall be made in the definition of “Registrable Securities” as is appropriate to prevent any dilution or increase of the rights granted hereunder as determined in good faith by the Board of Directors of the Company.

The terms “ register ,” “ registered ” and “ registration ” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act and the declaration or ordering of the effectiveness of such registration statement.

“ Registration Expenses ” shall mean all expenses incurred by the Company in complying with Sections 2 and 3 hereof, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses, and the expense of any special audits incident to or required by any such registration, but excluding all Selling Expenses.

“ Securities Act ” shall mean the Securities Act of 1933, as amended.

“ Selling Expenses ” shall mean all underwriting discounts, selling commissions, and stock transfer taxes applicable to the securities registered by the Holders and any fees of counsel to any Holder (other than as allowed as a Registration Expense).

-2-

2. Requested Registration .

(a) Request for Registration . If, at any time after the first anniversary of the execution of this Agreement, the Company shall receive from an Initiating Holder or Initiating Holders a written request that the Company file a registration statement under the Securities Act covering all or a part of the Registrable Securities, the Company will:

(i) promptly (but in any event with fifteen (15) days of receiving such request) give written notice of the proposed registration to all other Holders and all other security holders of the Company that possess registration rights granted by the Company; and

(ii) as soon as practicable, use commercially reasonable efforts to file and thereafter cause to become effective, the registration under the Securities Act of all Registrable Securities that the Company was requested to register pursuant to Section 2(a) of this Agreement such as would permit or facilitate the sale and distribution of all or any such portion of such Registrable Securities as are specified in such request, together with all or any such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within 20 days after receipt of such written notice from the Company and such other security holders of the Company that possess registration rights granted by the Company, as contemplated by Section 2(a)(i); provided , however , that the Company shall not be obligated to take any action to effect any such registration pursuant to this Section 2 :

(A) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

(B) prior to 60 days immediately following the effective date of any other registration statement pertaining to securities of the Company (other than a registration of securities pursuant to Rule 145 promulgated under the Securities Act or with respect to an employee benefit plan); or

(C) during the period starting with the date ninety (90) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred and eighty (180) days after the effective date of, a Company-initiated registration pursuant to Section 3 hereof; provided that at all times during any such period, the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.

(b) Subject to the foregoing clauses, the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of an Initiating Holder. If, however, the Company shall furnish to the Holder or Holders requesting a registration statement pursuant to this Section 2 a certificate signed by the President of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than 180 days after receipt of the request of the Initiating Holder or Initiating Holders; provided , however , that the Company may not utilize this right more than once in any twelve-month period, and provided, further , that the Company shall not register any securities for the account of itself or any other stockholder during such 180-day period (other than in a registration relating solely to the sale of securities of participants in a Company

-3-

stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, or a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities). The Company shall not be obligated to effect more than one registration pursuant to Section 2 of this Agreement.

(c) Underwriting . If the Initiating Holder or Initiating Holders, as the case may be, intend to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a part of such request and the Company shall include such information in its written notice to the other Holders. The right of any Holder to registration pursuant to this Section 2(c) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holder(s) and such Holder) to the extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders).

(i) Notwithstanding any other provision of this Section 2 , if the managing underwriter advises the Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then, the Company shall so advise all Holders and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among (A) all Holders requesting inclusion in the registration in proportion, as nearly as practicable, to the respective amounts of Registrable Securities originally requested by such Holders to be included in the Registration Statement and (B) all security holders of the Company that possess registration rights for other securities granted by the Company. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. If the underwriter or underwriters has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account if the underwriter so agrees.

(ii) If any Holder of Registrable Securities disapproves of the terms of the underwriting, such Holder may, subject to Section 4 hereof, decline to participate therein or elect to withdraw therefrom by written notice to the Company, the underwriter(s) and the other Holders. The Registrable Securities and/or other securities so withdrawn or not participating shall be withdrawn from registration; provided , however , that if by any withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the underwriter limitation in this Section 2(c) .

(d) Withdrawn Requests . The undersigned Holders agree that in the event the Company is requested to effect a registration pursuant to this Section 2 by the Initiating Holder(s) and thereafter, but before the effectiveness of such registration, any Holder that either acted as the Initiating Holder or that was part of a group of Holders that acted as the Initiating Holders, notifies the Company that it wishes to withdraw such request or to withdraw from participating in the group, then the following shall apply: (i) the Company may terminate the registration and the ability of such Holder to act as an Initiating Holder or to participate in a group acting as the Initiating Holders shall immediately terminate or (ii) the Company may elect to continue with the registration of the Registrable Securities (excluding those of the withdrawing Holder) and such registration shall in all respects continue to be treated as a requested registration pursuant to this Section 2.

-4-

3. Company Registration .

(a) Notice of Registration . If the Company shall determine to register any of its securities, either for its own account or the account of a security holder or holders exercising their respective registration rights (other than under Section 2 hereof), other than: (i) a registration relating solely to employee benefit plans (whether effected on Form S-8 or its successor); (ii) a registration relating to the offer and sale of debt securities; (iii) a registration relating to a corporate reorganization or other transaction under Rule 145 of the Securities Act (whether effected on Form S-4 or its successor); or (iv) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, the Company will:

(A) provide to each Holder written notice thereof at least seven days prior to the filing of the Registration Statement by the Company in connection with such registration; and

(B) subject to the terms hereof, include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests by such Holder or Holders, made within five days after the Company mails the written notice referred to above, by any Holder or Holders (a “ piggyback ” registration).

(b) Underwriting Cut-Backs and Allocation . In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 3 to include any of the Holders’ Registrable Securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters), and then only, subject to this Section 3(b) , in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering, is in such an amount that the underwriters determine in their sole discretion is incompatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in their sole discretion will not jeopardize the success of the offering. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated as follows: (i) first, to the Company for securities being sold for its own account, (ii) second, to the Holders requesting to include Registrable Securities, based on the pro rata percentage of Registrable Securities held by such Holders and (iii) third, to any other securityholders on a pro rata basis, based on the number of shares held (assuming conversion and exercise of rights to acquire capital stock). For purposes of the preceding sentence concerning apportionment, for any selling shareholder that is a holder of Registrable Securities and that is a venture capital fund or a partnership or corporation or limited liability company or other entity, the Affiliated Funds, partners, retired partners, members, retired members, parent or subsidiary company and shareholders of such holder, or the estates and family members of any such partners, retired partners, members, retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “ selling shareholder ,” and any pro-rata reduction with respect to such “selling shareholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling shareholder,” as defined in this sentence. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. The Holders’ right to have Registrable Securities included in the first registration statement filed by the Company may

-5-

be deferred to a subsequent registration statement filed by the Company, which deferral may be continued so long as the registration statements are pursuant to underwritten offerings and the underwriter determines in good faith that marketing factors require exclusion of some or all of the Registrable Securities held by the Holders, but such deferral shall be only to the extent of such required exclusion as determined by the underwriter.

