CareView Communications, Inc. 8-K  

Exhibit 10.1

MODIFICATION AGREEMENT

THIS MODIFICATION AGREEMENT (this “ Agreement ”) is made and entered into as of February 2, 2018, to effectuate the modification pursuant to the Binding Forbearance Term Sheet (the “ Binding Term Sheet ”) entered into as of December 28, 2017 (the “ Effective Date ”), by and among CAREVIEW COMMUNICATIONS, INC., a Nevada corporation (“ Holdings ”), CAREVIEW COMMUNICATIONS, INC., a Texas corporation and a wholly-owned subsidiary of Holdings (the “ Borrower ”), CAREVIEW OPERATIONS, L.L.C., a Texas limited liability company (the “ Subsidiary Guarantor ”), and PDL INVESTMENT HOLDINGS, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company (both in its capacity as the lender (“ Lender ”) and in its capacity as Agent (solely in such capacity as Agent, the “ Agent ”)) under the Credit Agreement (as defined below).

RECITALS

A.       

R eference is made to: (i) that certain Credit Agreement dated as of June 26, 2015 (as amended, supplemented or modified as of the date hereof, including pursuant to that certain First Amendment to Credit Agreement dated as of October 7, 2015, the “ Credit Agreement ”; capitalized terms used and not defined herein shall have the meaning set forth in the Credit Agreement), among Holdings, the Borrower, the Lender and the Agent, pursuant to which Lender agreed to make Loans to Borrower (consisting of the Tranche One Loan and the Tranche Two Loan) upon the occurrence of certain conditions and made the Tranche One Loan (by that certain Tranche One Term Note dated as of October 7, 2015) in the original aggregate principal amount of $20,000,000; and (ii) each of the documents listed on Exhibit A hereto (collectively, with this Agreement, the Credit Agreement, and each other document defined as a “Loan Document” in the Credit Agreement, the “ Loan Documents ”).

B.       

The parties entered into the Binding Term Sheet to modify certain provisions of the Credit Agreement and the other Loan Documents to prevent an Event of Default from occurring.

C.       

Pursuant to the Binding Term Sheet, the parties agreed that : (i) the Borrower would not make the principal payment due under the Credit Agreement on December 31, 2017 until the end of the Modification Period; (ii) the Borrower would not pay the principal installments due at the end of each calendar quarter during the Modification Period; and (iii) because the Borrower’s Liquidity was anticipated to fall below $3,250,000, the Liquidity required during the Modification Period would be lowered (collectively, the “ Covered Events ”). The Lender, the Agent, Holdings, the Borrower and the Subsidiary Guarantor wish to enter into this Agreement to set forth the terms and conditions pursuant to which the parties will address the Covered Events.

NOW, THEREFORE , in consideration of the above premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

AGREEMENT

1.        

Reaffirmation of Loan Documents . Each of Holdings, the Borrower and the Subsidiary Guarantor hereby acknowledges and reaffirms its respective obligations, duties, covenants and liabilities, including, without limitation, each guaranty, pledge and grant of security interest, under or in connection with the Loan Documents, including, but not limited to, the obligation to pay any and all amounts due thereunder. Each of Holdings and the Borrower hereby represents, warrants and agrees that (a) the current amount due under the Loan Documents as of February 2, 2018 is $20,240,000 and (b) as of the date hereof, there are no claims, demands, offsets or defenses at law or in equity that would defeat or diminish any present and unconditional right of the Agent to collect the indebtedness or other amounts due and owing evidenced by, or arising in connection with, the Loan Documents and to proceed to enforce the rights and remedies available to the Agent pursuant to the Loan Documents or under applicable law.

2.        

Modification Period . Subject to the terms and conditions set forth herein, so long as no Modification Termination Event (as defined below) shall have occurred, each of the Agent and the Lender agrees that the occurrence and continuance of any of the Covered Events shall not constitute Events of Default from the Effective Date through the earliest to occur of any Modification Termination Event (the “ Modification Period ”) and, for the avoidance of doubt, that the Default Rate shall not apply during the Modification Period. As used herein, “ Modification Termination Event ” shall mean the earliest to occur of: (a) the occurrence of any Event of Default under any Loan Documents that does not constitute a Covered Event; (b) the occurrence of any Agreement Event of Default (as defined below); (c) the Lender’s delivery to Holdings and the Borrower of a Lender Termination Notice (as defined below); and (d) December 31, 2018, subject to the Lender’s right, in its sole discretion, to terminate the Modification Period on May 31, 2018 and September 30, 2018 (with each such date permitted to be extended by the Lender in its sole discretion). Notwithstanding any other provision of this Modification Agreement or any other Loan Document, all principal and interest otherwise due to Lender through the end of the Modification Agreement shall be due and payable at the end of the Modification Period and if not paid in full in Cash at that time shall bear interest at the Default Rate from and after the end of the Modification Period.  

3.       

Conditions Precedent .

The Modification Period shall commence retroactively as of the Effective Date but upon the satisfaction of all of the following conditions precedent (the “ Conditions ”), with any such document listed below being satisfactory in form and substance to the Agent in its sole discretion:

(a)       

execution and delivery to Agent, on the date hereof, of a counterpart of this Agreement;

(b)       

delivery to the Agent of a certificate of the Secretary of each of Holdings, the Borrower and the Subsidiary Guarantor certifying a copy of the resolutions of Holdings, the Borrower and the Subsidiary Guarantor, respectively, approving the execution and delivery of this Agreement and the performance by Holdings, the Borrower and the Subsidiary Guarantor of their respective obligations hereunder;

(c)       

execution and delivery to Agent, on the date hereof of documents that:
(i) amend and restate the Warrants to adjust the Warrant exercise price to the current market value of the common stock of Holdings on terms that are satisfactory to the Lender in its sole discretion as set forth in the Second Amended and Restated Warrant; (ii) to the extent necessary or desirable, amend and restate the Registration Rights Agreement and any other documentation related to the Warrants and the Registration Rights Agreement; and (iii) evidence such amendments and all consents required in connection therewith and with each Modification Document;

(d)       

the Borrower has provided a written consent and acknowledgement from each holder of the notes issued pursuant to the HealthCor Debt Documents through an amendment to the Intercreditor Agreement: (i) confirming that any lien of such noteholder would be automatically released in the event of a sale of the Borrower’s hospital assets on terms acceptable to the Agent in its sole discretion; and (ii) reaffirming such noteholder’s obligations under the Intercreditor Agreement; and

(e)       

the Borrower has provided a written amendment to the JV Promissory Note pursuant to which JV Seller agrees that no more than 50% of each quarterly principal payment will be made in respect of the JV Promissory Note from January 1, 2018 through the termination of the Modification Period.

4.       

Representations and Warranties . Each of Holdings, the Borrower and the Subsidiary Guarantor hereby represents and warrants to the Agent that:

(a)       

this Agreement and the documents and instruments to be entered into in connection therewith, including, without limitation, (i) the Amendment to Intercreditor Agreement (including consents pursuant to Note and Warrant Purchase Agreement), (ii) the Second Amended and Restated Warrant, and (iii) the Amended and Restated Registration Rights Agreement (collectively, the “ Modification Documents ”) have been duly authorized, executed and delivered by Holdings, the Borrower and the Subsidiary Guarantor, and each Modification Document constitutes an obligation of such party, enforceable against such party in accordance with its terms;

(b)       

immediately after giving effect to this Agreement, the representations and warranties of Holdings, the Borrower and the Subsidiary Guarantor set forth in the Loan Documents are true and correct in all material respects on and as of the Effective Date, except to the extent such representations and warranties (i) expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects as of such earlier date) or (ii) expressly relate to the existence and continuance of a Covered Event;

(c)       

immediately after giving effect to this Agreement, no Default or Event of Default shall have occurred under any of the Loan Documents or the Modification Documents;

(d)       

the Collateral for the Loan has not been transferred, pledged or encumbered, directly or indirectly, except as expressly permitted by the Loan Documents or the Modification Documents;

(e)       

the Recitals of this Agreement are true and correct in all respects; and

(f)       

all of the Loan Documents and the Modification Documents, and any other documents and instruments executed in connection therewith, are in full force and effect, valid, legally binding and enforceable against each of Holdings, the Borrower and the Subsidiary Guarantor.

5.       

Covenants . Each of Holdings, the Borrower and the Subsidiary Guarantor hereby covenants and agrees as follows:

(a)       

The Borrower shall obtain: (i) at least $2,250,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to February 23, 2018; and (ii) an additional $3,000,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to May 31, 2018 (resulting in aggregate net cash proceeds of $5,250,000); provided that all such Debt described in clauses (i) and (ii) shall be subordinated to the Loans under the Credit Agreement on terms satisfactory to the Lender in its sole discretion. The Borrower shall provide to the Agent a reasonably detailed summary of the material terms of any such Capital Stock or Debt at least five (5) business days before the documents implementing any such transaction are executed, and copies of all proposed documents for any such Capital Stock or Debt before such documents are executed. The Borrower shall promptly provide to the Agent documentation evidencing the issuance or incurrence of such investments.

(b)       

The Borrower shall not suffer or permit Liquidity to be less than $2,500,000 at any time. For the avoidance of doubt, any breach of the Liquidity covenant set forth in Section 7.16 of the Credit Agreement during the Modification Period shall not constitute an Event of Default under the Credit Agreement, Agreement Event of Default or Modification Termination Event so long as the Borrower does not suffer or permit Liquidity to be less than $2,500,000 at any time.

