EXHIBIT 10.1

CONSENT AND FIRST AMENDMENT TO

LOAN AND SECURITY AGREEMENT

THIS CONSENT AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (the “ Amendment ”) is made and dated as of September 8, 2015, and is entered into by and among Hercules Technology Growth Capital, Inc., a Maryland corporation (“ HTGC ”), in its capacity as administrative and collateral agent for Lenders (together with its successors and assigns in such capacity, “ Agent ”), the financial institutions signatory hereto as lenders (together with HTGC, collectively the “ Lenders ”, and each individually, a “ Lender ”), Amedica Corporation, a Delaware corporation (“ Borrower ”), and the guarantors signatory hereto (each a “ Guarantor ” and collectively, the “ Guarantors ”, and together with Borrower, each a “ Loan Party ” and collectively, “ Loan Parties ”).

RECITALS

A. Borrower, Agent and Lenders previously entered into that certain Loan and Security Agreement dated as of June 30, 2014 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the “ Agreement ”);

B. Borrower is indebted to MG Partners II, Ltd. (the “ MG Partners ”) under two promissory notes (the “ MG Partners Notes ”) in an aggregate outstanding principal amount of $4,297,649.54, plus accrued and unpaid interest thereon in the amount of $321,769.54 as of the date hereof, and Borrower intends to make one or more prepayments on the MG Partners Notes in an aggregate amount not to exceed $5,000,000 to pay the MG Partners Notes in full and have MG Partners waive certain of its rights in strict accordance with the term of that certain Settlement And Waiver Agreement attached hereto as Exhibit A (the “ MG Settlement Agreement ”).

C. Borrower and Guarantors have requested that Agent and Lenders agree to certain amendments to the Loan Agreement and grant certain consents and Agent and Lenders are willing to amend the Agreement as provided herein.

AGREEMENT

NOW, THEREFORE, Borrower, Guarantors, Agent and Lenders agree as follows:

1. Unless otherwise defined herein, all capitalized terms shall have the meaning provided in the Agreement. The recitals set forth above are hereby incorporated by reference.

2. As of the Effective Date, Section 2.5 of the Agreement is amended and restated in its entirety as follows:

(a) Voluntary Prepayments and Commitment Terminations . At its option upon at least five (5) Business Days prior notice to Agent, Borrower may prepay all, but not less than all, of the outstanding Term Loan by paying the entire principal balance, all accrued and unpaid interest thereon, together with a prepayment charge equal to the following percentage of the amount being prepaid: if such amount is prepaid on or before September 8, 2016, 1.5%; after September 8, 2016, 0.75% (each, a “ Prepayment Charge ”). Borrower agrees that the Prepayment Charge is a reasonable calculation of Lender’s lost profits in view of the difficulties and impracticality of determining actual damages resulting from an early repayment of the Term Loan.

(b) Term Loan Prepayment Amounts . Upon the date of (i) any voluntary prepayment of the Term Loan in accordance with Section 2.5(a) or (ii) any mandatory prepayment of the Term Loan required under this Agreement (whether by acceleration of the Obligations pursuant to Section 8.2 or otherwise), Borrower shall pay to

Agent, for the benefit of Lenders in accordance with their Pro Rata Shares, a sum equal to all outstanding principal and all accrued interest thereon and other Obligations with respect to the Term Loan. In addition, Borrower shall pay the Prepayment Charge as provided in Section 2.5(a) .

3. As of the Effective Date, Section 2.6(b) of the Agreement is amended and restated in its entirety as follows:

(a) End of Term Fee .

4. As of the Effective Date, Section 7.10 of the Agreement is amended and restated in its entirety as follows:

7.10      Unrestricted Cash . The Loan Parties shall not allow at any time Unrestricted Cash to be less than the minimum Unrestricted Cash amount corresponding to the applicable outstanding amount of the Term Loan on such date:

Notwithstanding the requirements set forth in the table above, once the outstanding balance of the Term Loan is less than $2,500,000, the Loan Parties shall not allow at any time Unrestricted Cash to be less than the then outstanding balance of the Term Loan.

5. As of the Effective Date, the following defined terms in Section 11 of the Agreement are hereby inserted or amended, as applicable, in proper alphabetical order as follows:

“ Adjustment Period ” means that period of time beginning on the occurrence of the Stockholder Trigger and ending on the date that Borrower receives gross proceeds in the amount of at least $15,000,000 from the sale after September 8, 2015, of its Stock or Stock Equivalents.

“ Second Funding ” shall mean the automatic exercise of Series B Warrants in accordance with their terms resulting in gross proceeds to the Company of at least $5,000,000.

“ Second Funding Deadline ” shall mean the Termination Date as such term is defined in the Series B Warrants.

“ Series B Warrants ” shall have the meaning provided in the Stock Purchase Agreement (the form of which is attached as Exhibit C to the Stock Purchase Agreement).

“ Series C Warrants ” shall have the meaning provided in the Stock Purchase Agreement (the form of which is attached as Exhibit C to the Stock Purchase Agreement).

“ Shareholder Approval ” shall have the meaning provided in the Stock Purchase Agreement.

“ Stock Purchase Agreement ” means that certain securities purchase agreement in substantially the form and substance as attached as Exhibit I hereto between the Borrower and various investors thereto for the sale and purchase of Borrower’s stock and warrants for aggregate proceeds to the Company of not less than $15,000,000, pursuant to which Borrower may proceed with an initial sale of securities in the amount of $5,000,000 without obtaining Shareholder Approval, and for which the exercise of the Series B Warrants and Series C Warrants will require Shareholder Approval. Any changes to the form of Stock Purchase Agreement, Series B Warrants or Series C Warrants attached hereto that affect or relate in any way to defined terms in this Agreement which are incorporated herein by reference to the Stock Purchase Agreement must be approved in writing by Agent in order for such changes to alter the meaning of such terms.

“ Stockholder Meeting ” means a special meeting of Borrower’s stockholders at which Borrower requests Shareholder Approval.

“ Stockholder Trigger ” means the occurrence of any of the following events: (a) Borrower has not held the Stockholder Meeting by November 13, 2015 or fails to receive Shareholder Approval at the Stockholder Meeting, (b) the Second Funding does not occur by the Second Funding Deadline, or (c) the Third Funding does not occur by the Third Funding Deadline.

“ Term Loan Interest Rate ” means for any day a per annum rate of interest equal to the greater of either (i) the Prime Rate plus 7.7%, and (ii) 10.95%, provided however, that during the Adjustment Period, the “Term Loan Interest Rate” shall mean for any day a per annum rate of interest equal to the greater of either (i) the Prime Rate plus 9.2%, and (ii) 12.45%.

“ Third Funding ” shall mean the automatic exercise of Series C Warrants in accordance with their terms resulting in gross proceeds to the Company of at least $5,000,000.

“ Third Funding Deadline ” shall mean the Termination Date as such term is defined in the Series C Warrants.

6. As of the Effective Date, Exhibit I attached hereto is added to the Agreement immediately following Exhibit H of the Agreement.

7. As of the Effective Date, Schedule 7.2 to the Agreement is amended to include MG Partners Notes as Permitted Indebtedness in an amount not to exceed $5,000,000, but only as modified and subject to the payment restrictions contained in the MG Settlement Agreement. On the Effective Date, the Lenders hereby waive and release the Event of Default noticed in that certain Notice of Default from HTGC to Borrower dated June 30, 2015. Accordingly, for the avoidance of doubt, the Lenders hereby consent to the MG Settlement Agreement and Borrower’s payments to MG Partners in strict accordance with the terms thereof, provided however, in no event may more than $5,000,000 be paid to or for the benefit of MG Partners, provided further, that no payment may be made without Agent’s prior written consent if Borrower is in breach of Section 7.10 of the Agreement or such payment would result in the breach of Section 7.10 of the Agreement or result in any Event of Default before or after giving effect to such payment. The consent set forth in this Section 7 is limited to the express terms thereof, and nothing herein shall be deemed a consent or waiver by Agent or Lenders with respect to any other term, condition, representation, or covenant applicable to the Borrower under the Loan Documents.

8. This Amendment shall not be deemed to constitute an amendment to the Agreement except as expressly provided in Section 2 through Section 7 above, and all other terms and conditions of the Agreement shall remain in full force and effect.

9. MG Partners’ termination of the MG Settlement Agreement shall be deemed to be an Event of Default under the Agreement.

10. Borrower hereby represents, warrants and covenants to Agent and Lenders as follows:

(a) Borrower has all requisite power and authority to execute this Amendment and any other agreements or instruments required hereunder and to perform all of its obligations hereunder, and this Amendment and all such other agreements and instruments have been duly executed and delivered by Borrower and constitute the legal, valid and binding obligation of Borrower, enforceable in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.

(b) Other than the Subsidiary signing this Amendment, Borrower has no other Subsidiaries.