(c) Other Covenants . If the registration is an underwritten registration, each Holder of Registrable Securities shall enter into an underwriting agreement in customary form with the underwriter and provide such information regarding Holder that the underwriter shall reasonably request in connection with the preparation of the prospectus describing such offering, including completion of FINRA Questionnaires.

(d) Right to Terminate Registration . The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 3 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration.

4. Expenses of Registration . All Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Sections 2 or 3 hereof shall be borne by the Company. All Selling Expenses relating to securities registered by the Holders shall be borne by the Holders of such securities pro rata on the basis of the number of shares so registered. Notwithstanding the foregoing, the Company shall not be required to pay for Registration Expenses pursuant to Section 2 if the registration request is subsequently withdrawn at the request of the Initiating Holders (which Holders shall bear such expenses); provided, however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their request, then the Holders shall not be required to pay any of such Registration Expenses. If the Company shall withdraw a registration initiated under Section 3 , the expenses of such withdrawn registration shall be borne by the Company.

5. Registration Procedures .

In the case of each registration, qualification, or compliance effected by the Company pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of such registration, qualification, and compliance and as to the completion thereof. In connection with any registration effected pursuant to this Agreement, the Company will prepare and file such amendments and supplements to its registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement. At its expense the Company will furnish such number of prospectuses and other documents incident thereto as a Holder from time to time may reasonably request. In connection with any registration effected pursuant to this Agreement, the Company shall also (to the extent not otherwise expressly required pursuant to this Agreement):

(a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective, and keep such registration statement continuously effective for a period that will terminate upon the earlier of (i) the date on which the distribution described in such registration statement is completed, and (ii) the date on which all Registrable Securities covered by such registration statement may be sold without any restrictions pursuant to Rule 144 (the “ Effectiveness Period ”); provided , however , that (i) the Effectiveness Period shall be extended for a period of time equal to: (A) the period the Holder refrains from selling any securities included in such registration at the request of an underwriter of Common Stock (or other securities) of the Company; or (B) the period beginning with the

-6-

Holder’s receipt of the notice described in Section 5(d) below and ending when the Company furnishes the amendment described in Section 5(d) to the Holders, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, the Effectiveness Period shall be extended, if necessary, to keep the registration statement effective until all such Registrable Securities are sold, provided that Rule 415, or any successor rule under the Securities Act, permits an offering on a continuous or delayed basis, and provided further that applicable rules under the Securities Act governing the obligation to file a post-effective amendment permit, in lieu of filing a post-effective amendment that (x) includes any prospectus required by Section 10(a)(3) of the Securities Act or (y) reflects facts or events representing a material or fundamental change in the information set forth in the registration statement, the incorporation by reference of information required to be included in (x) and (y) above to be contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration statement.

(b) Prepare and file with the SEC such amendments and supplements to such registration statement (including post-effective amendments) and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for the Effectiveness Period and if a registration statement is subject to review by the SEC, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the SEC.

(c) Use commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders and to do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder; provided , however , that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions (unless the Company is already qualified to do business or subject to service of process in that jurisdiction and except as may be required by the Securities Act).

(d) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. As promptly as practicable thereafter, the Company will prepare and file with the SEC, and furnish without charge to the appropriate Holders and managing underwriter(s), if any, an amendment or supplement to such registration statement or prospectus in order to cause such registration statement or prospectus not to include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and will furnish such copies thereof as the Holders or any underwriters may reasonably request.

(e) Furnish to the Holders, without charge, such number of copies of a prospectus, including a preliminary prospectus and any supplements or amendments thereto, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them.

(f) Otherwise use commercially reasonable efforts to comply, during the period that such registration statement is effective under the Securities Act, in all material respects with the Securities

-7-

Act and the Exchange Act and with all applicable rules and regulations of the SEC with respect to the disposition of all securities covered by such registration statement, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of at least twelve (12) months, beginning after the effective date of each registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.

(g) Use commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness and (ii) if such order is issued, (A) notify each Holder of Registrable Securities being offered or sold pursuant to such registration statement as promptly as practicable after becoming aware of the issuance by the SEC of any stop order or other suspension of effectiveness of the registration statement at the earliest possible time and (B) obtain the withdrawal of any such order at the earliest possible moment.

(h) Permit the Holders of Registrable Securities being included in such registration statement and their legal counsel, at such Holders’ sole cost and expense (except as otherwise specifically provided in this Agreement), to review and have a reasonable opportunity to comment on the registration statement and all amendments and supplements thereto at least three (3) Business Days prior to their filing with the SEC.

(i) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.

(j) Use commercially reasonable efforts to cause all such Registrable Securities registered pursuant to this Agreement to be listed on each national securities exchange or trading system on which similar securities issued by the Company are then listed.

(k) Cooperate with the Holders of Registrable Securities being offered pursuant to such registration statement to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be offered pursuant to such registration statement and enable such certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the Holders may request.

6. Covenants with Respect to Registration . In connection with the registration in which the Registrable Securities are included, the Company and each Holder covenant and agree as follows:

(a) The foregoing registration rights shall be contingent on the Holders furnishing the Company with such appropriate information as the Company shall reasonably request, including (A) such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least seven days prior to the first anticipated filing date of any Registration Statement, the Company shall notify each Holder of the information the Company requires from such Holder if such Holder elects to have any of the Registrable Securities included in the Registration Statement. A Holder shall provide such information to the Company at least two (2) Business Days prior to the first anticipated filing date of such Registration Statement if it elects to have any of the Registrable Securities included in the Registration Statement. Each Holder agrees to furnish to the Company a completed selling security holder questionnaire (a “ Questionnaire ”) in the form provided to it by the Company not less than two Business Days prior to the filing date of such

-8-

Registration Statement. The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any damages to such Holder who fails to furnish to the Company a fully completed Questionnaire at least two Business Days prior to the filing date. The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by it and, if required by the Commission, the natural persons thereof that have voting and dispositive control over its shares of Common Stock.

(b) Each Holder, by its acceptance of the Registrable Securities agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Holder has notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement. Each Holder agrees that, upon receipt of any notice from the Company that it must suspend sales of Common Stock pursuant to the Registration Statement, it will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities, until the Holder is advised by the Company that such dispositions may again be made.

(c) Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to a Registration Statement.