(c)       

In the event of any sale or transfer of assets of the Borrower or Holdings (but not including any sale of all or substantially all of the assets of the Borrower and its Subsidiaries subject to Section 5(f) below), all of the proceeds of such sale or transfer (net of reasonable and customary legal and advisor’s fees incurred in connection therewith) shall be first applied to repay all amounts owed under the Loan Documents, including but not limited to any accrued interest and deferred payments of principal, in cash and until all amounts outstanding under the Loan Documents are Paid in Full.

(d)       

In the event that the Borrower separates or transfers the senior care business, including but not limited to a sale to, or merger with, a third party of the senior care business or otherwise establishes a senior care business, or in the event that the Borrower disposes of substantially all business divisions other than the senior care business such that the Borrower’s remaining assets consist substantially of the Borrower’s senior care business, the Lender shall be issued 7.5% of the equity in such senior care business (on a fully diluted basis) (the “ Equity Grant ”), which Equity Grant shall be in addition to any interests represented by the Warrants; provided, however, that in the event of a sale of the senior care business to an unrelated third party, the Lender shall be paid 7.5% of the equity value of such business in Cash or in the same equity securities received by Borrower or its equity holders from the purchaser of the senior care business.

(e)       

Notwithstanding any other provision of this Agreement if all amounts owed to the Lender under the Loan Documents have been Paid in Full on or prior to December 31, 2018 (and for the avoidance of doubt, even if the Equity Grant has occurred first), then the Equity Grant (or, as the case may be, a payment in cash or equity received from a purchaser) shall have a value, or shall be equitably adjusted to have a value, that is equal to the lesser of 7.5% of the equity in the senior care business or $5,000,000, which value shall be determined pursuant to: (i) a third-party valuation performed in connection with the first liquidity event or financing event to occur with respect to the senior care business (including the valuation in a transaction with an unrelated third party contemplated in Section 5(d) above); or (ii) in the event that the Lender desires to sell its Equity Grant in a private transaction, a 409A valuation to be performed at the Lender’s sole expense by a third party that is reasonably acceptable to the Borrower and the Lender.

(f)       

In the event of any sale of all or substantially all of the assets of the Borrower and its Subsidiaries at a time when amounts under the Loan Documents remain outstanding, then (i) the proceeds of such sale or transfer (net of reasonable and customary legal and advisor’s fees incurred in connection therewith) shall be applied to repay all amounts owed under the Loan Documents until all outstanding amounts are Paid in Full, and (ii) the Lender shall be promptly paid a sum of $5,000,000 in cash from the proceeds of such sale or transfer; provided, however, that no payment shall be made under clause (ii) of this Section 5(f) if the Lender has previously received a cash payment or equity from a purchaser in respect of the Equity Grant; and, provided, further, that the Equity Grant shall be automatically terminated and deemed cancelled upon the delivery to the Lender of a payment contemplated by clause (ii) of this Section 5(f), with no further action or consent required on the part of the Lender.

(g)       

The Borrower shall achieve a reduction in operating expenses, compared to the operating expenses of the Borrower incurred in October 2017, of at least: (i) $113,000 for the month of January 2018; (ii) $148,000 for the month of February 2018; and (iii) $167,000 for each other month for the duration of the Modification Period.

(h)       

As of the Effective Date, the Lender shall be granted observation rights with respect to meetings (including telephonic meetings) of the boards of directors of the Borrower or Holdings (the “ Board of Directors ”), including any executive sessions, committee meetings or similar events (and be provided (i) reasonable prior written notice of any such meeting and (ii) copies of board and committee materials to be distributed at such meeting at least three (3) calendar days prior to any such meeting) and excluding solely such meeting or portions thereof as may be necessary or reasonably advisable to protect any privileged information or matter, based on the advice of counsel, which advice may be written or oral, it being understood and agreed that any such exclusion shall be limited to the extent possible and solely in accordance with such advice.

(i)       

The Chief Executive Officer of the Borrower and Jeffrey Lightcap, in his role as a member of the Board of Directors, shall participate in monthly calls with the Lender to discuss updates with respect to the Borrower’s business.

6.       

Release of Claims . In consideration of the Lender’s and Agent’s agreements contained in this Agreement, each of Holdings, the Borrower and the Subsidiary Guarantor hereby releases and discharges the Lender and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “ Released Person ”) of and from any and all other claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which Holdings, the Borrower or the Subsidiary Guarantor ever had or now has against the Agent, the Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of the Agent, the Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.

7.       

Lender Termination Notice . Lender may, in its sole discretion and for no reason given, terminate the Modification Period on May 31, 2018 and September 30, 2018 (with each such date permitted to be extended by the Lender in its sole discretion) by delivering a written notice to the Borrower on or prior to the date of such termination, stating the Lender’s election to terminate the Modification Period as of such date (a “ Lender Termination Notice ”). The delivery of a Lender Termination Notice shall give rise to the remedies set forth in Section 9 below.

8.       

Events of Default . Each of the following events shall be an event of default hereunder (each an “ Agreement Event of Default ”) and shall give rise to the remedies set forth in Section 9 below. Each Agreement Event of Default shall also constitute an Event of Default under the Credit Agreement and other Loan Documents and shall give rise to the rights and remedies thereunder.

(a)       

Performance of Modification Agreement . Holdings, the Borrower or the Subsidiary Guarantor shall fail to timely perform or observe any obligation or any of the terms, provisions, covenants, conditions, and/or agreements contained in this Agreement or the Exhibits to this Agreement.

(b)       

Accuracy of Representations . Any representation or warranty made in writing by or on behalf of Holdings, the Borrower or the Subsidiary Guarantor pursuant to this Agreement or any other Modification Document, or the information (other than any projections or other forward-looking statements), taken as a whole, in any written report, certificate, financial statement or other written document furnished in connection with this Agreement or any other Modification Document, or otherwise in connection with the transactions contemplated hereby, shall be inaccurate or incomplete in any material respect.

(c)       

Breach of Any Covenant or Failure to Amend JV Promissory Note . Any breach by the Borrower of any of the covenants set forth in this Agreement or failure to deliver to the Agent and the Lender an amendment to the JV Promissory Note pursuant to which JV Seller agrees that no more than 50% of each quarterly principal payment will be made in respect of the JV Promissory Note from January 1, 2018 through the termination of the Modification Period.

(d)       

Adverse Action . Holdings, the Borrower or the Subsidiary Guarantor shall (i) initiate or assert any action, cause of action, claim, demand, damages or liability of whatever kind or nature, in law or in equity, against the Agent or the Lender, or (ii) object to or dispute any claim or lien of the Agent or the Lender.

9.       

Remedies . Upon the delivery of a Lender Termination Notice or the occurrence of an Agreement Event of Default or Modification Termination Event: (a) the Modification Period and the modification hereunder shall terminate automatically; (b) all obligations of the Agent hereunder shall terminate automatically; (c) all obligations owed to the Agent, including, without limitation, all amounts outstanding under the Loan Documents shall, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, be forthwith due and payable; (d) the Agent may immediately, and without expiration of any period of grace or any further period of reinstatement or redemption, enforce payment of all obligations owed to the Agent hereunder and under the Loan Documents, and may exercise any and all other rights, powers and remedies granted to it under the Loan Documents, at law, in equity, or otherwise; and (e) all obligations of Holdings, the Borrower and the Subsidiary Guarantor hereunder, including, without limitation, all covenants under Article 5 hereof, shall continue in full force and effect until all amounts outstanding under the Loan Documents are Paid in Full.

10.       

Transaction Costs . In consideration of the Agent’s willingness to enter into this Agreement, the Borrower shall pay all documented out-of-pocket costs and expenses of the Agent, including, without limitation, (a) legal fees, title searches, recording fees, and all other fees and expenses incurred in connection with this Agreement, and (b) all costs and expenses incurred by the Agent and the Lender in connection with the collection of the Obligations and enforcement of this Agreement, the other Loan Documents or any such other documents.

11.       

[Reserved]

12.       

Advice of Counsel . Each of Holdings, the Borrower and the Subsidiary Guarantor acknowledges that it has sought the advice of, and has been advised by, legal counsel of its choice, in connection with the negotiation of this Agreement, and that it has willingly entered into this Agreement with full understanding of the legal and financial consequences of this Agreement.

13.       

Non-Impairment . Except as expressly provided herein, nothing in this Agreement shall alter or affect any provision, condition or covenant contained in the Loan Documents, or affect or impair any rights, powers, or remedies hereunder or thereunder, it being the intent of the parties hereto that the provisions of the Loan Documents shall continue in full force and effect except as expressly modified hereby.

14.       

No Waiver . No failure to exercise, and no delay in exercising any right, power or remedy hereunder or under any Loan Document or any Modification Document shall impair any right, power or remedy which the Agent may have, nor shall any such delay be construed to be a waiver of any of such rights, powers, or remedies, or an acquiescence in any breach or default under any Loan Document or any Modification Document, nor shall any waiver of any breach or default of the Borrower hereunder be deemed a waiver of any breach or default subsequently occurring. The rights and remedies herein specified are cumulative and not exclusive of any rights or remedies which the Agent would otherwise have.

15.       