(c) The execution, delivery and performance by Borrower of this Amendment and any other agreements or instruments required hereunder have been duly authorized by all necessary corporate action and do not (i) require any authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or regulation or of any order, writ, injunction or decree presently in effect, having applicability to Borrower, or the certificate of incorporation or by-laws of Borrower, or (iii) result in a breach of or constitute a default under any indenture or loan or the Agreement or any other agreement, lease or instrument to which Borrower is a party or by which it or its properties may be bound or affected.

(d) No Event of Default exists under the Agreement, and all of Borrower’s representations and warranties contained in the Agreement are correct on and as of the date hereof as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date.

(e) Once signed and delivered, Borrower shall not agree to any amendment to or waiver of rights under the MG Settlement without Agent’s prior written consent.

(f) Other than the Indebtedness to MG Partners under the MG Partners Notes, Borrower has no other Indebtedness outstanding to MG Partners.

11. The execution of this Amendment and all other agreements and instruments related hereto shall not be deemed to be a waiver of any Event of Default under the Agreement, if any, or a waiver of any breach or default

under any of the other Loan Documents, whether or not known to Agent or Lenders and whether or not existing on the date of this Amendment.

12. Borrower hereby reaffirms its agreement under the Agreement, to pay or reimburse Agent and Lenders for all costs and expenses incurred by Agent and Lenders in connection with the Loan Documents, including without limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality of the foregoing, Borrower specifically agrees to pay all reasonable fees and disbursements of counsel to Agent and Lenders for the services performed by such counsel in connection with the preparation of this Amendment and the documents and instruments incidental hereto. Agent and Lenders are authorized to initiate payment of all such fees pursuant to the existing ACH Authorization delivered in connection with the Agreement. Borrower hereby agrees that Lenders may, at any time or from time to time in its sole discretion and without further authorization by Borrower, apply the proceeds of any loan, for the purpose of paying any such fees, disbursements, costs and expenses.

13. Borrower and Guarantor, for itself and on behalf of its respective heirs, legal representatives, marital communities, and successors and assigns, as applicable, hereby release Agent, Lenders and all of their Affiliates, shareholders, partners, predecessors, employees, officers, directors, attorneys, parent corporations, subsidiaries, agents, participants, assignees, servicers and receivers (collectively, the “ Released Parties ”), except for claims, disputes, differences, liabilities and obligations arising under this Amendment, the Agreement and the other Loan Documents after the date hereof, from any and all known and unknown claims, disputes, differences, liabilities and obligations of any and every nature whatsoever that Borrower, Guarantor or any of them may have or claim, as of the date hereof or as of any prior date, against any one or more of the Released Parties arising from, based upon or related to the Loan Documents, or any other agreement, understanding, action or inaction whatsoever with regard to the Loan Documents or any transaction or matter related thereto, including, without limitation, the origination and servicing the Term Loan and the enforcement or attempted enforcement of any rights or remedies for default or asserted default under the Loan Documents (collectively, the “ Released Claims ”).

14. Borrower and Guarantor further acknowledge and agree that the Released Claims include, among other things, all claims arising out of or with respect to any and all transactions relating to the Loan Documents based on any fact, act, inaction, or other occurrence or nonoccurrence on or prior to the date hereof, including, without limitation, any breach of fiduciary duty or duty of fair dealing, breach of confidence, breach of loan commitment, undue influence, duress, economic coercion, conflict of interest, negligence, bad faith, malpractice, violation of the Racketeer Influenced and Corrupt Organizations Act, violation of any other statute, ordinance or regulation, intentional or negligent infliction of mental or emotional distress, tortious interference with contractual relations or prospective business advantage, tortious interference with corporate governance, breach of contract, bad practices, unfair competition, libel, slander, conspiracy or any claim for wrongfully accelerating the Term Loan or attempting to foreclose on, or obtain a receiver for, any collateral for the Term Loan and all statutory claims and causes of action of every nature.

15. In connection with the release contained in Sections 13 through 19 (the “ Release ”), each of Borrower and Guarantor acknowledge that it is aware that it may hereafter discover facts in addition to or different from those that it now knows or believes to be true with respect to the Released Claims, but that it is Borrower’s and Guarantor’s intention hereby fully, finally and forever to settle and release all claims, disputes, differences, liabilities and obligations, known or unknown, suspected or unsuspected, that now exist, may exist or heretofore have existed by Borrower or Guarantor against any one or more of the Released Parties. In furtherance of that intention, the Release contained in this Amendment shall be and remain in effect as a full and complete release notwithstanding the discovery of the existence of any such additional or different facts.

16. The Release contained in this Amendment shall be effective and irrevocable upon the execution of this Amendment by Agent, Lender, Borrower and Guarantor and shall be deemed affirmed and restated upon, and effective as of, the Effective Date without any further documentation.

17. BORROWER AND GUARANTOR AGREE AND ACKNOWLEDGE THAT THE RELEASED CLAIMS ARE NOT LIMITED TO MATTERS THAT ARE KNOWN OR DISCLOSED TO BORROWER OR

GUARANTOR AND THAT THE RELEASED CLAIMS INCLUDE ALL CLAIMS, DISPUTES, DIFFERENCES, LIABILITIES AND OBLIGATIONS THAT BORROWER OR GUARANTOR DOES NOT KNOW OR SUSPECT TO EXIST AS OF THE DATE HEREOF. EACH OF BORROWER AND GUARANTOR UNDERSTAND THAT IT IS GIVING UP ALL RIGHTS AND CLAIMS AGAINST AGENT AND LENDERS AND THE OTHER RELEASED PARTIES, KNOWN OR UNKNOWN, THAT ARE IN ANY WAY RELATED TO THE COLLATERAL OR THE LOAN.

18. THE PARTIES SPECIFICALLY ALLOCATE THE RISK OF ANY MISTAKE IN ENTERING INTO THE RELEASE TO THE PARTY OR PARTIES CLAIMING TO HAVE BEEN MISTAKEN.

19. Each of Borrower and Guarantor acknowledge having read and understood and hereby waives the benefits of Section 1542 of the California Civil Code, which provides as follows (and hereby waives the benefits of any similar law of the state that may be applicable):

“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

20. This Amendment shall become effective upon the satisfaction of all the following conditions precedent (the “ Effective Date ”):

21. By signing this Amendment, Guarantor hereby consents to the Amendment and agrees to be bound by the terms and conditions of the Amendment the same as if it were the Borrower, mutatis mutandis. To the extent that Agent or Lenders have any duties, responsibilities or obligations to Guarantor arising under or related to the Amendment or the other agreements executed and delivered in connection therewith, those duties, responsibilities or obligations shall be deemed satisfied with respect to Guarantor if such duties, responsibilities or obligations are provided to Borrower. Guarantor acknowledges that it benefits, both directly and indirectly, from the Amendment, and hereby waives, for itself and on behalf of any and all successors in interest (including without limitation any assignee for the benefit of creditors, receiver, bankruptcy trustee or itself as debtor-in-possession under any bankruptcy proceeding) to the fullest extent provided by law, any and all claims, rights or defenses to the enforcement of the Amendment on the basis that (i) it failed to receive adequate consideration for the execution and delivery of the Amendment or (ii) its obligations under the Amendment are avoidable as a fraudulent conveyance

22. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered, whether by electronic transmission (e.g., email, .pdf format) or otherwise, shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. The provisions of Section 11 of the Agreement shall be deemed incorporated herein by reference, mutatis mutandis .

23. Borrower agrees to pay as promptly as reasonably practicable all reasonable, documented Lender expenses (including all reasonable attorneys' fees and reasonable expenses) incurred through the date of this Amendment in an aggregate amount not to exceed $15,000.

(signatures provided on the next page)

IN WITNESS WHEREOF, Borrower, Guarantor, Agent and Lenders have duly executed and delivered this Consent and First Amendment to Loan and Security Agreement as of the date and year first above written.

BORROWER:

Amedica Corporation

Signature:_ /s/ B. Sonny Bal __________

Name:      B. Sonny Bal

Title: Chief Executive Officer and President

GUARANTOR:

US Spine, Inc.

Signature:_ /s/ B. Sonny Bal __________

Name:      B. Sonny Bal

Title: Chief Executive Officer and President

Accepted in Palo Alto, California:

AGENT AND LENDER:

HERCULES TECHNOLOGY GROWTH CAPITAL, INC.

Signature:_ /s/ Ben Bang ___________

Name:      Ben Bang

Title:      Associate General Counsel

LENDER:

HERCULES TECHNOLOGY III, L.P.,

a Delaware limited partnership

        

Signature:_ /s/ Ben Bang ___________

Name:      Ben Bang

Title:      Associate General Counsel

EXHIBIT A

MG SETTLEMENT AGREEMENT (with exhibits)

EXHIBIT I

STOCK PURCHASE AGREEMENT (with exhibits)

EXHIBIT10.2

FIRST AMENDMENT TO

WARRANT TO PURCHASE SHARES OF COMMON STOCK OF

AMEDICA CORPORATION

This First Amendment to Warrant to Purchase Shares of Common Stock (this “ Amendment ”) dated as of September 8, 2015, is made by and between Amedica Corporation, a Delaware corporation (the “ Company ”), and Hercules Technology III, L.P., a Delaware limited partnership (the “ Warrant Holder ”), and it hereby amends that certain Warrant to Purchase Shares of Common Stock of the Company (the “ Existing Warrant ”) originally issued to Hercules on June 30, 2014 in connection with the Company’s entrance into that certain Loan and Security Agreement (the “ Loan and Security Agreement ”), by and between the Company, Hercules Technology Growth Capital, Inc., as administrative collateral agent for the lenders thereunder and as a lender, the financial institutions who are parties to the Loan and Security Agreement, and Hercules, as a lender.