(d) Rule 415; Cutback . If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a registration statement filed pursuant to Section 2 or 3 hereof is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Holder to be named as an “underwriter”, if the Company believes, in its discretion and upon the advice of counsel, that the Registrable Securities are eligible for registration under Rule 415 or that such Holder is not an “underwriter” for the purposes of the Securities Act and the registration, the Company shall use commercially reasonable efforts to persuade the SEC that the offering contemplated by the registration statement is a valid secondary offering and not an offering by or on behalf of the issuer for the purposes of Rule 415 and that such Holder is not an “underwriter.” Such Holder shall provide to the Company in writing all information requested by the Company to support such Holder’s contention that it is not an “underwriter.” Such Holder shall have the right to participate or have its counsel participate in any meetings or discussions with the SEC regarding the SEC’s position (unless in the reasonable opinion of the Company or its counsel, such participation will be to the detriment to the Company in that it may cause undue delays in the registration process or for other reasons) and to comment or have their counsel comment on any written submission made to the SEC with respect thereto. No such written submission regarding the foregoing specifying a Holder shall be made to the SEC to which the Holders’ counsel reasonably objects. The Company shall not agree to name any Holder as an “underwriter” in such registration statement without the prior written consent of such Holder. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section, the SEC refuses to alter its position, the Company shall (i) remove from the registration statement such portion of the Registrable Securities (the “ Cut Back Shares ”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case as the SEC may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “ SEC Restrictions ”). Upon the SEC’s initial declaration that the Registration Statement is effective, the Company shall no longer have any obligations under this Agreement to register the Cut Back Shares.

(e) Each Holder agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay (as defined below) or (ii) the happening of an event pursuant to Section 5(d) hereof, such Holder will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities, until the Holder is

-9-

advised by the Company that such dispositions may again be made. The Company may suspend the use of any prospectus included in any Registration Statement contemplated by this Agreement in the event that the Company determines in good faith that the suspension of the use of any prospectus is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related prospectus so that such Registration Statement or prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the prospectus in light of the circumstances under which they were made, not misleading (an “ Allowed Delay ”); provided , that the Company shall promptly (a) notify each Holder in writing of the suspension of and the reasons for such suspension, but shall not (without the prior written consent of a Holder) disclose to such Holder any material non-public information giving rise to an Allowed Delay, (b) advise the Holders in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use reasonable best efforts to terminate such suspension as promptly as practicable.

7. Termination of Registration Rights . The registration rights granted pursuant to this Agreement shall terminate on the earlier of: (i) four (4) years after the closing of the sale by the Company of the Series D Preferred Shares pursuant to the Purchase Agreement; or (ii) as to any Holder, at such time as Rule 144 or another similar exemption is available for the sale without restriction or limitation of all of such Holder’s (together with any person with whom such Holder is required to aggregate sales under Rule 144) shares. At such time as a Holder may resell its Registrable Securities without restriction (within the scope of clause (ii) of this Section 7 , the Registrable Securities held by such Holder will not be considered “then outstanding shares of Registrable Securities” and the consent of such Holder shall not be counted for purposes of obtaining the majority consent required for purposes of amending this Agreement pursuant to Section 12(e) .

8. Lock-up Agreement .

(a) In consideration for the Company agreeing to its obligations under this Agreement, each Holder of Registrable Securities and each transferee pursuant to Section 11 hereof agrees, in connection with a registration of the Company’s securities under the Securities Act, upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, not to: (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such securities are then owned by the Holder or are thereafter acquired); or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180 days from the effective date of such registration statement, the “ Lock-up Period ”) as may be requested by the Company or such managing underwriters; provided that if (A) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the Lock-up Period, or (B) prior to the expiration of the Lock-up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-up Period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event to allow any managing underwriter to comply with FINRA Rule 2711(f)(4) (or any comparable rule subsequently adopted by the Financial Industry Regulatory Authority). In no event, however, will the restricted period

-10-

extend beyond 215 days after the effective date of the registration statement. Each Holder further agrees to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of an underwritten public offering. Each Holder agrees that the Company may instruct its transfer agent to place stop-transfer notations in its records to enforce the provisions of this Section 8 until the end of such period. This Section 8 shall supersede any conflicting provision of Section 2 or Section 3 above.

(b) The foregoing obligations described in this Section 8 shall not apply to a registration relating solely to employee benefit plans, or to a registration relating solely to a transaction pursuant to Rule 145 under the Securities Act. Any release of any person from the lock up restrictions, at any time during the market stand-off time period, shall be done pro rata among the Holders of Registrable Securities, so that each Holder of Registrable Securities may sell, transfer or otherwise dispose of an equal percentage of his, her or its shares originally subject to the lock-up restrictions. If any person described in this Section 8(b) is released from the agreements referenced therein, the Holders of Registrable Securities shall be released to the same extent from the lockup agreements described in Section 8(a) .

9. Indemnification .

In the event any Registrable Securities are included in a registration statement under this Agreement:

(a) To the extent permitted by law, the Company will indemnify each Holder, each of its officers, directors and partners and such Holder’s legal counsel and independent accountants, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or alleged violation by the Company of the Securities Act or the Exchange Act or the securities laws of any state or any rule or regulation thereunder, and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse each such Holder, each of its officers, directors and partners and such Holder’s legal counsel and independent accountants, and each person controlling such Holder, for any legal and any other expenses reasonably as incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action; provided , however , that (i) in the event that any amounts reimbursed by the indemnifying party hereunder are determined by a final, non-appealable judgment by a court or arbitral tribunal, to have resulted primarily from an indemnified party’s gross negligence, bad faith or willful misconduct, such indemnified party shall promptly repay such amounts to the indemnifying party and (ii) the Company shall not be liable in any case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with information furnished to the Company by such Holder; and provided further , that the Company will not be liable to any such person or entity with respect to any such untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus that is corrected in the final prospectus filed with the Commission pursuant to Rule 424(b) promulgated under the Securities Act (or any amendment or supplement to such prospectus) if the person asserting any such loss, claim, damage or liability purchased securities but was not sent or given a copy of the prospectus (as amended or

-11-

supplemented) at or prior to the written confirmation of the sale of such securities to such person in any case where such delivery of the prospectus (as amended or supplemented) is required by the Securities Act, unless such failure to deliver the prospectus (as amended or supplemented) was a result of the Company’s failure to provide such prospectus (as amended or supplemented). Notwithstanding the foregoing, the indemnity agreement contained in this Section 9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld).