Integration; Interpretation . The Loan Documents and the Modification Documents contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated therein, and supersede all prior negotiations and documents, including, without limitation, any term sheet, but the Loan Documents are not being superseded by the Modification Documents, except to the limited extent that the Modification Documents expressly provide. The Loan Documents and Modification Documents shall not be modified except by written instrument executed by all parties. Any reference to the Loan Documents in any of the Loan Documents includes any amendments, renewals or extensions approved by the Agent and all of the Modification Documents.

16.       

No Further Commitment . Without limiting the foregoing, each of Holdings, the Borrower and the Subsidiary Guarantor expressly acknowledges that, except as specifically set forth in this Agreement, neither Lender nor the Agent: (a) has made or is making any commitment for, and there is no understanding, explicit or implicit, relating to, or affecting, any modification or forgiveness of future or past interest (whether at the Default Rate or otherwise) and/or principal, or any other matter; (b) has made any commitment with respect to, and there is no understanding, explicit or implicit, relating to or affecting the terms of any further modification or restructure or workout which may be entered into with respect to the Loans; and (c) has made or is making any commitment for, and there is no understanding, explicit or implicit, relating to or affecting any amendment or waiver of any of Lender’s or Agent’s rights under the Loan Documents, all of which are expressly preserved.

17.       

Miscellaneous . This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to conflicts of law principles. In the event any provision of this Agreement is deemed to conflict with the Credit Agreement or any other Loan Document, the provisions of this Agreement shall control.

18.       

Headings; Severability . The headings used in this Agreement are for convenience only and shall be disregarded in interpreting the substantive provisions of this Agreement. Time is of the essence of each term of the Loan Documents and the Modification Documents, including this Agreement. If any provision of any Loan Document or Modification Document shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed therefrom, and the remaining parts shall remain in full force as though the invalid, illegal or unenforceable portion had never been a part thereof.

19.       

Counterparts . This Agreement may be executed by facsimile or other electronic means, and in any number of counterparts, each of which when executed and delivered to the Agent will be deemed to be an original and all of which, taken together, will be deemed to be one and the same instrument.

[SIGNATURES FOLLOW ON NEXT PAGE]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above.

[Signature Page to Modification Agreement]

[Signature Page to Modification Agreement]

EXHIBIT A

CareView Communications, Inc. 8-K  

Exhibit 10.2

THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, DISTRIBUTED, TRANSFERRED OR OTHERWISE DISPOSED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.

SECOND AMENDED AND RESTATED

WARRANT TO PURCHASE COMMON STOCK OF

CAREVIEW COMMUNICATIONS, INC.

CareView Communications, Inc., a Nevada corporation (the “ Company ”), for value received, hereby certifies that PDL Investment Holdings, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company, or its registered assigns (the “ Registered Holder ”), is entitled, subject to the terms set forth herein, to purchase from the Company, at any time after the date hereof and on or before October 7, 2025 (the “ Expiration Date ”), up to Four Million Four Hundred and Forty Four Thousand Four Hundred and Forty Five (4,444,445) shares, as adjusted from time to time pursuant to the provisions of this Second Amended and Restated Warrant (this “ Warrant ”), of common stock of the Company, par value $0.001 (“ Common Stock ”), at an exercise price equal to $0.0273. The securities issuable upon exercise of this Warrant and the exercise price per share, each as adjusted from time to time pursuant to the provisions of this Warrant, are sometimes hereinafter referred to as the “ Warrant Stock ” and the “ Exercise Price ,” respectively.

This Warrant is issued pursuant to that certain Credit Agreement dated as of June 26, 2015, as amended by that certain First Amendment to Credit Agreement, dated as of October 7, 2015 (as amended, the “ Credit Agreement ”), by and among the Company, CareView Communications, Inc., a Texas corporation and a wholly-owned subsidiary of the Company (“ CareView Communications ”), and the Registered Holder (as assignee of PDL BioPharma, Inc.), as modified by that certain Modification Agreement dated as of the date hereof by and among the Company, CareView Communications, CareView Operations, L.L.C., a Texas limited liability company, and the Registered Holder.

This Warrant amends and restates in its entirety that certain Warrant to Purchase Common Stock originally issued to PDL BioPharma, Inc. on June 26, 2015, as amended by the Amended and Restated Warrant to Purchase Common Stock dated October 7, 2015, to adjust the initial Exercise Price to $0.0273, subject to adjustment from time to time pursuant to the provisions of this Warrant.

Section 1.1            Payment . Subject to compliance with the terms and conditions of this Warrant and applicable securities laws, this Warrant may be exercised by the Registered Holder, in whole or in part, at any time or from time to time, on or before the Expiration Date by (a) surrender of this Warrant at the principal office of the Company, or such other office or agency as the Company may designate, together with the form of Notice of Exercise attached hereto as Exhibit A (the “ Notice of Exercise ”) duly executed by the Registered Holder or by such Registered Holder’s duly authorized attorney, and (b) payment in full of the aggregate Exercise Price payable in respect of the number of shares of Warrant Stock purchased upon such exercise (the “ Purchase Price ”), unless the Registered Holder elects a net issue exercise in accordance with Section 1.2. The Purchase Price may be paid by (i) cash, check or wire transfer of immediately available funds to the Company, (ii) cancellation and surrender by the Registered Holder of promissory notes or other instruments representing indebtedness of the Company to the Registered Holder or (iii) a combination of (i) and (ii).

Section 1.2            Net Issue Exercise .

(a)          In lieu of exercising this Warrant in the manner provided in Section 1.1, the Registered Holder may elect to receive shares of Warrant Stock equal to the value of this Warrant (or the portion thereof being exercised and canceled) by surrender of this Warrant at the principal office of the Company, or such other office or agency as the Company may designate, together with the Notice of Exercise duly executed by the Registered Holder or such Registered Holder’s duly authorized attorney, in which event the Company shall issue to the Registered Holder a number of shares of Warrant Stock computed using the following formula:

All references herein to an “exercise” of the Warrant in this Warrant shall include an exchange pursuant to this Section 1.2.

(b)           For purposes of this Warrant, the term “Fair Market Value” of a share of Warrant Stock as of a particular date shall mean:

(i)             If the Common Stock is traded on a securities exchange or Nasdaq, the Fair Market Value shall be deemed to be the average of the closing prices thereof on such exchange or market over the 30 trading days ending immediately prior to (but not including) the applicable date of valuation;

(ii)            If the Common Stock is actively traded over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices over the 30-day period ending immediately prior to (but not including) the applicable date of valuation;

(iii)           If there is no active public market for the Common Stock but there is an active public market for a class or series of capital stock of the Company into which the Common Stock is convertible, then if such class or series of capital stock is:

 (A)           traded on a securities exchange or Nasdaq, the Fair Market Value shall be deemed to be the average of the closing prices of a share of such class or series of capital stock of the Company on such exchange or market over the five trading days ending immediately prior to (but not including) the applicable date of valuation multiplied by the number of shares of such class or series of capital stock into which one share of the Common Stock is convertible, or

 (B)           actively traded over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices for a share of such class or series of capital stock of the Company over the 30-day period ending immediately prior to (but not including) the applicable date of valuation multiplied by the number of shares of such class or series of capital stock into which one share of the Common Stock is convertible; or

(iv)           If there is no active public market for the Common Stock or any other class or series of capital stock of the Company into which the Common Stock is convertible, the Fair Market Value shall be the highest price which the Company could obtain on the date of calculation from a willing buyer (not a current employee or director) for shares of Common Stock sold by the Company, from authorized but unissued shares, as reasonably determined in good faith by the Board of Directors.

Section 1.3            Effective Time of Exercise . The exercise of this Warrant in whole or in part shall be deemed to have been effected immediately prior to the close of business on the day on which a Notice of Exercise with respect to this Warrant shall have been surrendered to the Company as provided in Section 1.1 or Section 1.2 above, as applicable. The person entitled to receive shares of Warrant Stock issuable upon exercise of this Warrant in whole or in part shall be treated for all purposes as the holder of record of such shares as of the close of business on the date the Registered Holder is deemed to have exercised this Warrant.

Section 1.4           Stock Certificates; Fractional Shares; Partial Exercise .

(a)          As soon as practicable on or after the date of exercise determined in accordance with Section 1.3, the Company shall issue the number of shares of Warrant Stock to which the Registered Holder is entitled upon the exercise. On or before the first business day following the date of any exercise of this Warrant, the Company shall transmit by facsimile an acknowledgment of confirmation of receipt of the Notice of Exercise to the Registered Holder and the Company’s transfer agent (the “ Transfer Agent ”). On or before the third business day following the date of any exercise of this Warrant, the Company shall (A) provided that the Transfer Agent is participating in The Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer Program, upon the request of the Registered Holder, credit the aggregate number of Warrant Stock to which the Registered Holder is entitled pursuant to such exercise to the Registered Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal At Custodian system, or (B) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver by overnight courier to the address as specified in the Notice of Exercise, a certificate, registered in the Company’s share register in the name of the Registered Holder or its designee, for the number of shares of Warrant Stock to which the Registered Holder is entitled pursuant to such exercise. The Company shall be responsible for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the issuance of Warrant Stock via DTC, if any. Any certificates so delivered shall be in such denominations as may be requested by the Registered Holder and shall be registered in the name of the Registered Holder or such other name as shall be designated by the Registered Holder, as specified in the Notice of Exercise.