WHEREAS, the requisite parties to the Loan and Security Agreement voted, consented and agreed to amend the Loan and Security Agreement.

WHEREAS, in connection with the amendment to the Loan and Security Agreement, the Company and the Warrant Holder desire to amend the Existing Warrant to (a) increase the number of shares of common stock of the Company, $0.01 par value per share (the “ Common Stock ”), that the Warrant Holder is entitled to purchase pursuant to the Existing Warrant (b) reduce the Warrant Price (as defined therein) from $4.65 per share of Common Stock to $0.47 per share of Common Stock (as more fully described in Section 2), (c) modify the exercisability of the Existing Warrant and (d) modify the cashless exercise provisions of the Existing Warrant.

NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises contained herein, and the benefits to be derived by each party hereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Warrant Holder, intending to be legally bound, hereby agree to amend the Existing Warrant, as set forth below and hereby agree as follows:

AGREEMENT:

1. Definitions . Unless otherwise defined herein, all capitalized terms shall have the meaning provided in the Existing Warrant. The recitals set forth above are hereby incorporated by reference.

2. Warrant Number . The first sentence of the first paragraph of the Existing Warrant beginning “THIS CERTIFIES THAT” is deleted and replaced in its entirety with the following:

THIS CERTIFIES THAT , for value received, Hercules Technology III, L.P., a Delaware limited partnership (“Holder”), is entitled to subscribe for and purchase One Million Five Hundred Forty-Eight Thousand Three Hundred Eighty-Seven (1,548,387) fully paid and nonassessable shares of Common Stock of Amedica Corporation, a Delaware corporation (“Company”) subject to the provisions and upon the terms and conditions hereinafter set forth.

3. Warrant Price . Section 1 of the Existing Warrant is deleted and replaced in its entirety with the following:

4. Conditions to Exercise . Section 2 of the Existing Warrant is deleted and replaced in its entirety with the following:

5. Cashless Exercise. Section 3(a) and (b) of the Existing Warrant are deleted and replaced in their entirety with the following:

(a)     Cash Exercise . Subject to Section 3(b) hereof, the purchase right represented by this Warrant may be exercised by Holder hereof, in whole or in part, by the surrender of the original of this Warrant (together with a duly executed Notice of Exercise in substantially the form attached hereto) at the principal office of Company (as set forth in Section 18 below) and by payment to Company, by certified or bank check, or wire transfer of immediately available funds, of an amount equal to the then applicable Warrant Price per

share multiplied by the number of Warrant Shares then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be in the name of, and delivered to, Holder hereof, or as such Holder may direct (subject to the terms of transfer contained herein and upon payment by such Holder hereof of any applicable transfer taxes). Such delivery shall be made within 3 business days after exercise of this Warrant and at Company’s expense and, unless this Warrant has been fully exercised or expired, a new Warrant having terms and conditions substantially identical to this Warrant and representing the portion of the Warrant Shares, if any, with respect to which this Warrant shall not have been exercised, shall also be issued to Holder hereof within 3 business days after exercise of this Warrant. If the Warrant Shares can be issued electronically using the Fast Automated Securities Transfer Program of the Depository Trust Company (or similar program), upon Holder’s request at the time of exercise the Company shall issue the Warrant Shares electronically in accordance with Holder’s written instructions.

(b)      Conversion . If at any time either (i) the Warrant Shares are not listed on the NYSE MKT, The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing) or trading in the Warrant Shares has been suspended, or (ii) there is no effective registration statement registering, or no current prospectus available for, the resale of the Warrant Shares by Holder such that such Warrant Shares may be immediately sold upon exercise, then, in lieu of exercising this Warrant as specified in Section 3(a), Holder may from time to time convert this Warrant, in whole or in part, into Warrant Shares by surrender of the original of this Warrant (together with a duly executed Notice of Exercise in substantially the form attached hereto) at the principal office of Company, in which event Company shall issue to Holder the number of Warrant Shares computed using the following formula:

X = Y (A-B)

A

Where:

X = the number of Warrant Shares to be issued to Holder.

Y = the number of Warrant Shares requested to be purchased under this Warrant (at the date of such calculation).

A = the Fair Market Value of one share of Company’s Common Stock (at the date of such calculation).

B = Warrant Price (as adjusted to the date of such calculation).

6. No Further Amendments . Except as expressly amended hereby, the Existing Warrant is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect.

7. Effect of Amendment . This Amendment shall form a part of the Existing Warrant for all purposes, and each party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, any reference to the Existing Warrant shall be deemed a reference to the Existing Warrant as amended hereby.

8. Headings . The descriptive headings contained in this Amendment are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Amendment.

9. Counterparts; Facsimiles . This Amendment may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. A facsimile or other electronically transmitted signature on this Amendment is as valid as an original signature.

10. Governing Law; Jurisdiction; JURY TRIAL WAIVER . The provisions of Sections 19 through 22 of the Existing Warrant shall be deemed incorporated herein by reference, mutatis mutandis .

[remainder of page intentionally left blank]

IN WITNESS WHEREOF, the Company and Warrant Holder have caused this Amendment to Warrant to Purchase Shares of Common Stock of Amedica Corporation to be executed and delivered as of the date first written above by their respective officers thereunto duly authorized.

 

Amedica Corporation

Signature:_ /s/ B. Sonny Bal __________

Name: B. Sonny Bal

Title: Chief Executive Officer and President

EXHIBIT 10.3

SETTLEMENT AND WAIVER AGREEMENT

This Settlement and Waiver Agreement (the “ Agreement ”) is entered into as of the 8th day of September, 2015, by and among Amedica Corporation, a Delaware corporation with offices located at 1885 West 2100 South, Salt Lake City, UT 84119 (the “ Company ”), and MG Partners II, Ltd. (the “ Holder ”), with reference to the following facts:

A. In accordance with that certain Securities Purchase Agreement, dated June 30, 2014, by and between the Company and the Investor (the “ Securities Purchase Agreement ”) and that certain Amendment and Exchange Agreement, dated as of April 2, 2015, by and between the Company and the Investor (the “ Exchange Agreement ”), the Company has previously issued to the Holder (i) that certain Senior Convertible Note, with an aggregate principal amount of $797,649.54, issued by the Company to the Holder on April 2, 2015 in exchange for that certain Senior Convertible Note, initially issued on June 30, 2014, with an aggregate original principal amount of $2,900,000 (the “ Initial Note ”) and an outstanding aggregate principal amount as of April 2, 2015 of $797,649.54 (the “ Exchanged June Note ”) and (ii) that certain Senior Convertible Note, with an aggregate principal amount of $3,500,000 issued by the Company to the Investor on April 2, 2015 in exchange for that certain Senior Convertible Note, initially issued on August 11, 2014, with an aggregate original principal amount of $3,500,000 (the “ Additional Note ”, and together with the Initial Note, the “ Original Notes ”) and an outstanding aggregate principal amount as of April 2, 2015 of $3,500,000 (the “ Exchanged August Note ”, and together with the Exchanged June Note, the “ Exchanged Notes ”).

B. On June 18, 2015, the Holder delivered an Event of Default Redemption Notice (as defined in the Exchanged Notes) to the Company, requiring the redemption of the Exchanged Notes in full as a result of the alleged occurrence of certain events of default related to claimed breaches of representations and warranties of the Company in the Securities Purchase Agreement and the Exchange Agreement (the “ Note Claim ”).

C. On June 25, 2015, the Company filed a Current Report on Form 8-K disputing the Note Claim and the Holder’s right to deliver such Event of Default Redemption Notice to the Company in accordance with the terms of the Exchanged Notes (the “ Dispute ”).

D. The Company currently desires to raise up to $15 million in an offering of equity or equity-linked securities of the Company (the “ Proposed Financing ”), with $5 million to be raised at an initial closing (the “ Proposed Financing Closing ”) and, subject to the Company obtaining stockholder approval as required by the rules and regulations of The Nasdaq Stock Market (the “ Stockholder Approval ”, and such meeting of the stockholders of the Company to obtain the Stockholder Approval, the “ Stockholder Meeting ”), an additional $5 million to be raised in connection with the exercise of warrants issued in the Proposed Financing Closing (the “ Proposed Financing Second Funding ”) and an additional $5 million to be raised in connection with the exercise of additional warrants issued in the Proposed Financing Closing (the “ Proposed Financing Third Funding ”).