(b) Each Holder will, severally and not jointly, indemnify and hold harmless the Company, each of its directors and officers and its legal counsel and independent accountants, each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers, directors and partners and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company, such other Holders, such directors, officers, legal counsel, independent accountants, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with information furnished to the Company by such Holder; provided , however , that the obligations of such Holders hereunder shall be limited to an amount equal to the gross proceeds to each such Holder of Registrable Securities sold as contemplated herein, except in the case of fraud or willful misconduct by such Holder. Such indemnity shall remain in full force and effect, regardless of any investigation by or on behalf of the Company or any such director, officer or controlling Person and shall survive the transfer of such securities by such Holder.

(c) Each party entitled to indemnification under this Section 9 (the “ Indemnified Party ”) shall give notice to the party required to provide indemnification (the “ Indemnifying Party ”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided , however , that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld) and the Indemnified Party may participate in such defense at such Indemnified Party’s expense; provided , however , that an Indemnified Party shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential conflict of interests between such Indemnified Party and any other party (including the Indemnifying Party) represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent, but only to the extent, that the Indemnifying Party’s ability to defend against such claim or litigation is actually prejudiced as a result of such failure to give notice. No Indemnifying Party in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.

-12-

(d) If the indemnification provided for in this Section 9 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage or expense referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations, provided , however , that the obligations of such Holders hereunder shall be limited to an amount equal to the total proceeds to each such Holder of Registrable Securities sold as contemplated herein, except in the case of fraud or willful misconduct by such Holder. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with an underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

(f) The obligations of the Company and Holders under this Section 9 shall survive the completion of any offering of Registrable Securities in a registration statement under this Agreement and the termination of this Agreement.

10. Information by Holder . The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Agreement.

11. Transfer of Rights . The rights granted hereunder to cause the Company to register securities may be assigned to a transferee or assignee (but only with all related obligations) (a) of Holder who acquires at least 50% of the Registrable Securities originally purchased by Holder (or all of such Holder’s shares, if less) (as adjusted for stock splits, stock dividends, recapitalizations, reclassifications, combinations and the like); or (b) (i) that is a subsidiary, parent, partner, limited partner, retired partner, member, retired member or shareholder of a Holder or that is an Affiliated Fund; provided that the assignees appoint a single attorney-in-fact for the purpose of exercising any rights, receiving notices or taking any action under this Agreement; and provided, further, in each case: (A) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned; (B) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement, including, without limitation, the provisions of Section 8 hereof; and (C) such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Securities Act. For the purposes of determining the number of shares of Registrable Securities held by a transferee or assignee, the holdings of transferees and assignees of (x) a partnership who are partners or retired partners of such partnership, (y) a limited liability company who are members or retired members of such limited liability company (including spouses and ancestors, lineal descendants and siblings of such partners or members who acquire Registrable Securities by gift, will or intestate succession) or (z) a corporation who are affiliates of such corporation shall be aggregated together and with the partnership or limited liability company.

-13-

12. General Provisions .

(a) Aggregation . For the purposes of this Agreement, the number of shares of Registrable Securities held by a Holder shall include the holdings of its Affiliates, and such holdings shall be aggregated together.

(b) Governing Law . This Agreement shall be governed by and interpreted in accordance with the laws of the New York, without giving effect to principles of conflicts of laws.

(c) Entire Agreement . This Agreement constitutes the full and entire understanding among the parties regarding the subject matter hereof and supersedes all prior agreements and understandings between them or any of them as to such subject matter.

(d) Notices . All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed: (a) if to a Holder, to such Holder’s address as set forth in the books and records of the Company or to such other address as such Holder shall have furnished to the Company in writing; (b) if to any other person or entity who may become a Holder pursuant to this Agreement, to such address as such person or entity shall have furnished the Company in writing, or, until any such holder or entity so furnishes an address to the Company, then to the address of the last holder of such Registrable Securities who has so furnished an address to the Company; (c) if to the Company, to its principal executive offices, as set forth in the Purchase Agreement, and addressed to the attention of the Chief Executive Officer, or to such other address as the Company shall have furnished to the other parties hereto. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given: (i) when delivered if delivered personally; (ii) 24 hours after deposit with a nationally-recognized overnight courier service; or (iii) 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.

(e) Amendment and Waivers . Any provision of this Agreement may be amended, waived or modified upon the written consent of: (a) the Company and (b) the Majority Holders; provided , however , that the foregoing notwithstanding, the rights of any individual Holder shall not be amended or waived without the prior written consent of such holder if such amendment or waiver (a) is adverse to such holder in a manner that differs from how similarly situated holders of Registrable Securities are affected or (b) reduces or alters the rights of any Holder vis-à-vis any other Holder. Any Holder may waive any of his or her rights or the Company’s obligations hereunder without obtaining the consent of any other Holder; provided, however that any such waiver on any party’s part of any breach, default or noncompliance under the Agreement or any waiver on such party’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. The Company shall give prompt written notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination or waiver. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. All remedies, either under this Agreement, by law or otherwise afforded to any party, shall be cumulative and not alternative.

(f) Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one instrument.

-14-

(g) Execution and Delivery . A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof.

(h) Jurisdiction; Venue. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York, Borough of Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

(i) Adjustments for Stock Splits, Etc . Wherever in this Agreement there is a reference to a specific number of shares of Common Stock or preferred stock of the Company of any class or series, then, upon the occurrence of any subdivision, combination or stock dividend of such class or series of stock, the specific number of shares so referenced in this Agreement shall automatically be proportionately adjusted to reflect the effect on the outstanding shares of such class or series of stock by such subdivision, combination or stock dividend.

(j) Costs And Attorneys’ Fees . In the event that any action, suit or other proceeding is instituted concerning or arising out of this Agreement or any transaction contemplated hereunder, the prevailing party shall recover all of such party’s reasonable costs and attorneys’ fees incurred in each such action, suit or other proceeding, including any and all appeals or petitions therefrom.

(k) Assignments and Transfers by the Company . This Agreement may not be assigned by the Company (whether by operation of law or otherwise) without the prior written consent of the Holders, provided, however , that in the event that the Company is a party to a merger, consolidation, share exchange or similar business combination transaction in which the Common Stock is converted into the equity securities of another entity, the agreements executed by the Company shall expressly provide that (and such transaction shall be conditioned upon the inclusion of the following provisions) from and after the effective time of such transaction: (i) such entity shall assume, and by virtue of such transaction be deemed to have assumed, the obligations of the Company hereunder, (ii) the term “Company” shall be deemed to refer to such entity, and (iii) the term “Registrable Securities” shall be deemed to include the securities received by the Holders in connection with such transaction unless such securities are otherwise freely tradable by the Holders after giving effect to such transaction.