(b)          No fractional shares or scrip representing fractional shares shall be issued upon an exercise of this Warrant. In lieu of any fraction shares which would otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the Fair Market Value of one share of Warrant Stock on the date of exercise determined in accordance with Section 1.3.

(c)          In case of any partial exercise of this Warrant, the Company shall cancel this Warrant and shall execute and deliver a new warrant or warrants (dated the date hereof) of like terms and with the same date, calling in the aggregate on the face or faces thereof for the number of shares of Warrant Stock equal (without giving effect to any adjustment thereof) to the number of such shares called for on the face of this Warrant minus the number of such shares purchased by the Registered Holder upon such exercise as provided in this Section 1 (without giving effect to any adjustment thereof).

The number of shares of Warrant Stock issuable upon exercise of this Warrant and the Exercise Price are subject to adjustment as follows:

Section 2.1           Adjustment for Stock Splits, Stock Subdivisions or Combinations of Shares . If all or any portion of the outstanding shares of the Common Stock shall be subdivided into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision shall, simultaneously with the effectiveness of such subdivision, be proportionately reduced. If all or any portion of the outstanding shares of the Common Stock shall be combined into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Exercise Price, the number of shares of Warrant Stock purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (a) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment, by (b) the Exercise Price in effect immediately after such adjustment.

Section 2.2           Adjustment for Dividends or Distributions of Stock or Other Securities or Property . In case the Company shall make or issue, or shall fix a record date for the determination of eligible holders entitled to receive, a dividend or other distribution with respect to all or any portion of the outstanding shares of the Common Stock payable in (a) securities of the Company or (b) assets (excluding cash dividends paid or payable solely out of retained earnings), then, in each such case, the Registered Holder on exercise hereof at any time after the consummation, effective date or record date of such dividend or other distribution, shall receive, in addition to the shares of Warrant Stock issuable on such exercise prior to such date, and without the payment of additional consideration therefor, the securities or such other assets of the Company to which the Registered Holder would have been entitled upon such date if the Registered Holder had exercised this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional stock available by it as aforesaid during such period giving effect to all adjustments called for by this Section 2.

Section 2.3           Reclassification . If the Company, by reclassification of securities or otherwise, shall change the Common Stock into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the Common Stock immediately prior to such reclassification or other change and the Exercise Price therefore shall be appropriately adjusted, all subject to further adjustment as provided in this Section 2. No adjustment shall be made pursuant to this Section 2.3 upon any conversion or redemption of Common Stock which is the subject of Section 2.5.

Section 2.4           Adjustment for Capital Reorganization, Merger or Consolidation . In case of any capital reorganization of the capital stock of the Company (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), any Acquisition or any other merger or consolidation of the Company with or into another organization, or the sale of all or substantially all the assets of the Company then, and in each such case, as a part of such transaction, lawful provision shall be made so that the Registered Holder shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the applicable Purchase Price, the number of shares of stock or other securities or property of the successor organization resulting from such transaction that a holder of the securities deliverable upon exercise of this Warrant would have been entitled to receive in such transaction if this Warrant had been exercised immediately before such transaction, all subject to further adjustment as provided in this Section 2. The foregoing provisions of this Section 2.4 shall similarly apply to successive acquisitions, reorganizations, consolidations, mergers, sales, transfers and similar transactions and to the stock or securities of any other organizations that are at the time receivable upon the exercise of this Warrant. If the per-share consideration payable to the Registered Holder for shares in connection with any such transaction is in a form other than cash, then the provisions of Section 1.2(b) shall be applied except that each reference to Warrant Stock shall be replaced by the consideration payable in connection with such transaction. If the provisions of Section 1.2(b) cannot be applied to value such consideration, then the value of such consideration shall be determined in good faith by the Company’s Board of Directors. In all events, appropriate adjustment, as determined in good faith by the Company’s Board of Directors, shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Registered Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant.

Section 2.5           Conversion of Warrant Stock . In case all or any portion of the outstanding shares of the Common Stock are redeemed or converted into other securities or property pursuant to the Company’s Articles of Incorporation or otherwise, or the Common Stock otherwise ceases to exist, then, in such case, the Registered Holder of this Warrant, upon exercise hereof at any time after the date on which the Common Stock is so redeemed or converted, or ceases to exist (the “ Termination Date ”), shall receive, in lieu of the number of shares of Warrant Stock that would have been issuable upon such exercise immediately prior to the Termination Date, the securities or property that would have been received if this Warrant had been exercised in full and the Warrant Stock received thereupon had been simultaneously converted immediately prior to the Termination Date, all subject to further adjustment as provided in this Warrant. Additionally, the Exercise Price shall be immediately adjusted to equal the quotient obtained by dividing (a) the aggregate Purchase Price of the maximum number of shares of Warrant Stock for which this Warrant was exercisable immediately prior to the Termination Date by (b) the number of shares of Warrant Stock for which this Warrant is exercisable immediately after the Termination Date, all subject to further adjustment as provided herein.

Section 2.6           Certificate as to Adjustments . When any adjustment in the Exercise Price or the number or type of shares issuable upon exercise of this Warrant is required to be made pursuant to this Section 2, the Chief Financial Officer or Controller of the Company shall compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth (a) a brief statement of the facts upon which such adjustment is based, (b) the Exercise Price after such adjustment and (c) the kind and amount of stock into which this Warrant shall be exercisable after such adjustment. The Company shall promptly send (by electronic transmission and/or facsimile and by either first class mail, postage prepaid or overnight delivery) a copy of each such certificate to the Registered Holder.

Section 3.1           Unregistered Securities . Each holder of this Warrant acknowledges that this Warrant and the Warrant Stock have not been registered under the Securities Act of 1933, as amended (the “ Securities Act ”), and agrees not to sell, offer for sale, pledge, hypothecate, distribute, transfer or otherwise dispose of this Warrant or any Warrant Stock issued upon its exercise in the absence of (a) an effective registration statement under the Securities Act as to this Warrant or such Warrant Stock and registration or qualification of this Warrant or such Warrant Stock under any applicable state securities law then in effect, (b) an applicable exemption from such registration requirements of the Securities Act and registration or qualification requirements under any applicable state securities law then in effect or (c) the availability of Rule 144 promulgated under the Securities Act for the sale of such securities. Each certificate or other instrument for Warrant Stock issued upon the exercise of this Warrant pursuant to Section 1.4(a) shall bear a legend as follows, unless issued or sold pursuant to an effective registration statement or if, in the reasonable opinion of securities counsel for the Company, such legend is not necessary:

“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, DISTRIBUTED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.”

Section 3.2           Transferability .

(a)          This Warrant and all rights and obligations hereunder may be transferred to any person, in whole or in part, on the books of the Company maintained pursuant to Section 3.3 upon surrender of the Warrant with a properly executed form of Assignment attached hereto as Exhibit B (the “ Form of Assignment ”) at the principal office of the Company. Upon the proper surrender by the Registered Holder of the Warrant, the Company will issue and deliver to or upon the order of the Registered Holder a new Warrant or Warrants of like tenor as such Registered Holder may direct, calling in the aggregate on the face or faces thereof for the number of shares of Warrant Stock called for on the face of the Warrant so surrendered.

(b)          Each holder of this Warrant, by holding the same, consents and agrees that when this Warrant shall have been so endorsed, the person in possession of this Warrant may be treated by the Company, and all other persons dealing with this Warrant, as the absolute owner hereof and as the Registered Holder for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding; provided , however that until a transfer of this Warrant is properly made pursuant to the terms of this Warrant and duly registered on the books of the Company maintained pursuant to Section 3.3, the Company may treat the Registered Holder hereof as the owner for all purposes.

Section 3.3           Warrant Register . The Company or its agent will maintain a register containing the names and addresses of the Registered Holder of this Warrant, and will promptly update such register to reflect any transfers in compliance with the terms hereof. Until any transfer of this Warrant is reflected in the warrant register maintained pursuant to this Section 3.3, the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.

The Company hereby represents and warrants to the Registered Holder as follows:

Section 4.1           Authorization; Enforceability . The Company has full corporate power and authority to execute and deliver this Warrant, to perform its obligations hereunder and to consummate the transactions contemplated hereby, including the authorization, issuance and delivery of the Warrant Stock. The execution, delivery and performance by the Company of this Warrant and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company. This Warrant has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 4.2           Valid Issuance of Securities . The Warrant Stock to be issued hereunder, when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under this Warrant and applicable state and federal securities laws and liens or encumbrances created by or imposed by the Registered Holder.

Section 4.3           Government Consents . No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the issuance of the Warrant or the Warrant Stock by the Company.

Section 4.4            No Conflict . The execution and delivery of this Warrant and the performance of the Company’s obligations hereunder, including the issuance of the Warrant Stock, (a) will not result in any violation of the Company’s Articles of Incorporation or Bylaws or (b) be in conflict with or constitute, with or without the passage of time or giving of notice, either or both a material violation or default under any material agreement, instrument, judgment, order, writ, decree or contract or an event which results in the creation of any material lien, charge or encumbrance upon any assets of the Company or cause an acceleration of any obligation under any such material agreement, instrument, judgment, order, writ, decree or contract.