E. In connection with the consummation of the Proposed Financing Initial Closing, the parties hereto desire to resolve the Dispute and obtain certain waivers to permit the Proposed Financing and Alternate Offerings (as defined below) in accordance herewith.

F. Capitalized terms used but not otherwise defined herein shall have the meanings as set forth in the Securities Purchase Agreement (as amended hereby).

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:

1. Amount Owed Under the Exchanged Notes . As of the date hereof, (a) the total amount owed under the Exchanged June Note is $894,252.41, of which $797,649.54 represents principal and $96,602.87 represents accrued and unpaid interest, and (b) the total amount owed under the Exchanged August Note is $3,725,166.67, of which $3,500,000 represents principal and $225,166.67 represents accrued and unpaid interest.

2. Redemption of Exchanged Notes . Notwithstanding anything in the Exchanged Notes to the contrary, and subject to the terms and conditions of this Agreement, the Company and the Holder hereby agree to effect the redemption, in full, of the Exchanged Notes for an aggregate amount of $5,000,000 (the “ Redemption Amount ”) to be paid as follows:

(a) Initial Funding . No later than the first (1 ^st ) Business Day after the date of the consummation of the Proposed Financing Closing (the “ Initial Funding ”, and such date, the “ Initial Funding Date ”), the Company shall purchase, and the Holder shall sell, $797,649.54 in aggregate principal amount of the Exchanged June Note, in full satisfaction of all obligations thereunder, and $1,351,175.23 in aggregate principal amount of the Exchanged August Note (in each case, together with any accrued and unpaid interest with respect thereto) to the Company for a cash payment of $2,500,000 (the “ Initial Purchase Price ”), to be paid by wire transfer to the Holder on or before the first Business Day following the Initial Funding Date, in U.S. dollars and immediately available funds in accordance with the wire instructions of the Holder delivered to the Company at least two Business Days prior to the Initial Funding Date.

(b) Second Funding . No later than the first (1 ^st ) Business Day after the date of the consummation of the Proposed Financing Second Funding (the “ Second Funding ”, and such date, the “ Second Funding Date ”), the Company shall purchase, and the Holder shall sell, $1,074,412.39 in aggregate principal amount of the Exchanged August Note (together with any accrued and unpaid interest with respect thereto, including, without limitation, any Additional Interest (as defined below)) to the Company for a cash payment of $1,250,000 (the “ Second Purchase Price ”), to be paid by wire transfer to the Holder on or before the first Business Day following the Second Funding Date, in U.S. dollars and immediately available funds in accordance with the wire instructions of the Holder delivered to the Company at least two Business Days prior to the Second Funding Date.

(c) Third Funding . No later than the first (1 ^st ) Business Day after the date of the consummation of the Proposed Financing Third Funding (the “ Third Funding ”, and such date, the “ Third Funding Date ”), the Company shall purchase, and the Holder shall sell, $1,074,412.39 in aggregate principal amount of the Exchanged August Note (together with any accrued and unpaid interest with respect thereto, including, without limitation, any Additional Interest) to the Company for a cash payment of $1,250,000 (the “ Third Purchase Price ”, and together with the Second Purchase Price and the Initial Purchase Price, each a “ Purchase Price ”), to be paid by wire transfer to the Holder on or before the first Business Day following the Third Funding Date, in U.S. dollars and immediately available funds in accordance with the wire instructions of the Holder delivered to the Company at least two Business days prior to the Third Funding Date. The payment of such Third Purchas Price shall satisfy in full all obligations of the Company under the Exchanged August Note.

(d) Stockholder Approval; Additional Interest; Alternate Offerings . Notwithstanding anything herein to the contrary, if the Company has not held the Stockholder Meeting on or prior to

November 13, 2015 (the “ Stockholder Meeting Deadline ”) or fails to obtain the Stockholder Approval at the Stockholder Meeting (such date, the “ Stockholder Meeting Failure Date ”), the following shall apply:

(i) The parties acknowledge and agree that, notwithstanding anything set forth in the Exchanged Notes to the contrary, upon the earlier to occur of (x) if a Stockholder Meeting has not occurred on or prior to the Stockholder Meeting Deadline, the Stockholder Meeting Deadline and (y) the Stockholder Meeting Failure Date, any principal amount then outstanding under the Exchanged August Note shall bear interest at an increased rate of ten percent (10%) per annum (such interest, the “ Additional Interest ”), which shall be payable only upon the Company’s receipt of a request for payment of the Exchanged August Note from Magna on or after August 11, 2016, the maturity date of the Exchanged August Note (the “ Maturity Date ”). If any portion of the principal amount of the Exchanged August Note remains unpaid by the Maturity Date, then the term “Additional Interest” shall mean, from and after the Maturity Date, eighteen percent (18%) per annum, which is the default interest rate set forth in Section 2(b) of the Exchanged August Note.

(ii) Upon the consummation of any offering by the Company (or any of its Subsidiaries) of equity or equity-linked securities (excluding the Initial Funding) (an “ Alternate Offering ”) providing at least $5 million in aggregate gross proceeds to the Company when combined with the gross proceeds received from all previously completed Alternate Offerings (the “ Alternate Offering Proceeds Requirement ”), the Company shall purchase, and the Holder shall sell, a portion of the then-remaining principal amount of the Exchanged August Note (together with any accrued and unpaid interest with respect to such principal amount) for a purchase price of $1,250,000 plus 25% (the “ Purchase Price Percentage ”) of the gross proceeds from such Alternative Offerings in excess of $5,000,000 (the “ Alternate Offering Purchase Price ”) until the remaining balance of the Redemption Amount is paid in full. Each $1,000 of any Alternate Offering Purchase Price paid to the Holder pursuant to this Section 2(d) shall purchase (x) $859.53 of the principal amount of the Exchanged August Note plus (y) any accrued and unpaid interest with respect thereto up to a maximum of $140.47 with respect to such principal amount. By way of example and for illustration purposes only, if the Company completes an Alternate Offering in which it receives $5,000,000 in gross proceeds (assuming that at such time the sum of $1,074,162.50 of aggregate principal amount of the Exchanged August Note and any accrued and unpaid interest thereon to be redeemed does not exceed $1,250,000), the Alternate Offering Proceeds Requirement will be satisfied and the Company shall pay to the Holder $1,250,000 as the Alternate Offering Purchase Price and the principal amount of the Exchanged August Note shall be reduced by $1,074,162.50 and all accrued and unpaid interest with respect thereto shall be extinguished) Any Alternate Offering Purchase Price shall be paid by wire transfer to the Holder on or before the first Business Day following the date of closing of the applicable Alternate Offering triggering the payment obligation (the “ Alternate Offering Closing Date ”), in U.S. dollars and immediately available funds in accordance with the wire instructions of the Holder delivered to the Company at least two Business Days prior to the applicable Alternate Offering Closing Date. If there remains any balance of the Redemption Amount owed after the Maturity Date, the Purchase Price Percentage shall increase to 35%. Notwithstanding anything herein to the contrary, if either (x) the gross proceeds to the Company from the aggregate exercise of the Series B Warrants is less than $5 million and/or (y) the gross proceeds to the Company from the aggregate exercise of the Series B Warrants is less than $5 million, in lieu of Section 2(b) and 2(c) above, such exercises of Series B

Warrants and/or Series C Warrants, as applicable, shall constitute Alternate Offerings and the Company shall pay such portions of such gross proceeds to the Holder as required in accordance with this Section 2(d)(ii).

(e) Cancellation of Exchanged Notes; Delivery of Certificates . Immediately following the Holder’s receipt of the applicable Purchase Price or Alternate Offering Purchase Price for a redemption of all or any portion of the Exchanged Notes, such Exchanged Notes shall automatically be cancelled to the extent of such redemption and shall be of no further force and effect. As soon as commercially practicable, but in any event within five (5) Business Days following each redemption of all or any portion of the Exchanged Notes, the Holder shall deliver or cause to be delivered to the Company (or its designee) a certificate representing such Exchanged Notes redeemed by the Company, provided , that within five (5) Business Days following the Initial Funding Date, the Holder shall deliver or cause to be delivered to the Company (or its designee) the originally executed Exchanged June Note for cancellation by the Company, and within five (5) Business Days following the Third Funding Date or, if applicable, the Alternate Offering Closing Date in which the Company’s payment obligations set forth in Section 2(d)(ii) have been fully satisfied, the Holder shall deliver or cause to be delivered to the Company (or its designee) the originally executed Exchanged August Note for cancellation by the Company.

(f) Other Agreements . The Company and the Holder shall execute and deliver such other documents and agreements as are customary and reasonably necessary to effectuate the transactions contemplated hereby. At least monthly, or otherwise as more often as the Holder shall reasonably request, the Company promptly shall provide to the Holder written information, including without limitation applicable financial information, regarding the status of its compliance with Section 7.10(a) of the Hercules Credit Agreement (as defined below). If requested by the Holder in writing, the Company promptly shall use its reasonable best efforts to request from Hercules (as defined below) that it consents to the payment to the Holder of the applicable Purchase Price Percentage of the gross proceeds received by the Company in any Alternate Offering even though the Alternate Offering Proceeds Requirement has not been satisfied.