-15-

(l) Successors and Assigns . Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties (including transferees of any of the Series D Preferred Stock or any Common Stock issued upon conversion thereof). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

(m) Invalidity of Provisions . In the case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and such invalid, illegal and unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

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

[Remainder of Page Intentionally Left Blank]

-16-

IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement as of the date set forth above.


“COMPANY”	Authentidate Holding Corp.

	By:
		Name:
		Title:

IN WITNESS WHEREOF, the undersigned has caused this Registration Rights Agreement to be duly executed by its authorized signatories as of the date first indicated above.


“PURCHASER”				[				]



				By:

				Name:

				Title:

[PURCHASER SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

Exhibit 10.4

PUT/CALL OPTION AGREEMENT

THIS PUT/CALL OPTION AGREEMENT (this “ Agreement ”) is entered into as of June 11, 2013, by and between Adam Robinson (the “ Holder ”) and the individual grantors set forth on the signature page to this Agreement (the “ Grantors ”).

RECITALS

A. WHEREAS, the Holder and Authentidate Holding Corp. (the “ Company ”) have entered into a Securities Purchase Agreement (the “ Purchase Agreement ”) dated as of the date hereof (the “ Effective Date ”);

B. WHEREAS, pursuant to the Purchase Agreement, the Holder purchased (i) 75,000 shares of the Company’s Series D Convertible Preferred Stock (“ Series D Shares ”) and (ii) 750,000 of the Company’s Common Stock Purchase Warrants (the “ New Warrants ”);

C. WHEREAS, in order to induce the Holder to enter into the Purchase Agreement, in each case on the terms and conditions of this Agreement, (a) the Grantors hereby desire to grant to the Holder the right to sell to the Grantors (i) an aggregate of 35,000 Series D Shares (the “ Option Shares ”) and (ii) an aggregate of 350,000 New Warrants (the “ Option Warrants ” and together with the Option Shares, the “ Option Securities ”) and (b) the Holder hereby desires to grant to the Grantors the option to purchase from the Holder the Option Securities.

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties mutually agree as follows:

AGREEMENT

Section 1.

GRANT OF PUT OPTION

1.1 Grant of Put Option. Grantors hereby grant to Holder an option to sell to Grantors (the “ Put Option ”), and upon exercise, Grantors shall have the obligation to purchase from Holder all, but not less than all, of Holder’s ownership interest in the Option Securities for an aggregate purchase price of $350,000, subject to such other terms and conditions set forth herein. Each Grantor is obligated, on the exercise by the Holder of the Put Option, to purchase from the Holder half of the Option Securities, for an amount equal to $175,000. Each Grantor’s obligations hereunder are several and not joint.

1.2 Exercise of Put Option; Closing.

(a) Holder may exercise the Put Option with regard to the Option Securities by giving written notice thereof to Grantors (the “ Put Option Exercise Notice ”) at any time during the period commencing on October 15, 2013 and ending at 5:00 p.m. (New York Time) on November 15, 2013 (“ Put Option Period ”). The Put Option Exercise Notice shall set forth the date of the closing (the “ Put Option Closing ”) of the exercise of the Put Option (the “ Put Option Closing Date ”), which date shall occur at least ten (10) business days from the date the Holder delivers the Put Option Exercise Notice to Grantors, or such other date as is mutually agreed upon in writing between the Holder and Grantors.

(b) Upon the terms and conditions herein set forth, at the Put Option Closing, Holder shall convey, sell, transfer, assign and deliver all of its rights, title and interest in and to half of the Option Securities to each Grantor, free of all liens, charges, encumbrances or restrictions of any kind or nature, and each Grantor shall purchase half of the Option Securities from Holder, in accordance with the terms

of this Agreement. At the Put Option Closing, (i) each Grantor shall make payment of $175,000 to the Holder in immediately available U.S. funds, delivered to the account designated therefor by the Holder and (ii) Holder shall deliver to each Grantor the certificate or certificates representing half of the Option Securities, duly executed for transfer, or accompanied by stock powers duly executed in blank (with a medallion guarantee or such other evidence of signature as the Company’s transfer agent may require) transferring such Option Securities to each such Grantor. From and after the Put Option Closing, all rights of the Holder with respect to the Option Securities shall cease, and each Grantor shall legally and beneficially own half of such Option Securities.

Section 2.

CALL OPTION

2.1 The Call Option . In the event that Holder has not exercised the Put Option prior to the expiration of the Put Option Period, Grantors shall have the right and option, but not the obligation, (the “ Call Option ”) to purchase all, but not less than all, of the Option Securities during the period commencing at 5:01 p.m. (New York Time) on the last day of the Put Option Period and expiring at 5:00 p.m. (New York Time) on December 15, 2013 (the “ Call Period ”). To exercise the Call Option, the Grantors must both agree to exercise the Call Option. Upon exercise of the Call Option, each Grantor shall be obligated to purchase half of the Option Securities for an amount equal to $175,000. Each Grantor’s obligations hereunder are several and not joint. For the avoidance of doubt, the Call Option is not exercisable, and Grantors shall have no right to exercise the Call Option if either one of the Grantors failed to make the payment of $175,000 at a scheduled Put Option Closing following receipt of a Put Option Exercise Notice of Holder’s election to exercise the Put Option.

2.2 Exercise of Call Option; Closing.

(a) Grantors may exercise the Call Option with regard to the Option Securities by giving written notice thereof to Holder (the “ Call Option Exercise Notice ”) at any time during the Call Period. The Call Option Exercise Notice shall set forth the date of the closing (the “ Call Option Closing ”) of the exercise of the Call Option (the “ Call Option Closing Date ”), which date shall occur at least ten (10) business days from the date the Grantors deliver the Call Option Exercise Notice to Holders, or such other date as is mutually agreed upon in writing between the Holder and Grantors. Each of the Call Option Closing Date and the Put Option Closing Date is referred to herein as the “ Closing Date ”. If the Call Option is exercised, Holder shall be obligated to sell, and each Grantor shall be obligated to purchase, half of the Option Securities on the following terms and conditions.

(b) Upon the terms and conditions herein set forth, at the Call Option Closing, Holder shall convey, sell, transfer, assign and deliver all of its rights, title and interest in and to half of the Option Securities to each Grantor, free of all liens, charges, encumbrances or restrictions of any kind or nature, and each Grantor shall purchase half of the Option Securities from Holder, in accordance with the terms of this Agreement. At the Call Option Closing, (i) each Grantor shall make payment of $175,000 to the Holder in immediately available U.S. funds, delivered to the account designated therefor by the Holder and (ii) Holder shall deliver to each Grantor the certificate or certificates representing half of the Option Securities, duly executed for transfer, or accompanied by stock powers duly executed in blank (with a medallion guarantee or such other evidence of signature as the Company’s transfer agent may require) transferring such Option Securities to each such Grantor. From and after the Call Option Closing Date, all rights of the Holder with respect to the Option Securities shall cease, and each Grantor shall legally and beneficially own half of such Option Securities.