The Registered Holder hereby represents and warrants to the Company as follows:

Section 5.1           Certain Securities Laws Matters . By acceptance of this Warrant, the Registered Holder hereby confirms that this Warrant is acquired for investment only and not with a view to, or for sale in connection with, any distribution; that the Registered Holder has had such opportunity as such Registered Holder has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Registered Holder to evaluate the merits and risks of its investment in the Company; that the Registered Holder is able to bear the economic risk of holding the Warrant and/or the Warrant Stock (or any shares of stock or other securities at the time issuable upon exercise of the Warrant) for an indefinite period; that the Registered Holder understands that this Warrant and the Warrant Stock (or any shares of stock or other securities at the time issuable upon exercise of the Warrant) are not and will not be registered under the Securities Act except as set forth in in the Amended and Restated Registration Rights Agreement (as defined in Section 6.4 hereof) and will be “restricted securities” within the meaning of Rule 144 under the Securities Act; and that the Registered Holder is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

Section 6.1           Reservation and Listing of Securities . The Company hereby covenants that (a) at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of shares of Common Stock as may be issuable from time to time upon exercise hereof in full and, from time to time, will take all steps necessary to amend its Articles of Incorporation to provide sufficient reserves of shares of Common Stock, and (b) it will cause the Warrant Stock to be authorized to be listed on a securities exchange or Nasdaq if the Common Stock is listed on such exchange or Nasdaq.

Section 6.2           No Impairment . The Company will not, by amendment of its Articles of Incorporation or Bylaws, or through reorganization, consolidation, merger, dissolution, issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Registered Holder against impairment.

Section 6.3           Replacement Warrants . Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.

Section 6.4           Registration Rights . All shares of Warrant Stock are subject to that certain Amended and Restated Registration Rights Agreement dated as of the date hereof by and between the Company and the Registered Holder (as assignee of PDL BioPharma, Inc.) (the “ Amended and Restated Registration Rights Agreement ”), and the Registered Holder shall be deemed to be a “Holder” pursuant to the Amended and Restated Registration Rights Agreement and is entitled, subject to the terms and conditions of the Amended and Restated Registration Rights Agreement, to all registration rights granted to Holders thereunder.

Section 7.1           Record Dates . In case:

(a)          the Company shall set a record date for the holders of the Common Stock for the purpose of entitling or enabling them to receive any dividend or other distribution (excluding cash dividends paid or payable solely out of retained earnings), or to receive any right to subscribe for or purchase any shares of stock of any class or any other securities, or to receive any other right;

(b)          of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation or merger of the Company with or into another organization (other than a consolidation or merger in which the Company is the surviving entity), or any transfer of all or substantially all of the assets of the Company; or

(c)          of the voluntary or involuntary dissolution, liquidation or winding-up of the Company,

then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the record date for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is to take place, the time, if any is to be fixed, as of which the holders of record of capital stock of the Company (or such other securities at the time deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up) are to be determined, and the material terms and conditions of the impending transaction. In each such case, the notice shall be provided at least 20 business days prior to the record date or effective date for the event specified in such notice, in each case in accordance with the provisions of Section 7.2.

Section 7.2           Generally . Unless otherwise provided herein, any notice required or permitted by this Warrant shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or if sent by facsimile, upon written confirmation of receipt of facsimile, or five business days following deposit in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, or as subsequently modified by written notice.

Section 8.1           No Rights or Liabilities as a Stockholder . This Warrant shall not entitle the Registered Holder to any voting rights or other rights as a stockholder of the Company. In the absence of affirmative action by the Registered Holder to purchase Warrant Stock by exercise of this Warrant, no provisions of this Warrant, and no enumeration herein of the rights or privileges of the Registered Holder hereof, shall cause the Registered Holder to be or have any rights of a stockholder of the Company for any purpose.

Section 8.2           Survival of Representations and Warranties . Unless otherwise set forth in this Warrant, the warranties, representations and covenants of the Company and the Registered Holder contained in or made pursuant to this Warrant shall survive the execution and delivery of this Warrant.

Section 8.3           Amendment and Modification . This Warrant may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each of the parties in interest at the time of the amendment.

Section 8.4           Waiver . No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. Any agreement on the part of a party hereto to waive any right or power hereunder shall be valid only if set forth in a written instrument executed and delivered by or on behalf of such party. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.

Section 8.5           Assignment; Successors and Assigns . This Warrant and any of the rights, interests or obligations under this Warrant may be assigned, in whole or in part, by operation of law or otherwise, by the Registered Holder. This Warrant will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

Section 8.6           Interpretation . When a reference is made in this Warrant to a Section or Exhibit such reference shall be to a Section or Exhibit of this Warrant unless otherwise indicated. The headings contained in this Warrant or in any Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Warrant. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Warrant. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Warrant as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified.

Section 8.7           Governing Law . This Warrant and all disputes or controversies arising out of or relating to this Warrant or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of New York.

Section 8.8           Severability . Whenever possible, each provision or portion of any provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Warrant is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Warrant shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Section 8.9           Counterparts . This Warrant may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the date of issuance set forth above.

Signature Page to Second A&R Warrant to Purchase Common Stock of CareView Communications, Inc.

Signature Page to Second A&R Warrant to Purchase Common Stock of CareView Communications, Inc.

E XHIBIT A

NOTICE OF EXERCISE

SECOND AMENDED AND RESTATED 

WARRANT TO PURCHASE COMMON STOCK OF CAREVIEW COMMUNICATIONS, INC.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the Second Amended and Restated Warrant of CareView Communications, Inc. dated February 2, 2018 for, and to purchase thereunder, such number of shares of Warrant Stock (or such other securities or property for which this Warrant may then be exercised) indicated below of CareView Communications, Inc. as provided for therein, and (check the applicable box(es)):

X = the number of shares of Warrant Stock to be issued to the Registered Holder.
Y = the number of shares of Warrant Stock purchasable under the portion of the Warrant being exchanged (as adjusted to the date of such calculation).
A = the Fair Market Value of one share of Warrant Stock
B = Purchase Price (as adjusted to the date of such calculation)

Please issue such shares of Warrant Stock in the name of and pay any cash for any fractional share to (please print name, address and taxpayer i.d. number):

Notice of Exercise

Note: The above signature must correspond to the name as written upon the face of the Warrant in every particular, without alteration or any change whatsoever. If said number of Warrant Shares shall not be all of the Warrant Shares purchasable under the Warrant, a new Warrant is to be issued in the name of said undersigned for the balance remaining of the Warrant Shares purchasable thereunder.

Notice of Exercise

EXHIBIT B

ASSIGNMENT

SECOND AMENDED AND RESTATED

WARRANT TO PURCHASE COMMON STOCK OF CAREVIEW COMMUNICATIONS, INC.

For value received, the undersigned hereby sells, assigns and transfers unto ________________________ the within Warrant, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint _________________________ attorney, to transfer said Warrant on the books of CareView Communications, Inc. with respect to the number of shares of Warrant Stock set forth below, with full power of substitution in the premises:

And if said number of shares of Warrant Stock shall not be all the number of shares of Warrant Stock represented by the Warrant, a new Warrant is to be issued in the name of said undersigned for the balance remaining of the Warrants registered by said Warrant.

Note: The signature to the foregoing Assignment must correspond to the name as written upon the face of the Warrant in every particular, without alteration or any change whatsoever.

Form of Assignment

CareView Communications, Inc. 8-K

Exhibit 10.3

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is entered into as of February 2, 2018 by and between CareView Communications, Inc., a Nevada corporation (the “ Company ”) and PDL Investment Holdings, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company (the “ Original Holder ”).

RECITALS

A.          The Company, certain subsidiaries and the Original Holder have entered into a Credit Agreement dated as of June 26, 2015, as amended by that certain First Amendment to Credit Agreement, dated as of October 7, 2015, pursuant to which the Original Holder has agreed to lend to the Company up to Forty Million Dollars ($40,000,000.00) on the terms and conditions set forth therein (as amended, the “ Credit Agreement ”).

B.          The Company, certain subsidiaries and the Original Holder have entered into a Modification Agreement dated as of the date hereof (the “ Modification Agreement ”) in connection with the Original Holder’s agreement to modify on the terms set forth therein certain provisions of the Credit Agreement and certain other loan documents in respect of Covered Events (as defined in the Modification Agreement).

C.          Pursuant to the Credit Agreement and the Modification Agreement, the Company has issued to the Original Holder a Second Amended and Restated Warrant dated as of the date hereof (the “ Warrant ”), pursuant to which the Original Holder and its assignees have the right to acquire shares of common stock, par value $0.001 per share, of the Company.

D.          In connection with the execution and delivery of the Credit Agreement, the Modification Agreement and the Warrant and the consummation of the transactions contemplated thereby, the Company has agreed to grant the Original Holder certain registration rights as set forth below.

E.          This Amended and Restated Registration Rights Agreement amends and restates in its entirety that certain Registration Rights Agreement by and between the Company and the Original Holder, dated as of June 26, 2015.

AGREEMENT

In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows:

Article I
DEFINITIONS

Section 1.1      Certain Definitions . As used in this Agreement, capitalized terms not otherwise defined herein shall have the meanings ascribed to them below:

“ Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in The City of New York.

“ Common Stock ” means the common stock, par value $0.001 per share, of the Company, and any equity securities issued or issuable in exchange for or with respect to the Common Stock by way of a stock dividend, stock split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization or otherwise.

“ Common Stock Equivalent ” means all options, warrants and other securities convertible into, or exchangeable or exercisable for (at any time or upon the occurrence of any event or contingency and without regard to any vesting or other conditions to which such securities may be subject), Common Stock.