3. Waivers, Amendments and Terminations with Respect to Transaction Documents .

(a) Securities Purchase Agreement and Exchange Agreement Waivers and Terminations . Effective as of the Initial Funding Date, the Holder hereby permanently waives each of the following provisions and such provisions shall terminate and be of no further force or effect: Sections 10, 11, 12.13 and 12.14 of the Securities Purchase Agreement and Sections 7, 8 and 11 of the Exchange Agreement.

(b) Exchanged Note Waivers and Amendments . Effective as of the Initial Funding Date, the Holder hereby agrees that the default interest rate set forth in Section 2(b) of the Exchanged Notes shall be waived and shall not apply in accordance with the terms of such Section 2(b) except as set forth in Section 2(d)(i) above. For the avoidance of doubt, no accrued but unpaid interest will be payable to the Holder in any form or amount unless and until the Holder requests payment thereof upon or after the Maturity Date. Effective as of the Initial Funding Date, the Holder hereby permanently waives any right of the Holder to convert any of the Exchanged Notes into shares of Common Stock, and Sections 3 and 14 of each of the Exchanged Notes shall be of no further force or effect. Effective as of the Initial Funding Date, the Holder permanently agrees to the termination of the covenants set forth in Section 13 of the Exchanged Notes and such provision shall be of no further force or effect. Effective as of the date hereof, the Holder hereby waives any right of the

Holder to transfer any of the Exchanged Notes pursuant to Section 16 thereof until the Initial Funding Date, and, effective as of the Initial Funding Date, the Holder hereby agrees to permanently waive any right to transfer any of the Exchanged Notes and, in connection therewith, Section 16 of each of the Exchanged Notes is hereby amended and restated to read entirely as:

“16. TRANSFER . This Note may not be offered sold, assigned or transferred by the Holder without the consent of the Company.”

4. Representations and Warranties of the Company . The Company represents and warrants to the Holder, as of the date hereof, and as of the time of consummation of the Exchange, that:

(a) Organization and Qualification . The Company and each Subsidiary are duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents except, with respect to the Subsidiaries, for violations which would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect. The Company and each Subsidiary are duly qualified to conduct its respective businesses and are in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.

(b) Authorization and Binding Obligation . The Company has the requisite power and authority to enter into and perform its obligations under this Agreement and each of the other agreements and certificates entered into by the parties hereto in connection with the transactions contemplated by this Agreement (collectively, the “ Settlement Documents ”) and to acquire and cancel the Exchanged Notes for the applicable Purchase Prices in accordance with the terms hereof. The execution and delivery of the Settlement Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the acquisition and cancellation of the Exchanged Notes, have been duly authorized by the Board of Directors of the Company and, other than (i) such filings required under applicable securities or “Blue Sky” laws of the states of the United States, (ii) no further filing, consent, or authorization is required by the Company or of its Board of Directors or its shareholders. This Agreement and the other Settlement Documents have been duly executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(c) No Conflict; Required Filings and Consents .

(i) The execution, delivery and performance of the Settlement Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the acquisition and cancellation of the Exchanged Notes) will not (A) result in a violation of the Certificate of Incorporation, the terms of any share capital of the Company or any of its Subsidiaries, the Bylaws or any of the organizational

documents of the Company or any of its Subsidiaries or (B) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, subject to obtaining the Hercules Consent (as defined below), or (C) result in a violation of any law, rule, regulation, order, judgment or decree (including U.S. federal and state securities laws, rules, and regulations, and the rules and regulations of the Nasdaq Capital Market (the “ Principal Market ”) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.

(ii) Neither the Company nor any of its Subsidiaries is required to obtain any consent, authorization or order of, or, make any filing or registration with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person other than Hercules (as defined below) in order for it to execute, deliver or perform any of its obligations under or contemplated by the Settlement Documents, in each case in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations (which the Company is required to obtain pursuant to the preceding sentence) have been obtained or effected, or will have been obtained or effected, on or prior to the date hereof, and the Company and its Subsidiaries are unaware of any facts or circumstances that might prevent the Company from obtaining or effecting any of the registration, application or filings pursuant to the preceding sentence.

(iii) Subject in all cases to the conditions (I) that no payment may be made by the Company to the Holder pursuant to this Agreement if the Company is in violation of, or if such payments would violate, Section 7.10(a) of the Hercules Credit Agreement (defined below) and (II) that in no event shall the aggregate payments made by the Company to the Holder pursuant to this Agreement exceed the Redemption Amount, on or prior to Initial Funding Date the Company shall have obtained the irrevocable written consent, in form and substance reasonably satisfactory to the Holder, of the lenders (the “ Hercules Consent ”) under that certain Loan and Security Agreement by and among the Company, its subsidiary, Hercules Technology Growth Capital, Inc. and Hercules Technology III, L.P. (together, “ Hercules ”), dated as of June 30, 2014, as amended from time to time (the “ Hercules Credit Agreement ”), to (y) the transactions contemplated hereby (including, without limitation, the payment of the applicable Purchase Prices hereunder) and (z) upon the Company’s receipt of a request for payment of the Exchanged August Note from Magna at or after the Maturity Date, the payment in full by the Company of all amounts then due under the Exchanged August Note then outstanding. For the avoidance of doubt, (A) neither the Company nor any of its Subsidiaries shall agree to any amendment, waiver or other modification of the Hercules Credit Agreement that would result in a violation of this Section 4(c)(iii), and (B) no provision of this Agreement extinguishes the Company’s obligation to pay to the Holder all amounts due and payable to it under the Exchanged August Note on or after the Maturity Date (including, without limitation, accrued and unpaid interest under the Exchanged August Note, whether or not the aggregate principal amount and accrued and unpaid interest under the Exchanged August Note then exceeds $2,500,000) with the understanding that the Hercules Consent may not then apply to permit the payment, in full, of such outstanding amounts.

(d) Disclosure . Other than (i) as set forth in the Press Release (as defined below), (ii) matters relating to amending the Hercules Credit Agreement and the Hercules Consent and (iii) the Proposed Financing, the Company confirms that neither it nor any other Person acting on its behalf

has provided the Holder or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, nonpublic information. The Company understands and confirms that the Holder may rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure provided to the Holder regarding the Company and its Subsidiaries, their business and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed.

5. Representations and Warranties of the Holder . The Holder represents and warrants to the Company, as of the date hereof, as follows:

(a) Organization and Authority . The Holder has the requisite power and authority to enter into and perform its obligations under this Agreement. The execution and delivery of this Agreement by the Holder and the consummation by Holder of the transactions contemplated hereby has been duly authorized by Holder’s board of directors or other governing body. This Agreement has been duly executed and delivered by Holder and constitutes the legal, valid and binding obligation of Holder, enforceable against Holder in accordance with its terms.

(b) Ownership of Exchanged Notes . The Holder owns the Exchanged Notes free and clear of any liens (other than the obligations pursuant to this Agreement, the Transaction Documents and applicable securities laws).

(c) Validity; Enforcement . This Agreement and the Settlement Documents to which the Holder is a party have been duly and validly authorized, executed and delivered on behalf of the Holder and shall constitute the legal, valid and binding obligations of the Holder enforceable against the Holder in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(d) No Conflicts . The execution, delivery and performance by the Holder of this Agreement and the Settlement Documents to which the Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Holder is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Holder, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Holder to perform its obligations hereunder.

6. Mutual Release . Effective as of the later of (x) the Initial Funding Date and (y) the Holder’s (or its designee’s) receipt of the Initial Purchase Price, each party hereto on behalf of itself and its

affiliates (collectively, the “ Releasing Parties ”) hereby unconditionally release and forever discharge the other party hereto, including, but not limited to, all of such other party’s present and former subsidiaries, affiliate companies, shareholders, officers, directors, employees, attorneys and agents (collectively, the “ Released Parties ”), from any and all causes of action demands claims contracts, encumbrances, liabilities, obligations, expenses, losses, and rights of every nature and description, whether arising or pleaded in law or in equity, under contract, statute, tort or otherwise, whether known or unknown, whether accrued, potential, inchoate, liquidated, contingent or actual, asserted or that might have been asserted (including, without limitation, the Note Claim) (collectively, “ Claims ”) which the Releasing Parties now have, have ever had or may hereafter have, accruing or arising contemporaneously with, or before the date hereof, including all Claims based upon, arising out of, or in any way relating to, the Securities Purchase Agreement, the Exchange Agreement, the Exchanged Notes or any other Transaction Document, other than Claims arising pursuant to this Agreement or any other Settlement Document or any Claims arising after the date hereof relating to enforcing the Exchanged Notes subject to the terms of this Agreement. For the avoidance of doubt, this mutual release shall not release any Releasing Party of its obligations, if any, under this Agreement or any other Settlement Document or any Claims arising after the date hereof relating to enforcing to the Exchanged Notes subject to the terms of this Agreement. Also, for the avoidance of doubt, in connection with the release of the Note Claim as set forth herein, the default interest rate contemplated in Section 2(b) of the Exchanged Notes shall be deemed to have never applied with respect to the Exchanged Notes.