Section 3.

HOLDER’S REPRESENTATIONS, WARRANTIES AND COVENANTS

3.1 Representations and Warranties . Holder hereby represents and warrants to Grantors that the statements contained in this Section 3 are correct and complete as of the Effective Date, and will be correct and complete as of the Closing Date:

(a) Power and Authority . Holder has full power and authority to enter into and perform its obligations hereunder and to consummate the transactions herein in accordance with the terms, provisions and conditions hereof. Holder has authorized the execution, delivery and performance of this Agreement and the transaction contemplated by this Agreement.

(b) No Violations . Neither the execution nor the delivery of this Agreement and the consummation of the transactions contemplated hereby, by Holder, will (A) violate, conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which Holder is a party or by which any of the Option Securities are subject or (B) violate any applicable law, statute, treaty, rule, regulation, permit, order, code, judgment, decree, injunction or writ issued by any court of governmental authority to which Holder or the Option Securities are subject.

(c) Valid, Binding and Enforceable Obligation . This Agreement has been duly and validly executed by Holder, and, assuming due authorization, execution and delivery of this Agreement by Grantors, constitutes a valid, binding, and enforceable obligation, enforceable against Holder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally and by general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law.

(d) Additional Consents . No filing, registration, qualification, notice, consent, approval or authorization to, with or from any individual, corporation, partnership, trust, limited liability company or other entity is necessary in connection with the execution and delivery of this Agreement, or the consummation by Holder of the transactions contemplated hereby.

(e) Ownership of the Option Securities . Upon the closing of the transactions contemplated by the Purchase Agreement, Holder shall be the sole record and beneficial owner of the Option Securities, free and clear of any lien, security interest, claim or other encumbrance (other than pursuant to the Securities Act of 1933, as amended) and at the closing of either the Put Option or Call Option, as the case may be, Holder shall transfer and deliver to the Grantors good and valid title to such Option Securities free and clear of any lien, security interest, claim or other encumbrance and Grantors shall acquire clean title to the Option Securities. Holder has not granted any option or other right to acquire the Option Securities, except as provided herein.

(f) Knowledge and Information . Holder agrees and acknowledges that the Grantors are, or may be, in possession of material, nonpublic information concerning the Company that is not known to Holder and that neither the Company nor the Grantors has disclosed to Holder. Holder is voluntarily assuming all risks associated with the transactions contemplated by this Agreement and expressly warrants and represents that, except as expressly set forth herein, neither the Company nor any Grantor has made, and Holder disclaims the existence of or its reliance on, any representation by the Company or the Grantors concerning the Company.

3.2 Restriction on Transferability .

(a) Holder hereby agrees that at all times during the period commencing with the execution and delivery of this Agreement and, if the Grantors have not exercised the Call Option by such time, expiring at 5:01 p.m. on the Termination Date (as defined below), the Holder shall not, except (i) as set forth in this Agreement, and (ii) as the result of the death of such Holder, Transfer any of the Option Securities owned by such Holder, or discuss, negotiate, make an offer or enter into an agreement, commitment or other arrangement with respect thereto. As used herein, the term “ Transfer ” means, with respect to any security, the direct or indirect assignment, sale, transfer, tender, exchange, pledge, hypothecation, or the grant, creation or suffrage of a lien, security interest or encumbrance in or upon, or the gift, placement in trust, or the Constructive Sale or other disposition of such security (including transfers by testamentary or intestate succession or otherwise by operation of law) or any right, title or interest therein (including, but not limited to, any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or the record or beneficial ownership thereof, the offer to make such a sale, transfer, Constructive Sale or other disposition, and each agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. As used herein, the term “ Constructive Sale ” means with respect to any security a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly materially changing the economic benefits and risks of ownership.

(b) Holder understands and agrees that if such Holder attempts to Transfer any of the Option Securities owned by such Holder other than in compliance with this Agreement, the Company shall not, and each Holder hereby unconditionally and irrevocably instructs the Company not to, (i) permit any such Transfer on its books and records or (ii) issue a new certificate representing any of the Option Securities owned by such Holder.

(c) The Holder agrees that each of the certificates representing the Option Securities shall bear a legend substantially as follows, as applicable:

“The securities represented by this certificate are subject to certain restrictions on transferability set forth in that certain Agreement dated as of June , 2013, as may be amended or modified from time to time. A copy of the Agreement is available for inspection at the offices of the Company.”

Section 4.

GRANTOR REPRESENTATIONS AND WARRANTIES

4.1 Each Grantor, severally and not jointly, represents and warrants to Holder with respect only to itself, that the statements in this Section 4 are correct and complete as of the date hereof, and will be correct and complete on the Closing Date.

(a) Power and Authority . Each Grantor has full power and authority to enter into and perform its obligations hereunder and to consummate the transactions herein contemplated in accordance with the terms, provisions and conditions hereof. Each Grantor has duly and validly authorized the execution, delivery and performance of this Agreement and the transaction contemplated by this Agreement.

(b) Valid, Binding and Enforceable Obligations . This Agreement has been duly and validly executed by each Grantor and, assuming due authorization, execution and delivery of this Agreement by the Holder, constitutes a valid, binding and enforceable obligation, enforceable against Grantors in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally and by general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law.

(c) No Violations . Neither the execution or delivery by each Grantor of this Agreement, nor the consummation of the transactions contemplated hereby will (A) violate, conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which each Grantor is a party or by which it or any of its assets is subject or (B) violate any applicable law, statute, treaty, rule, regulation, permit, order, code, judgment, decree, injunction or writ issued by any court of governmental authority to which each Grantor is subject.

(e) Investment Representations . Each Grantor acknowledges that he has full knowledge of the business, affairs and prospects of the Company. Each Grantor is an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act of 1933, as amended, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the transactions contemplated under this Agreement. Each Grantor is acquiring the Option Securities for his own investment purposes, with no intention of distributing or reselling any of the Option Securities or any interest therein.

Section 5.

MISCELLANEOUS

5.1 Effectiveness of Agreement; Termination of Rights. The Grantors and Holder hereby agree that this Agreement, and all rights granted hereunder, shall only become effective and binding on the parties upon the Effective Date of the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Put Option and Call Option rights granted herein shall expire and be of no force or effect, and this Agreement shall terminate upon the first to occur, if any, of the following: (i) the mutual consent of the parties given at any time prior to October 15, 2013; (ii) in the event the closing, as contemplated under the Purchase Agreement, does not occur on or before June 30, 2013, or (iii) upon the expiration of the Call Period if the Grantors have not exercised the Call Option by such time (the first to occur, if any, of the foregoing events may be referred to as the “ Termination Date ”).