“ Designated Holder ” means the Original Holder or, if the Original Holder no longer holds more than 10% of the then outstanding Registrable Securities, Participating Holders holding more than 50% of the then outstanding Registrable Securities.

“ Effectiveness Period ” means the period from the date hereof until such date as the Holders no longer hold any Registrable Securities.

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

“ FINRA ” means the Financial Industry Regulatory Authority, Inc.

“ HealthCor Holder ” means those holders of the Company’s securities party to the HealthCor Registration Rights Agreement.

“ HealthCor Registration Rights Agreement ” means that certain registration rights agreement dated April 21, 2011, by and among the Company, HealthCor Partners Fund, L.P., HealthCor Hybrid Offshore Master Fund, L.P. and the other investors party thereto, as amended, supplemented or modified from time to time.

“ HealthCor Registrable Securities ” shall have the same meaning as “Registrable Securities” as defined in the HealthCor Registration Rights Agreement.

“ Holder ” or “ Holders ” means the Original Holder and any Person who shall acquire and hold Registrable Securities in accordance with the terms of this Agreement.

“ Issuer Free Writing Prospectus ” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating to an offer of Registrable Securities.

“ Participating Holders ” has the meaning set forth in Section 2.1(a)(ii).

“ Prospectus ” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 424(b) promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

“ Person ” means any individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or other entity or any governmental or regulatory body or other agency or authority or political subdivision thereof, including any successor, by merger or otherwise, of any of the foregoing.

“ Registrable Securities ” means the Warrant Shares, any other securities issued or issuable upon exercise of the Warrant and any other securities issued or issuable with respect to or in exchange for any such securities, provided such securities shall cease to be Registrable Securities when: (i) sold pursuant to an effective registration statement or sold pursuant to Rule 144 or any successor provision under the Securities Act; or (ii) such security becomes eligible for sale without restriction by the applicable Holder pursuant to and in compliance with Rule 144 or any successor provision under the Securities Act.

“ Registration Expenses ” means all fees and expenses incurred in connection with the Company’s performance of or compliance with the provisions of Article II, including: (i) all registration, listing, qualification and filing fees (including FINRA filing fees); (ii) fees and expenses of compliance with state securities or “blue sky” laws (including counsel fees in connection with the preparation of a blue sky and legal investment survey and FINRA filings); (iii) printing and copying expenses; (iv) messenger and delivery expenses; (v) expenses incurred in connection with any road show; (vi) fees and disbursements of counsel for the Company; (vii) with respect to each registration, the reasonable fees and disbursements of one counsel for the selling Holder(s) selected by the Designated Holder and reasonably satisfactory to the Company, in the case of a registration pursuant to Section 2.1, and selected by the underwriter and reasonably satisfactory to the Designated Holder, in the case of a registration pursuant to Section 2.2; (viii) fees and disbursements of independent public accountants, including the expenses of any audit or “cold comfort” letter, and fees and expenses of other persons, including special experts, retained by the Company; (ix) underwriter fees, excluding discounts and commissions, and any other expenses which are customarily borne by the issuer or seller of securities in a public equity offering; and (x) all internal expenses of the Company (including all salaries and expenses of officers and employees performing legal or accounting duties).

“ Registration Statement ” means any registration statement required to be filed under this Agreement, including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.

“ SEC ” means the Securities and Exchange Commission.

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

“ Warrant Shares ” means the shares of Common Stock issuable upon the exercise of the Warrant.

Article II
REGISTRATION RIGHTS

Section 2.1      Demand Registrations .

(a)           (i)        Subject to Section 2.1(c), at any time following the date hereof but prior to the expiration of the Effectiveness Period, the Designated Holder shall have the right to require the Company to file a registration statement under the Securities Act covering Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “ Demand Registration Requests ,” the registrations so requested are referred to as “ Demand Registrations ” and the Holders making such demand for registration are referred to as the “ Initiating Holders .” As promptly as practicable, but no later than 10 days after receipt of a Demand Registration Request, the Company shall give written notice (a “ Demand Exercise Notice ”) of such Demand Registration Request to all Holders of record of Registrable Securities other than the Initiating Holders.

(ii)        The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities that shall have made a written request to the Company within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “ Participating Holders ”). Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holders.

(b)           (i)       The Company shall as soon as practicable (and in the case of an offering to be made on a continuous basis under Rule 415, in no event later than thirty (30) days following the Demand Registration Request) cause to be prepared and filed with the SEC a Registration Statement providing for the resale of all Registrable Securities which Holders request to be registered. The Registration Statement shall be on Form S-3 if the Company is then eligible to register for resale the Registrable Securities on such form (a “ Short Form Registration ”). If the Company is not then eligible to register for resale the Registrable Securities on Form S-3, such registration shall be on Form S-1 or another appropriate form in accordance herewith (a “ Long Form Registration ”).

(ii)        The Company shall cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof (and in the case of an offering to be made on a continuous basis under Rule 415, in no event later than either of (A) 180 calendar days following the date of the Demand Registration Request or (B) five Business Days following notification by the staff of the SEC to the Company that there will be no review of the Registration Statement or, if comments have been given, that the staff will have no further comments with respect thereto). The Company shall keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by such Registration Statement have been sold.

(c)           The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:

(i)         the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;

(ii)        if the Company delivers to the Initiating Holders a certificate signed by the Company’s chief executive officer stating that, in the good faith judgment of the Company’s Board of Directors: (x) the registration could reasonably be expected to materially interfere with an acquisition, corporate reorganization or other material transaction then under consideration by the Company or (y) there is some other material development relating to the operations or condition (financial or other) of the Company that has not been disclosed to the general public and as to which it is in the Company’s best interests not to disclose (each of (x) and (y), a “ Valid Business Reason ”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 60 days (unless the Holders of at least a majority of the Registrable Securities consent in writing to a longer delay of up to an additional 30 days) in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “ Postponement Period ”); and the Company shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof;

(iii)       The Company shall not be obligated to effect more than three Long Form Registrations. There shall be no limitation on the number of Short Form Registrations under Section 2.1(a); and

(iv)       Notwithstanding any provision of this Agreement to the contrary, neither the Designated Holder nor any other Holder shall have any right under this Agreement to require that a distribution of Registrable Securities be effected by means of an underwriting.

If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 60 days, or, with the written consent of the Holders of at least a majority of the Registrable Securities, 90 days, after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.

(d)            A Holder may withdraw its Registrable Securities from a Demand Registration at any time. If all such Holders do so, the Company shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c), (ii) the withdrawal is based on the reasonable determination of the Holders who requested such registration that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Holders who requested such registration shall have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration.

(e)            A Demand Registration shall not be deemed to have been effected and shall not count as such (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least 180 days or such shorter period during which all Registrable Securities covered by such Registration Statement have been sold or withdrawn, (ii) if, after the registration statement with respect thereto has become effective, it becomes subject to any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason, or (iii) if it is withdrawn by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c).

Section 2.2      Piggyback Registrations .

(a)            If at any time during the Effectiveness Period, the Company shall determine to register any of its equity securities under the Securities Act (other than pursuant to (i) registrations on such form or similar form(s) solely for registration of securities in connection with an employee benefit plan or dividend reinvestment plan or (ii) a Demand Registration under Section 2.1) on a registration statement on Form S-1 or Form S-3 or an equivalent general registration form then in effect (but excluding any registration statement on Form S-4 or Form S-8), whether or not for its own account, the Company shall give prompt written notice of its intention to do so to each Holder of record of Registrable Securities. Upon the written request of any such Holder, made within 15 days following the receipt of any such written notice (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof), the Company, subject to Sections 2.2(b), 2.3 and 2.6, shall use commercially reasonable efforts to cause all such Registrable Securities to be included in the registration statement with the securities that the Company at the time proposes to register to permit the sale or other disposition by the Holders in accordance with the intended method of distribution thereof of the Registrable Securities to be so registered. No registration of Registrable Securities effected under this Section 2.2(a) shall relieve the Company of its obligations to effect Demand Registrations under Section 2.1.

(b)            If, at any time after giving written notice of its determination to register any equity securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such equity securities, the Company will give written notice of such determination to each Holder of record of Registrable Securities and (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such abandoned registration, without prejudice, however, to the rights of Holders under Section 2.1 and (ii) in the case of a determination to delay such registration of its equity securities, shall be permitted to delay the registration of such Registrable Securities for the same period as the delay in registering such other equity securities.

(c)            Any Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any registration statement pursuant to this Section 2.2 by giving written notice to the Company of its request to withdraw. Such request must be made in writing prior to the earlier of (i) the use by the Company or any underwriters of any preliminary prospectus or preliminary prospectus supplement that is part of such registration statement, (ii) the execution of the underwriting agreement with respect to such registration or (iii) the execution of the custody agreement with respect to such registration. Such withdrawal shall be irrevocable and, after making such withdrawal, a Holder shall no longer have any right to include Registrable Securities in the registration as to which such withdrawal was made.

Section 2.3      Priority in Registrations .