7. Disclosure of Transaction . The Company shall, on or before 8:30 a.m., New York City Time, within two (2) Business Days after the date of this Agreement, issue a press release and/or Current Report on Form 8-K (collectively, the “ Press Release ”) disclosing all material terms of the transactions contemplated hereby. From and after the issuance of the Press Release, the Holder shall not be in possession of any material, nonpublic information received from the Company or any of its respective officers, directors, employees or agents, that is not disclosed in the Press Release. The Company shall not, and shall cause its officers, directors, employees and agents, not to, provide the Holder with any material, nonpublic information regarding the Company from and after the filing of the Press Release without the express written consent of the Holder. The Company shall not disclose the name of the Holder in any filing, announcement, release or otherwise, unless such disclosure is required by law or regulation.

8. Fees . The Company shall reimburse Kelley Drye & Warren LLP (counsel to the Holder), on demand, for all reasonable, documented costs and expenses incurred by it prior to the date hereof and in connection with the Exchanged Notes generally and specifically preparing and delivering this Agreement (including, without limitation, all reasonable, documented legal fees and disbursements in connection therewith, and due diligence in connection with the transactions contemplated thereby) in an aggregate amount not to exceed $36,000.

9. Miscellaneous . Section 12 of the Securities Purchase Agreement is hereby incorporated by reference herein, mutatis mutandis (except as otherwise set forth in Section 3(a) above).

10. Termination . Notwithstanding anything contained in this Agreement to the contrary, if the Initial Funding Date has not occurred and the Company does not pay the Initial Purchase Price to the Holder in accordance with Section 2 hereof on or prior to September 15, 2015, then, at the election of the Holder delivered in writing to the Company, this Agreement shall be terminated and be null and void ab initio, no amendments or waivers hereunder shall be effective and the Exchanged Notes and shall remain outstanding as if this Agreement never existed.

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IN WITNESS WHEREOF , Holders and the Company have executed this Agreement as of the date set forth on the first page of this Agreement.

HOLDER :

MG PARTNERS II, LTD.

By:     /s/ James Keys     

Name: James Keys

Title: Director

By:     /s/ Joshua Sason     

Name: Joshua Sason

Title: Director

THE COMPANY :

AMEDICA CORPORATION

By:     /s/ B. Sonny Bal     

Name: B. Sonny Bal

Title: Chief Executive Officer and President

PLACEMENT AGENCY AGREEMENT

September 2, 2015

Ladenburg Thalmann & Co. Inc.

4400 Biscayne Blvd

14th Floor

Miami, Florida 33137

Ladies and Gentlemen:

Introduction . Subject to the terms and conditions herein (this “ Agreement ”), Amedica Corporation, a Delaware corporation (the “ Company ”), hereby agrees to sell up to an aggregate of $15,000,000 of registered and unregistered securities (the “Securities”) of the Company, including, but not limited to, shares (the “ Shares ”) of the Company’s common stock, par value $0.01 per share (the " Common Stock ”) and common stock purchase warrants (the “ Warrants ” and, together with the Shares and the Common Stock underlying the Warrants, the “ Securities ”) directly to various investors (each, an “ Investor ” and, collectively, the “ Investors ”) through Ladenburg Thalmann & Co. Inc., as placement agent (“ Ladenburg ” or the “ Placement Agent ”). The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Offering (as defined below).

The Company hereby confirms its agreement with the Placement Agent as follows:

Section 1. Agreement to Act as Placement Agent .

On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Agreement, the Placement Agent shall be the exclusive Placement Agent in connection with the offering and sale by the Company of the Shares from time to time pursuant to the Company's registration statement on Form S-3 (File No. 333-205545) (the “Registration Statement”) (such offering, the “Public Offering”), together with a concurrent private placement of the Warrants to Qualified Institutional Buyers and a limited number of institutional accredited investors, with the terms of such offering (such private placement, the “Private Placement” and, together with the Public Offering, the “Offering”) to be subject to market conditions and negotiations between the Company and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Securities and the Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “Closing Date”). As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth in the Investment Banking Agreement, dated July 1, 2015, between the Company and Ladenburg (the “Engagement Letter”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification

and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and the Engagement Letter and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “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 and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).

Section 2. Representations, Warranties and Covenants of the Company . The Company hereby represents, warrants and covenants to the Placement Agent as of the date hereof, and as of each Closing Date, as follows:

(a) Securities Law Filings . The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration Statement under the Securities Act of 1933, as amended (the “Securities Act”), which was filed on July 8, 2015, and declared effective on July 20, 2015 at 4:00 p.m. Eastern Time for the registration of certain securities of the Company, including the Shares being sold hereby and certain of the Series B Warrants, but not including the other Warrants or the shares of Common Stock underlying the other Warrants. At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. Following the determination of pricing among the Company and the prospective Investors introduced to the Company by the Placement Agent, the Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a prospectus supplement relating to the terms of the Public Offering and of the Shares and the plan of distribution thereof and will advise the Placement Agent of all further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement, at any given time, including any information contained in a Prospectus Supplement (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B under the Securities Act and including the exhibits thereto filed at such time, as amended at such time, is hereinafter called the “Registration Statement”; the prospectus which is included in the Registration Statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Base Prospectus”; and the amended or supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so amended or supplemented) is hereinafter called the “ Prospectus Supplement .” The Registration Statement at the time it originally became effective is hereinafter called the “ Original Registration Statement .” Any reference in this Agreement to the Registration Statement, the Original Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “ Incorporated Documents ”), if any, which were filed under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), at any given time, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Original Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be,

deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information that is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be. The Company has not received any notice that the Commission has issued or intends to issue a stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement or intends to commence a proceeding for any such purpose.

(b) Assurances . The Original Registration Statement, as amended, (and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented, if applicable, will not, contain 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. The Base Prospectus, and the Prospectus Supplement, each as of its respective date, comply or will comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof 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. The Incorporated Documents, if any, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Base Prospectus or Prospectus Supplement), in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, that have not been described or filed as required. The Company is eligible to use free writing prospectuses in connection with the Placement pursuant to Rules 164 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. The Company will not, without the prior consent of the Placement Agent, prepare, use or refer to, any free writing prospectus.

(c) Offering Materials . The Company has delivered, or will as promptly as practicable deliver, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities other than the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.

(d)     Authorization; Enforcement . The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement, the transaction documents with the Investors (expected to consist of a securities purchase agreement, form of Warrant, and registration rights agreement) (together, the “ Transaction Documents ”) and the Prospectus Supplement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of this Agreement and the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby and under the Prospectus Supplement have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Company’s Board of Directors (the “ Board of Directors ”) or the Company’s stockholders in connection therewith other than in connection with the Required Approvals (as defined in that certain Securities Purchase Agreement dated as of September 2, 2015, between the Company and each Investor (the “ Securities Purchase Agreement ”). This Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(e)     No Conflicts . The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant to the Transaction Documents and the Prospectus Supplement, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or

reasonably be expected to result in a Material Adverse Effect (as defined in the Securities Purchase Agreement).

(f) Representations and Warranties Incorporated by Reference . Each of the representations and warranties made to the Purchasers in the Securities Purchase Agreement, is hereby incorporated herein by reference (as though fully restated herein) and is hereby made to, and in favor of, the Placement Agent.

Section 3. Delivery and Payment . Closing shall occur at the offices of the Placement Agent (or at such other place as shall be agreed upon by the Placement Agent and the Company). Subject to the terms and conditions hereof, at each Closing payment of the purchase price for the Securities sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities, from the escrow account established therefor, and such Securities shall be registered in such name or names and shall be in such denominations, as the Placement Agent may request at least one business day before the time of purchase (as defined below).

Deliveries of the documents with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent. All actions taken at a Closing shall be deemed to have occurred simultaneously.

Section 4. Covenants and Agreements .

Section 4.1 The Company further covenants and agrees with the Placement Agent as follows:

(a)      Registration Statement Matters . The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to any Prospectus Supplement or any amended Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof. The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of any Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Offering. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus Supplement or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or any Prospectus Supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus Supplement or for additional information. The Company shall use its commercially reasonable efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its commercially reasonable efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A,

430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.

(b)      Blue Sky Compliance . The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document other than a Prospectus Supplement. The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.

(c)      Amendments and Supplements to a Prospectus Supplement and Other Matters . The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus Supplement. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of Securities contemplated by the Incorporated Documents or any Prospectus Supplement (the “ Prospectus Delivery Period ”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus Supplement in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus Supplement or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus Supplement that is necessary in order to make the statements in the Incorporated Documents and any Prospectus Supplement as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus Supplement, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus Supplement in connection with the Offering, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects within two business days, provided that the Company may file any document or report determined by the Company to be required to be filed pursuant to the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder within the time periods required for such filing irrespective of any such objection.