5.2 Governing Law and Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to the choice of law provisions thereof. The parties agree that the exclusive jurisdiction and venue of any action with respect to this Agreement shall be in the Supreme Court of New York for the County of New York or the United States District Court for the Southern District of New York. Each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for the purpose of such action. The parties agree that service of process in any such action may be affected in the manner provided for delivery of notices set forth above.

5.3 Assignment. Neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by any of the parties hereto without the prior written consent of the other parties hereto.

5.4 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

5.5 Survival of Obligations; Severability . The rights and obligations of the parties shall survive the execution of this Agreement and the transfer of the Option Securities to Grantors and payment by Grantors therefor. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

5.6 Amendment and Waiver. This Agreement may not be changed or modified or terminated unless by written agreement or other written instrument duly executed by all parties. No provision of this Agreement may be waived except in a written instrument signed by the party against whom enforcement of any such waiver is sought. No waiver of any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.

5.7 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a United States recognized overnight courier, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or at such other address as such party may designate by ten (10) days’ advance written notice to the other parties hereto.

5.8 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

5.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which will be one and the same document. Facsimiles and electronic copies in portable document format (“ PDF ”) containing original signatures shall be deemed for all purposes to be originally signed copies of the documents that are the subject of such facsimiles or PDF versions.

5.10 Transfer Taxes. All excise, transfer, stamp, documentary, filing, recordation and other similar taxes which may be imposed or assessed as the result of any payment related to the transfer of the Option Securities hereunder, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties, shall be borne by the Grantors.

5.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral, with respect to the same subject matter.

5.12 Own Counsel . Each party to this Agreement has obtained the advice of its own legal counsel with respect to this Agreement and the transactions contemplated hereby. Becker & Poliakoff, LLP represents the Company and does not represent either the Holder or the Grantors.

5.13 No Reliance. In executing this Agreement, the parties have not relied and do not rely on any statements, inducements, promises, or representations made by the other party or their agents, representatives, or attorneys with regard to the subject matter, basis, or effect of this Agreement, other

than as expressly set forth herein. Each party acknowledges that it has freely executed this Agreement after independent investigation, with the advice of independent counsel and without fraud, duress or undue influence, and that it understands its content.

5.14 Due Execution . Each party represents and warrants that it has full right, power, and authority to enter into this Agreement, and to perform its obligations and duties under this Agreement.

5.15 Construction. The language of this Agreement shall be construed as a whole, according to its fair meaning, and not strictly for or against either of the parties. For purposes of construction, this Agreement shall be deemed to have been drafted by all the parties, and no ambiguity shall be resolved against any party by virtue of his or her participation in the drafting of this agreement.

[signatures on following page]

IN WITNESS WHEREOF the parties have executed this Agreement on the date first set forth above.


HOLDER:		Adam Robinson




Name:		Adam Robinson

Address for Notices:

93 Leonard Street, Apt. 6

New York, N.Y. 10013


GRANTOR:		O’Connell Benjamin




Name:		O’Connell Benjamin

Purchase Obligation: Half of the Options Securities, for a price of $175,000.00

Address for Notices:

300 Connell Drive, 5 ^th Floor

Berkeley Heights, N.J. 07922


GRANTOR:		J. David Luce




Name:		J. David Luce

Purchase Obligation: Half of the Options Securities, for a price of $175,000.00

Address for Notices:

3144 Casseekey Island Road

Jupiter, Florida 33477

Exhibit 10.5

AMENDMENT NO. 2 TO BOARD NOMINATION AND OBSERVER AGREEMENT

This Amendment No. 2 to the Board Nomination and Observer Agreement (this “ Amendment ”) is made as of June 11, 2013 (the “ Amendment Date ”), among Authentidate Holding Corp., a Delaware corporation (the “ Company ”) and Lazarus Investment Partners, LLLP, a limited liability partnership (the “ Stockholder ”). Unless otherwise specified herein, all of the capitalized terms used herein are defined in Section 5 hereof.

WHEREAS , the Company entered into a Board Nomination and Observer Agreement, dated as of September 24, 2012 (the “ Board Nomination and Observer Agreement ”), with the Stockholder; and

WHEREAS , the Company entered into an amendment to the Board Nomination and Observer Agreement, dated as of March 22, 2013 with the Stockholder (“ Amendment No. 1 ”), in order to amend the definition of the term “Expiration Time” as set forth in the Board Nomination and Observer Agreement; and

WHEREAS, the Company and the Stockholder have agreed to further modify the terms of the Board Nomination and Observer Agreement, as set forth herein;

NOW, THEREFORE , in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

SECTION 1. Definitions . As used herein, terms that are defined herein shall have the meanings as so defined, and terms not so defined shall have the meanings as set forth in the Board Nomination and Observer Agreement, as applicable.

SECTION 2. Amendment . The definition of the term “ Expiration Time ” as set forth in Section 5 of the Board Nomination and Observer Agreement, as previously amended in Amendment No. 1, is hereby amended and restated in its entirety so that as amended and restated it reads as follows:

“ Expiration Time ” means the earlier of (i) termination of this Board Nomination and Observer Agreement at the election of the Stockholder by written notice to the Company and (ii) at 5:00 p.m. (New York time) on the date that is the 360 ^th day following the Effective Date of the Board Nomination and Observer Agreement.

SECTION 3. Effect of Amendment . This Amendment is effective as of the Amendment Date and as of such date, (i) the applicable portions of this Amendment shall be a part of the original Board Nomination and Observer Agreement, as amended hereby, and (ii) each reference in any other document entered into in connection with the Board Nomination and Observer Agreement to “the Board Nomination and Observer Agreement”, “hereof”, “hereunder”, or words of like import, shall mean and be a reference to the Board Nomination and Observer Agreement, as previously amended, and as amended hereby. Except as expressly amended hereby, the Board Nomination and Observer Agreement shall remain unmodified and in full force and effect and is hereby ratified and confirmed by the parties hereto.

SECTION 4. Consent . Each of the parties hereby consents to the amendments to the Board Nomination and Observer Agreement contained in this Amendment.

- 1 -

SECTION 5. Governing Law; Miscellaneous .

(a) This Amendment shall be governed by and construed in accordance with the laws of the state of Delaware without reference to principles of conflicts of law.