(a)            If any registration pursuant to Section 2.2 involves an underwritten offering that is proposed by the Company and the lead managing underwriter of such offering (the “ Manager ”) shall advise the Company that, in its view, the aggregate number of securities requested to be included in such registration by the Company, the Holders and the holders of securities of the Company, including the HealthCor Holders, that have the right to require such registration pursuant to an agreement entered into by the Company (“ Additional Registration Rights ”) exceeds the number (the “ Section 2.3(a) Sale Number ”) that can be sold in an orderly manner in such registration within a price range acceptable to the Company (such difference, the “ Aggregate Underwriter Cutback ”), the Company shall include in such registration: (i) all Common Stock that the Company proposes to register for its own account less such number of shares equal to 50% of the Aggregate Underwriter Cutback (such number of shares to be registered, the “ Company Allotment ”), and (ii) the aggregate of all Registrable Securities and all HealthCor Registrable Securities for which the Holders and the HealthCor Holders, respectively, request registration (such number of securities, the “ Aggregate Registration Request ”) less such number of securities equal to 50% of the Aggregate Underwriter Cutback (such number of securities to be registered, the “ Registrable Securities Allotment ”). To the extent that the Aggregate Registration Request exceeds the Registrable Securities Allotment, the securities to be included in the Registrable Securities Allotment shall be allocated on a pro rata basis among (i) all Holders requesting that Registrable Securities be included in such registration pursuant to the exercise of piggyback rights pursuant to Section 2.2 of this Agreement and (ii) all HealthCor Holders requesting that HealthCor Registrable Securities be included in such registration, based on the number of (x) Registrable Securities that each such Holder is then requesting for inclusion and (y) HealthCor Registrable Securities that each such HealthCor Holder is then requesting for inclusion, which, together with the Company Allotment, shall not exceed the Section 2.3(a) Sale Number.

(b)            If any registration pursuant to Section 2.2 involves an underwritten offering that was proposed by the HealthCor Holders or other holders of Additional Registration Rights and the Manager shall advise the Company that, in its view, the number of securities requested to be included in such registration exceeds the number (the “ Section 2.3(b) Sale Number ”) that can be sold in an orderly manner in such registration within a price range acceptable to the Company, the securities to be included in such registration shall be allocated by the Company first , on a pro rata basis among (i) all Holders requesting that Registrable Securities be included in such registration pursuant to the exercise of piggyback rights pursuant to Section 2.2 of this Agreement and (ii) all HealthCor Holders requesting the inclusion in such registration of HealthCor Registrable Securities, based on the number of (x) Registrable Securities that each such Holder is then requesting for inclusion and (y) HealthCor Registrable Securities that each such HealthCor Holder is requesting for inclusion, which shall not exceed the Section 2.3(b) Sale Number, and second , to the other holders of Additional Registration Rights (if any).

Section 2.4        Registration Procedures . Whenever the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement, the Company as expeditiously as possible:

(a)            shall prepare and file with the SEC the requisite Registration Statement, which shall comply as to form in all material respects with the requirements of the applicable form and shall include all financial statements required by the SEC to be filed therewith, and use commercially reasonable efforts to cause such Registration Statement to become and remain effective ( provided , however , that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, or comparable statements under securities or blue sky laws of any jurisdiction, or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Designated Holder and reasonably satisfactory to the Company, in the case of a registration pursuant to Section 2.1, and selected by the lead managing underwriter, if any, and reasonably satisfactory to the Designated Holder, in the case of a registration pursuant to Section 2.2) and the lead managing underwriter, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and the Company shall not file any Registration Statement or amendment thereto, any Prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Designated Holder covered by such Registration Statement or the underwriters, if any, shall reasonably object);

(b)          shall prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for such period as any seller of Registrable Securities pursuant to such Registration Statement shall request and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement;

(c)           shall furnish, without charge, to each seller of such Registrable Securities and each underwriter, if any, of the securities covered by such Registration Statement such number of copies of such Registration Statement, each amendment thereto, the Prospectus included in such Registration Statement, each preliminary Prospectus and each Issuer Free Writing Prospectus utilized in connection therewith, all in conformity with the requirements of the Securities Act, and such other documents as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller, and shall consent to the use in accordance with all applicable law of each such Registration Statement, each amendment thereto, each such Prospectus, preliminary Prospectus or Issuer Free Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement or Prospectus;

(d)           shall use commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under such other securities or “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, reasonably shall request, and do any and all other acts and things that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions, except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 2.4(d), it would not be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;

(e)           shall promptly notify each Holder selling Registrable Securities covered by such Registration Statement and each managing underwriter, if any:

(i)        when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Issuer Free Writing Prospectus has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;

(ii)       of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information;

(iii)      of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;

(iv)      of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose;

(v)       of the existence of any fact of which the Company becomes aware which results in the Registration Statement, the prospectus related thereto, any document incorporated therein by reference, any Issuer Free Writing Prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and

(vi)      if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), the Company, subject to the provisions of Section 2.1(c), promptly shall prepare and file with the SEC, and furnish to each seller and each underwriter, if any, a reasonable number of copies of, a Prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;

(f)           shall comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the Registration Statement (and in any event within 90 days after the end of such 12 month period described hereafter), an earnings statement, which need not be audited, covering the period of at least 12 consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(g)          shall cause all Registrable Securities covered by such Registration Statement to be authorized to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such exchange;

(h)          shall provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;

(i)           shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Designated Holder shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities that are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);

(j)           in connection with an underwritten offering, shall obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;

(k)          shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement;

(l)           shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the Registration Statement;

(m)         shall make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any underwritten offering;

(n)          shall promptly prior to the filing of any document that is to be incorporated by reference into the Registration Statement or the Prospectus, and prior to the filing of any Issuer Free Writing Prospectus, provide copies of such document to counsel for the selling holders of Registrable Securities and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the selling holders prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;

(o)          shall cooperate with the sellers of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the sellers of Registrable Securities at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;

(p)          shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;

(q)          shall not take any direct or indirect action prohibited by Regulation M under the Exchange Act; provided , however , that to the extent that any prohibition is applicable to the Company, the Company will take such action as is necessary to make any such prohibition inapplicable;

(r)           shall cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and

(s)          shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, 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.

If the Company files any shelf Registration Statement for the benefit of the holders of any of its securities other than the Holders, the Company shall include in such Registration Statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders, in order to ensure that the Holders may be added to such shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.

The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information in writing regarding such seller and the distribution of such Registrable Securities as the Company from time to time reasonably may request; provided , that such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration.

Each seller of Registrable Securities agrees that upon receipt of any notice from the Company under Section 2.4(e)(v), such seller will discontinue such seller’s disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such seller’s receipt of the copies of the supplemented or amended Prospectus. In the event the Company shall give any such notice, the applicable period set forth in Section 2.4(b) shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus.

If any such Registration Statement or comparable statement under “blue sky” laws refers to any Holder by name or otherwise as the Holder of any securities of the Company, such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such Holder and the Company, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to such Holder by name or otherwise is not in the judgment of the Company, as advised by counsel, required by the Securities Act or any similar federal statute or any state “blue sky” or securities law then in force, the deletion of the reference to such Holder.

Section 2.5         Registration Expenses .

(a)            The Company shall pay all Registration Expenses (i) with respect to any Demand Registration whether or not it becomes effective or remains effective for the period contemplated by Section 2.4(b) and (ii) with respect to any registration effected under Section 2.2.

(b)            Notwithstanding the foregoing, (i) the provisions of this Section 2.5 shall be deemed amended to the extent necessary to cause these expense provisions to comply with “blue sky” laws of each state in which the offering is made, (ii) in connection with any registration hereunder, each Holder of Registrable Securities being registered shall pay all underwriting discounts and commissions and any transfer taxes, if any, attributable to the sale of such Registrable Securities, pro rata with respect to payments of discounts and commissions in accordance with the number of Registrable Securities sold in the offering by such Holder and (iii) the Company shall, in the case of all registrations under this Article II, be responsible for all its internal expenses.

Section 2.6      Underwritten Offerings .

(a)            In the case of a registration pursuant to Section 2.2, if the Company shall have determined to enter into an underwriting agreement in connection therewith, any Registrable Securities to be included in such registration shall be subject to such underwriting agreement. Any Holder participating in such registration may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holder and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such Holder. No Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, its ownership of and title to the Registrable Securities and its intended method of distribution; and any liability of such Holder to any underwriter or other Person under such underwriting agreement shall be limited to liability arising from breach of its representations and warranties and shall be limited to an amount equal to the proceeds (net of expenses and underwriting discounts and commissions) that it derives from such registration.

(b)            In the case of a registration under Section 2.2, if the Company has determined to enter into an underwriting agreement in connection therewith, all securities to be included in such registration shall be subject to an underwriting agreement and no Person may participate in such registration unless such Person agrees to sell such Person’s securities on the basis provided therein and, subject to the provisions of this Section 2.6, completes and executes all reasonable questionnaires, and other documents, including custody agreements and powers of attorney, that must be executed in connection therewith, and provides such other information to the Company or the underwriter as may be necessary to register such Person’s securities.

Section 2.7      Holdback Agreements .

(a)            Each seller of Registrable Securities agrees, to the extent requested in writing by a managing underwriter, if any, of any registration effected pursuant to Section 2.2, not to (i) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for any shares of Common Stock (whether such shares or any such securities are then owned by the Holder or are thereafter acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, other than as part of such underwritten public offering during the time period reasonably requested by the managing underwriter, not to exceed 90 days plus such additional period of time as may be required to comply with FINRA Rule 2711 or any similar or successor rules thereto, as such underwriter shall specify reasonably and in good faith.