(d)      Copies of any Amendments and Supplements to a Prospectus Supplement . The Company will furnish the Placement Agent, without charge, during the period beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of the Incorporated Documents and any Prospectus Supplement and any amendments and supplements thereto (including any Incorporated Documents, if any) as the Placement Agent may reasonably request.

(e)      Free Writing Prospectus . The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent, make any offer relating to the Securities that would constitute a Company Free Writing Prospectus or that would otherwise constitute a “ free writing prospectus ” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents in writing to any such free writing prospectus (a “ Permitted Free Writing Prospectus ”), the Company covenants that it shall (i) treat each Permitted Free Writing Prospectus as a Company Free Writing Prospectus, and (ii) comply with the requirements of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

(f)      Transfer Agent . The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock.

(g)      Earnings Statement . As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any event not later than 18 months after the last Closing Date, the Company will make generally available to its security holders and to the Placement Agent an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date, that satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.

(h)      Periodic Reporting Obligations . During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act. As used herein, “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).

(i)      Additional Documents . The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably acceptable to the Company, Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and is a third party beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement with Investors in the Offering.

(j)      No Manipulation of Price . The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.

(k)      Acknowledgment . The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the

Placement Agent's prior written consent, except as required by law, regulation or order of any applicable governmental or regulatory authority.

Section 4.2    The Placement Agent represents, warrants, covenants and agrees with the Company as follows:

(a)    With respect to the Securities to be offered and sold in the Private Placement in reliance on Rule 506 under the Securities Act, none of the Placement Agent or any general partner or managing member of the Placement Agent, or any director, executive officer or other officer participating in the Offering of the Placement Agent or the general partner or managing member of the Placement Agent (any such person, a “Placement Agent Covered Person”) is subject to any of the "Bad Actor" disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a "Disqualification Event"), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Placement Agent has exercised reasonable care to determine whether any Placement Agent Covered Person is subject to a Disqualification Event. The Placement Agent has furnished to the Company a copy of any disclosures required in connection with any Placement Agent Covered Person under Rule 506(e).

(b)    The Placement Agent will notify the Company in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Placement Agent Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Placement Agent Covered Person, in each case, of which the Placement Agent has knowledge.

(c)     The Placement Agent understands and acknowledges that the Securities (other than the Shares) have not been and will not be registered under the Securities Act (except as contemplated in the Registration Rights Agreement to be dated as of the initial Closing Date between the Company and each Investor) and may not be offered or issued, except in compliance with the registration requirements of the Securities Act or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

(d)    The Placement Agent agrees that neither it nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Section 502(c) under the Securities Act) in connection with the Private Placement or attempt to place any Securities outside the United States to non-U.S. persons (as that terms is defined in Regulation S under the Securities Act) by means of any directed selling efforts (within the meaning of Regulation S).

(e)    The Placement Agent agrees that other than the Registration Statement, the Base Prospectus, any Prospectus Supplement, any amendment or supplement thereto and any Permitted Free Writing Prospectus (the “Public Offering Materials”), the Placement Agent (including its agents and representatives) has not made, used or referred to and will not make, use or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities other than the Public Offering Materials and any other written communications approved in advance by the Company.

Section 5. Conditions of the Obligations of the Placement Agent . The obligations of the Placement Agent hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date hereof and as of each Closing Date as though then made, to the timely performance by each of the Company of its covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:

(a)      Compliance with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus Supplement (in accordance with Rule 424(b)) and “ free writing prospectus ” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing or suspending the use of any Prospectus Supplement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company shall have been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory authority or stock exchange; all requests for additional information on the part of the Commission shall have been complied with; and the FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.

(b)      Corporate Proceedings . All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement and each Prospectus Supplement, and the registration (as to the Shares), sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably satisfactory to the Placement Agent's counsel, and such counsel shall have been furnished with such papers and information as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.

(c)      No Material Adverse Effect . Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the Placement Agent's sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect.

(d)      Opinion of Counsel for the Company . The Placement Agent shall have received on each Closing Date the favorable opinion of legal counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter, addressed to the Placement Agent in form and substance satisfactory to the Placement Agent.

(e)      Officers’ Certificate . The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents, any Prospectus Supplement, any Permitted Free Writing Prospectus and this Agreement and to the further effect that:

(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;

(ii) No stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or any Prospectus Supplement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by any securities commission, securities regulatory authority or stock exchange in

the United States and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory authority or stock exchange in the United States;

(iii) When the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission, contained all material information required to be included therein by the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and the Registration Statement and the Incorporated Documents, if any, did not and do not 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, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective date of the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission thereunder to be set forth in the Incorporated Documents which has not been so set forth; and

(iv) Subsequent to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any Prospectus Supplement, there has not been: (a) any transaction that is material to the Company and the Subsidiaries taken as a whole, except transactions entered into in the ordinary course of business; (b) any obligation, direct or contingent, that is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred in the ordinary course of business; (c) any material change in the capital stock (except changes thereto resulting from the exercise of outstanding stock options or warrants) or outstanding indebtedness of the Company or any Subsidiary; (d) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (e) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material Adverse Effect.

(f)      Escrow Agreement . The Company and the Placement Agent shall have entered into an escrow agreement with a commercial bank or trust company reasonably satisfactory to both parties pursuant to which the Investors shall deposit their subscription funds in an escrow account and the Company and the Placement Agent shall jointly authorize the disbursement of the funds from the escrow account. The Company shall pay the reasonable fees of the escrow agent.

(g)      Stock Exchange Listing . The Common Stock shall be registered under the Exchange Act and shall be listed on the principal Trading Market, and the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the principal Trading Market, nor shall the Company have received any information that the Commission or the principal Trading Market is contemplating terminating such registration or listing.

(h)      Additional Documents . On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.

If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section 8 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.

Section 6. Payment of Expenses . The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i) all expenses incident to the issuance, delivery and qualification of the Securities (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Base Prospectus and each Prospectus Supplement, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws or the securities laws of any other country, and, if requested by the Placement Agent, advising the Placement Agent of such qualifications, registrations and exemptions; (vii) if applicable, the filing fees incident to the review and approval by the FINRA of the Placement Agent's participation in the offering and distribution of the Securities; (viii) the fees and expenses associated with including the Securities on the Trading Market; (ix) all costs and expenses incident to the travel and accommodation of the Company’s employees on the “ roadshow ,” if any; and (x) all other fees, costs and expenses of the Company related to the Offering. The fees and expenses of the Placement Agent’s counsel and any other out-of-pocket expenses of the Placement Agent in connection with the Offering shall be reimbursed by the Company only to the extent set forth in the Engagement Letter.

Section 7. Indemnification and Contribution . The Company agrees to indemnify the Placement Agent in accordance with the provisions of Section B of Exhibit A to the Engagement Agreement, which is incorporated by reference herein and made a part hereof.

Section 8. Representations and Indemnities to Survive Delivery . The respective indemnities, agreements, representations, warranties and other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive delivery of and payment for the Securities to be sold in the proposed Offering and any termination of this Agreement. A successor to a Placement Agent, or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Agreement.

Section 9. Notices . All communications hereunder shall be in writing and shall be mailed, hand delivered, telecopied or sent by email and confirmed to the parties hereto as follows:

If to the Placement Agent to the address set forth above, attn: General Counsel, Facsimile: 305.572.4220.

With a copy to:

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, New York 10105

Facsimile: (201) 401-4741

Attention: Joseph Smith

If to the Company:

Amedica Corporation

1885 West 2100 South

Salt Lake City, UT 84119

Attention:

Email:

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

David Marx, Esq.

Dorsey & Whitney LLP

136 South Main Street, Suite 1000

Salt Lake City, UT 84101

Any party hereto may change the address for receipt of communications by giving written notice to the others.

Section 10. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative, and no other person will have any right or obligation hereunder.

Section 11. Partial Unenforceability . The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph 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.

Section 12. Governing Law Provisions . This Agreement shall be deemed to have been made and delivered in New York City and both this engagement letter and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the Placement Agent and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement letter and/or the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter to the venue of any such suit, action or

proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the Placement Agent and the Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement Agent’s address shall be deemed in every respect effective service of process upon the Placement Agent, in any such suit, action or proceeding. Notwithstanding any provision of this Agreement to the contrary, the Company agrees that neither the Placement Agent nor its affiliates, and the respective officers, directors, employees, agents and representatives of the Placement Agent, its affiliates and each other person, if any, controlling the Placement Agent or any of its affiliates, shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement and transaction described herein except for any such liability for losses, claims, damages or liabilities incurred by the Company that are finally judicially determined to have resulted from the bad faith, intentional misconduct or gross negligence of such individuals or entities. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

Section 13. General Provisions .

(a)    This Agreement, together with the Engagement Letter, 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. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement. Notwithstanding anything herein to the contrary, the Engagement Agreement shall continue to be effective and the terms therein, including but not limited to Section 4(b) with respect to any future offerings, shall continue to survive and be enforceable by the Placement Agent, in accordance with its terms.