(b) Headings used herein are for convenience of reference only and shall not affect the meaning of this Amendment. This Amendment may be executed in any number of counterparts, and by the parties hereto on separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same agreement. Executed counterparts may be delivered via facsimile or other means of electronic transmission.

(c) This Amendment contains the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior arrangements and understandings between the parties, both written and oral, with respect to its subject matter. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Amendment shall be effective against the Company or the Stockholder unless such modification is approved in writing, in the case of an amendment, by the Company and the Stockholder, and in the case of a waiver, by each party against whom the waiver is to be effective. The failure of any party to enforce any of the provisions of this Amendment shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Amendment in accordance with its terms.

[SIGNATURE PAGE FOLLOWS]

- 2 -

IN WITNESS WHEREOF , the parties hereto have executed this Amendment on the day and year first above written.


Company:

AUTHENTIDATE HOLDING CORP.

By:		/s/ O’Connell Benjamin
Name:		O’Connell Benjamin
Title:		Chief Executive Officer and President


Stockholder:

LAZARUS INVESTMENT PARTNERS, LLLP

By:		/s/ Justin Borus
Name:		Justin Borus
Title:		Manager

Signature Page to Amendment to Board Nomination and Observer Agreement

- 3 -

Exhibit 99.1

AUTHENTIDATE HOLDING CORP.

PRICES $4.045 MILLION PUBLIC OFFERING

AND

REACHES DEFINITIVE AGREEMENTS FOR THE CANCELLATION OF

$6.5 MILLION OF SENIOR NOTES

Berkeley Heights, NJ – June 12, 2013 – Authentidate Holding Corp. (NASDAQ:ADAT), a provider of secure web-based software applications and telehealth products and services for healthcare organizations, announced today that it has priced an underwritten public offering of 4,257,895 units at a price to the public of $0.95 per unit, resulting in gross proceeds of approximately $4.045 million. Each unit consists of one share of common stock and one warrant to purchase one share of common stock at an exercise price of $0.95 per share. Net proceeds, after underwriting discount and other estimated fees and expenses payable by the company, are expected to be approximately $3.6 million.

The offering is expected to close on or about June 17, 2013, subject to satisfaction of customary closing conditions. Authentidate has granted the underwriters a forty-five (45) day option to purchase up to 425,790 additional shares and additional warrants to purchase up to 425,790 shares to cover over-allotments, if any. J.P. Turner & Company, LLC is acting as the sole underwriter for the proposed offering.

The securities described above are being offered by Authentidate pursuant to a shelf registration statement that was previously filed with and declared effective by the Securities and Exchange Commission (SEC). A preliminary prospectus supplement related to the offering was filed with the SEC on June 4, 2013. A final prospectus supplement relating to the offering will be filed with the SEC. Electronic copies of the prospectus supplement and accompanying prospectus can be obtained through the website of the SEC at www.sec.gov. When available, copies of the final prospectus supplement and the accompanying prospectus relating to this offering may be obtained from J.P. Turner & Company, LLC, Attention: Jeffrey Johnson, by telephone at (404) 479-8300, or by email at jjohnson@jpturner.com.

Authentidate also announced today that it has entered into definitive agreements with a number of holders of its outstanding senior notes and other investors to issue an aggregate of $6,650,000 of new shares of convertible preferred stock and warrants to purchase an aggregate of 6,650,000 shares of common stock in consideration of the cancellation of $6,500,000 of senior notes and $150,000 in additional cash proceeds. The shares of preferred stock, to be designated as Series D Preferred Stock, will be initially convertible into an aggregate of 6,125,024 shares of common stock at the initial conversion rate of $1.08571 per share, subject to adjustment solely in the event of stock dividends, combinations, splits, recapitalizations, and similar events. The warrants are exercisable at $0.95 per share for a period of 54 months commencing on the six month anniversary of the closing date. After the closing, an aggregate principal amount of $850,000 of senior notes will remain outstanding, which will be due and payable on October 31, 2013.

The shares of Series D Preferred Stock and related warrants were offered and sold in a private placement under the Securities Act of 1933, as amended (the “Securities Act”) and the regulations promulgated thereunder. Such securities were offered and sold only to accredited investors and have not been registered under the Securities Act or applicable state securities laws. Accordingly, such securities may not be offered or sold in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements of the Securities Act and such applicable state securities laws.

The investors that surrendered senior notes in this transaction included Authentidate’s largest stockholder, Lazarus Investment Partners LLLP as well as affiliates of Mr. J. David Luce, an Authentidate board member, Mr. O’Connell Benjamin, the company’s Chief Executive Officer and a board member, and Mr. William Marshall, Chief Financial Officer of Authentidate. Further, one of our directors, Dr. Todd Borus, agreed to purchase an aggregate of $25,000 of shares of Series D Preferred Stock and 25,000 warrants.

This press release does not constitute an offer to sell or a solicitation of an offer to buy the securities in either the public or private offering, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.

About Authentidate Holding Corp.

Authentidate Holding Corp. is a provider of secure web-based software applications and telehealth products and services that enable healthcare organizations to coordinate care for patients and enhance related administrative and clinical workflows. Authentidate’s products and services enable healthcare organizations to increase revenues, reduce costs and enhance patient care by eliminating paper and manual work steps from clinical and administrative processes. Authentidate’s telehealth solutions combine patient vital signs monitoring with a web application that streamlines patient care management. Delivered as Software as a Service (SaaS), customers only require an Internet connection and web browser to access our web-based applications thereby utilizing previous investments in systems and technology. The company’s healthcare customers and users include leading homecare companies, health systems, physician groups and governmental entities. These organizations utilize the company’s products and services to coordinate care for patients outside of acute-care.

For more information, visit the company’s website at www.authentidate.com

This press release contains forward-looking statements within the meaning of section 27A of the Securities Act of 1933 and section 21E of the Securities Act of 1934. When used in this release, the words “believe,” “anticipate,” “think,” “intend,” “plan,” “will be,” “expect,” and similar expressions identify such forward-looking statements. Such statements regarding future events and/or the future financial performance of the company are subject to certain risks and uncertainties, which could cause actual events or the actual future results of the company to differ materially from any forward-looking statement. Such risks and uncertainties include, among other things, the availability of any needed financing, the company’s ability to implement its business plan for various applications of its technologies, the impact of competition, the management of growth, and the other risks and uncertainties that may be detailed from time to time in the company’s reports filed with the Securities and Exchange Commission. In light of the significant risks and uncertainties inherent in the forward-looking statements included herein, the inclusion of such statements should not be regarded as a representation by the company or any other person that the objectives and plans of the company will be achieved.

Authentidate and Inscrybe are registered trademarks of Authentidate Holding Corp. All other trade names are the property of their respective owners.