(b)    The Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent has acted at arm’s length, is not an agent of, and owes no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only those duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agent arising from an alleged breach of fiduciary duty in connection with the offering of the Securities

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If the foregoing is in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.

Very truly yours,

AMEDICA CORPORATION ,

By: /s/ Ty Lombardi    

Name: Ty Lombardi

Title: VP Finance

The foregoing Placement Agency Agreement is hereby confirmed and accepted as of the date first above written.

LADENBURG THALMANN & CO. INC.

By: /s/ Nicholas Stergis    

Name: Nicholas Stergis

Title: Managing Director Investment Banking

 

EXHIBIT 10.5

FORM OF SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement (this “ Agreement ”) is dated as of September 8, 2015, between Amedica Corporation, a Delaware corporation (the “ Company ”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “ Purchaser ” and collectively, the “ Purchasers ”).

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to (i) an effective registration statement under the Securities Act of 1933, as amended (the “ Securities Act ”) as to the Shares and certain of the Series B Warrants, and (ii) an exemption from the registration requirements of Section 5 of the Securities Act contained in Section 4(a)(2) thereof and/or Regulation D thereunder as to the Series A Warrants, certain of the Series B Warrants, the Series C Warrants and the Series D Warrants, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.

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

ARTICLE I.

DEFINITIONS

1.1     Definitions . In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:

“ Acquiring Person ” shall have the meaning ascribed to such term in Section 4.7.

“ Action ” shall have the meaning ascribed to such term in Section 3.1(j).

“ Affiliate ” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.

“ Board of Directors ”    means the board of directors of the Company.

“ Business Day ” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

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

“ Closing Date ” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived.

“ Commission ” means the United States Securities and Exchange Commission.

“ Common Stock ” means the common stock of the Company, par value $0.01 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.

“ Common Stock Equivalents ” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“ Company Counsel ” means Dorsey & Whitney LLP, with offices located at 136 South Main Street, Suite 1000, Salt Lake City, Utah 84101.

“ Disclosure Schedules ” shall have the meaning ascribed to such term in Section 3.1.

“ EGS ” means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302.

“ Escrow Agent ” means Signature Bank, a New York State chartered bank, with offices at 261 Madison Avenue, New York, New York 10016.

“ Escrow Agreement ” means the escrow agreement entered into prior to the Closing Date, by and among the Company, the Escrow Agent and the Placement Agent pursuant to which the Purchasers shall deposit Subscription Amounts with the Escrow Agent to be applied to the transactions contemplated hereunder.

“ Evaluation Date ” shall have the meaning ascribed to such term in Section 3.1(s).

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

“ Exempt Issuance ” means the issuance of (a) shares of Common Stock, options or other equity awards to employees, officers or directors of the Company pursuant to any stock, equity or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) Securities issued and issuable hereunder, and securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

“ FCPA ” means the Foreign Corrupt Practices Act of 1977, as amended.

“ GAAP ” shall have the meaning ascribed to such term in Section 3.1(h).

“ Indebtedness ” shall have the meaning ascribed to such term in Section 3.1(bb).

“ Intellectual Property Rights ” shall have the meaning ascribed to such term in Section 3.1(o).

“ Legend Removal Date ” shall have the meaning ascribed to such term in Section 4.1(c).

“ Liens ” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.

“ Material Adverse Effect ” shall have the meaning assigned to such term in Section 3.1(b).

“ Material Permits ” shall have the meaning ascribed to such term in Section 3.1(n).

“ Per Share Purchase Price ” equals $0.381, 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.

“ 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.

“ Placement Agent ” means Ladenburg Thalmann & Co. Inc.

“ Proceeding ” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

“ Prospectus ” means the final prospectus filed for the Registration Statement.

“ Prospectus Supplement ” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the Company to each Purchaser at the applicable Closing.

“ Public Information Failure ” shall have the meaning ascribed to such term in Section 4.3(b).

“ Public Information Failure Payments ” shall have the meaning ascribed to such term in Section 4.3(b).

“ Purchaser Party ” shall have the meaning ascribed to such term in Section 4.10.

“ Registration Rights Agreement ” means the Registration Rights Agreement, dated the date hereof, among the Company and the Purchasers, in the form of Exhibit A attached hereto.

“ Registration Statement ” means the effective registration statement with Commission file No. 333-205545 which registers the sale of the Shares.

“ Required Approvals ” shall have the meaning ascribed to such term in Section 3.1(e).

“ Required Minimum ” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants, ignoring any exercise limits set forth therein.

“ Restricted Securities ” means the Warrants and the Underlying Shares.

“ Rule 144 ” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

“ Rule 424 ” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

 

“ SEC Reports ” shall have the meaning ascribed to such term in Section 3.1(h).

“ Securities ” means the Shares, the Warrants, and the Underlying Shares.

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Series A Warrants ” means, collectively, the Series A Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, in the form of Exhibit B attached hereto.

“ Series B Warrants ” means, collectively, the Series B Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, in the form of Exhibit C attached hereto.

“ Series C Warrants ” means, collectively, the Series C Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, in the form of Exhibit D attached hereto.

“ Series D Warrants ” means, collectively, the Series D Common Stock purchase warrants that may be delivered to the Purchasers upon exercise of the Series A Warrants, Series B Warrants or the Series C Warrants, in the form of Exhibit E attached hereto.

“ Shares ” means shares of common stock of the Company, par value $0.01 per share.

“ Shareholder Approval ” means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from the shareholders of the Company with respect to the transactions contemplated by the Transaction Documents, including the issuance of all of the Shares and Underlying Shares in excess of 19.99% of the issued and outstanding Common Stock on the Closing Date.

“ Short Sales ” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).

“ Subscription Amount ” shall mean, as to each Purchaser, the aggregate amount to be paid for the Shares purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.

“ Subsidiary ” means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.

“ Trading Day ” means a day on which the principal Trading Market is open for trading.

“ Trading Market ” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).

“ Transaction Documents ” means this Agreement, the Warrants, the Registration Rights Agreement, the Escrow Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.

“ Transfer Agent ” means American Stock Transfer & Trust Corporation, the current transfer agent of the Company, with a mailing address of 10150 Mallard Creek Road, Suite 307, Charlotte, North Carolina 28262 and a facsimile number of (718) 765-8742, and any successor transfer agent of the Company.

“ Underlying Shares ” means the shares of Common Stock issued and issuable upon exercise of the Warrants.

“ Variable Rate Transaction ” shall have the meaning ascribed to such term in Section 4.13(b).

“ Voting Agreement ” means the written agreement, in the form of Exhibit F attached hereto, of all of the officers, directors and stockholders holding more than 10% of the issued and outstanding shares of Common Stock on the date hereof to vote all Common Stock over which such Persons have voting control as of the record date for the meeting of stockholders of the Company, amounting to, in the aggregate, at least 1% of the issued and outstanding Common Stock.

“ VWAP ” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b)  if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (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 Purchasers

of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

“ Warrants ” means, collectively, the Series A Warrants, Series B Warrants, Series C Warrants and the Series D Warrants.

“ Warrant Shares ” means the shares of Common Stock issuable upon exercise of the Series A Warrants, the Series B Warrants, the Series C Warrants and the Series D Warrants.

ARTICLE II.

PURCHASE AND SALE

2.1 Closing . On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase up to an aggregate of $5,000,000 of Shares and Warrants, Each Purchaser shall deliver to the Escrow Agent, via wire transfer or a certified check, immediately available funds equal to its Subscription Amount and the Company shall deliver to each Purchaser its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the applicable Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of EGS or such other location as the parties shall mutually agree and the Placement Agent shall deliver to the Escrow Agent the Form of Escrow Release Notice (as defined in the Escrow Agreement), duly executed.

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) a legal opinion of Company Counsel, substantially in the form of Exhibit G attached hereto with respect to the Securities to be issued at such Closing;

(iii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“ DWAC ”) a number of Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;

(iv) the Voting Agreement, duly executed by the parties thereto;

(v) a Series A Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of such Purchaser’s Shares, with an exercise price equal to $0.47, subject to adjustment therein;

(vi) a Series B Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of such Purchaser’s Shares, with an exercise price equal to $0.47, subject to adjustment therein;

(vii) a Series C Warrant registered in the name of such Purchaser to purchase

up to a number of shares of Common Stock equal to 100% of such Purchaser’s Shares, with an exercise price equal to $0.47, subject to adjustment therein;

(viii) the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act); and

(ix) the Registration Rights Agreement duly executed by the Company.

(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company or the Escrow Agent, as applicable, the following:

(i) this Agreement duly executed by such Purchaser;

(ii) to the Escrow Agent, such Purchaser’s Subscription Amount, by wire transfer to the account specified in the Escrow Agreement; and

(iii) the Registration Rights Agreement duly executed by such Purchaser.

(a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);

(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and

(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.

(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they are accurate as of such date);

(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;

(iii) the Company shall have entered into the settlement and waiver agreement with MG Partners II Ltd. on or before the date hereof, in the form satisfactory to the Purchasers;

(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this

Agreement;

(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and

(vi) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the applicable Closing.

ARTICLE III.