(b)            The Company agrees that, if it shall previously have received a request for registration pursuant to Section  2.2, and if such previous registration shall not have been withdrawn or abandoned, it shall not sell, transfer or otherwise dispose of any Common Stock, or any other equity security of the Company or any security convertible into or exchangeable or exercisable for any equity security of the Company (other than as part of such underwritten public offering, a registration on Form S-4 or Form S-8 or any successor or similar form which is then in effect or upon the conversion, exchange or exercise of any then outstanding Common Stock Equivalent), until a period of 180 days shall have elapsed from the effective date of such previous registration; and the Company shall so provide in any registration rights agreements hereafter entered into with respect to any of its securities.

Section 2.8      No Required Sale . Nothing in this Agreement shall be deemed to create an independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any effective registration statement.

Section 2.9      Indemnification .

(a)            In the event of any registration of any securities of the Company under the Securities Act pursuant to this Article II, the Company will, and hereby agrees to, indemnify and hold harmless, to the fullest extent permitted by law, each Holder of Registrable Securities, its directors, officers, fiduciaries, employees, agents, affiliates, consultants, representatives, general and limited partners, stockholders, successors, assigns (and the directors, officers, employees and stockholders thereof), and each other Person, if any, who controls such Holder within the meaning of the Securities Act, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “ Losses ”), insofar as such Losses arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such securities were registered under the Securities Act or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Issuer Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Loss as such expenses are incurred; provided , however , that the Company shall not be liable (i) to any such indemnified party in any such case to the extent such Loss arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such Registration Statement or amendment thereof or supplement thereto or in any such prospectus or any preliminary, final or summary Prospectus or Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein, (ii) for any failure of a Holder to deliver a Prospectus, to the extent that such Holder was required to do so under applicable securities laws, or (iii) for the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Holder.

(b)            Each Holder of Registrable Securities that are included in the securities as to which any registration under Section 2.1 or 2.2 is being effected shall, severally and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this Section 2.9) to the extent permitted by law the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act and all other prospective sellers and their respective directors, officers, fiduciaries, employees, agents, affiliates, consultants, representatives, general and limited partners, stockholders, successors, assigns and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or its representatives by or on behalf of such Holder specifically for use therein and reimburse such indemnified party for any legal or other expenses reasonably incurred in connection with investigating or defending any such Loss as such expenses are incurred; provided , however , that the aggregate amount that any such Holder shall be required to pay pursuant to this Section 2.9(b) and Sections 2.9(c), (e) and (f) shall in no case be greater than the amount of the net proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such claim, except in the case of fraud or willful misconduct by such Holder. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Holder.

(c)            Any Person entitled to indemnification under this Agreement promptly shall notify the indemnifying party in writing of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 2.9, but the failure of any such Person to provide such notice shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 2.9, except to the extent the indemnifying party is materially prejudiced thereby and shall not relieve the indemnifying party from any liability that it may have to any such Person otherwise than under this Article II. In case any action or proceeding is brought against an indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, unless in the reasonable opinion of outside counsel to the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, to assume the defense thereof jointly with any other indemnifying party similarly notified, to the extent that it chooses, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party that it so chooses, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided , however , that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within 20 days after receiving notice from such indemnified party, (ii) if such indemnified party who is a defendant in any action or proceeding that is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party that are not available to the indemnifying party or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction, except to the extent any indemnified party or parties reasonably shall have concluded that there may be legal defenses available to such party or parties that are not available to the other indemnified parties or to the extent representation of all indemnified parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct) and the indemnifying party shall be liable for any expenses therefor. Without the written consent of the indemnified party, which consent shall not be unreasonably withheld, no indemnifying party shall effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder, whether or not the indemnified party is an actual or potential party to such action or claim, unless such settlement, compromise or judgment (A) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

(d)            If for any reason the foregoing indemnity is unavailable or is insufficient to hold harmless an indemnified party under Section 2.9(a), (b) or (c), then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of any Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such offering of securities. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 2.9(d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 2.9(d). The amount paid or payable in respect of any Loss shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Loss. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 2.9(d) to the contrary, no indemnifying party other than the Company shall be required pursuant to this Section 2.9(d) to contribute any amount in excess of the net proceeds received by such indemnifying party from the sale of Registrable Securities in the offering to which the losses, claims, damages or liabilities of the indemnified parties relate, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 2.9(b) and (c).

(e)            The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.

(f)             The indemnification and contribution required by this Section 2.9 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.

Article III
GENERAL

Section 3.1      Rule 144 . The Company covenants that (a) it will timely file the reports required to be filed by it under the Securities Act or the Exchange Act or, if it is not required to file such reports, upon the request of any Holder it shall make publicly available other information so long as necessary to permit sales of such Registrable Securities in compliance with Rule 144 under the Securities Act and (b) it will take such further action as any Holder of Registrable Securities reasonably may request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements.

Section 3.2      Nominees for Beneficial Owners . If Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its option, be treated as the Holder of such Registrable Securities for purposes of any request or other action by any Holder or Holders of Registrable Securities pursuant to this Agreement or any determination of any number or percentage of shares constituting Registrable Securities held by any Holder or Holders of Registrable Securities contemplated by this Agreement; provided , that the Company shall have received assurances reasonably satisfactory to it of such beneficial ownership.

Section 3.3      No Inconsistent Agreements . The rights granted to the Holders of Registrable Securities hereunder do not in any way conflict with and are not inconsistent with any other agreements to which the Company is a party or by which it is bound.

Article IV
MISCELLANEOUS

Section 4.1      Amendment; Waiver and Termination .

(a)            Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by the Company and Holders of a majority of the then outstanding Registrable Securities or, in the case of a waiver, by the party or parties against whom the waiver is to be effective, in an instrument specifically designated as an amendment or waiver hereto; provided , however , that waiver by the Holders shall require the consent of Holders of a majority of the then outstanding Registrable Securities.

(b)            No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.

(c)            The rights to request registration or inclusion of Registrable Securities in any registration pursuant to the terms of this Agreement shall terminate upon the expiration of the Effectiveness Period.

Section 4.2      Notices . All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt sent by the recipient via facsimile, e-mail or otherwise, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

(i)         if to any Holder other than the Original Holder, to its last known address appearing on the books of the Company maintained for such purpose, and if to the Original Holder, to:

932 Southwood Boulevard
Incline Village, NV 89451
Attention: General Counsel
Telephone: (775) 832-8500
Facsimile: (775) 832-8501

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

Karen E. Bertero
Gibson Dunn & Crutcher LLP
333 South Grand Avenue, Los Angeles, CA 90071-3197
Telephone: (213) 229-7360
Facsimile: (213) 229-7888
Email: KBertero@gibsondunn.com

(ii)         if to the Company, to:

405 State Highway 121
Suite B-240
Lewisville, Texas 75067
Attention: General Counsel
Telephone: (972) 943-6050

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

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center, Boston, MA 02111
Attention: Meryl Epstein
Telephone: (617) 348-1635
Facsimile: (617) 542-2241
E-mail: MJEpstein@mintz.com

or such other address as the Company or the Original Holder shall have specified to the other party in writing in accordance with this Section 4.2.

Section 4.3      Interpretation . When a reference is made in this Agreement to a Section or Article, such reference shall be to a Section or Article of this Agreement unless otherwise indicated. The headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to the Agreement as a whole and not to any particular provision in this Agreement. The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified.

Section 4.4      Entire Agreement . This Agreement, the Warrant, the Credit Agreement and the Modification Agreement constitute the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties with respect to the subject matter hereof and thereof.

Section 4.5      No Third-Party Beneficiaries . Except as provided in Section 2.9, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.

Section 4.6      Governing Law . This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of New York.

Section 4.7      Submission to Jurisdiction . Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by the other party or its successors or assigns shall be brought and determined in any New York State or federal court sitting in the Borough of Manhattan in The City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in New York, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in New York as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

Section 4.8      Assignment; Successors . This Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns. If any Person shall acquire Registrable Securities from any Holder in any manner, whether by operation of law or otherwise, such Person shall promptly notify the Company and such Registrable Securities acquired from such Holder shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement. Any such successor or assign shall agree in writing to acquire and hold the Registrable Securities acquired from such Holder subject to all of the terms hereof. If any Holder shall acquire additional Registrable Securities, such Registrable Securities shall be subject to all of the terms, and entitled to all of the benefits, of this Agreement.

Section 4.9         Enforcement . The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any New York State or federal court sitting in the Borough of Manhattan in The City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief.

Section 4.10       Severability . Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Section 4.11      Waiver of Jury Trial . EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 4.12       Counterparts . This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

Section 4.13       Facsimile or .pdf Signature . This Agreement may be executed by facsimile or .pdf signature and a facsimile or .pdf signature shall constitute an original for all purposes

Section 4.14       Time of Essence . Time is of the essence with regard to all dates and time periods set forth or referred to in this Agreement.

Section 4.15      No Presumption Against Drafting Party . Each of the parties hereto acknowledges that it has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

Signature Page to Amended and Restated Registration Rights Agreement  

Signature Page to Amended and Restated Registration Rights Agreement

CareView Communications, Inc. 8-K

Exhibit 10.4

CONSENT AND AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT AND SUBORDINATION AND INTERCREDITOR AGREEMENT

CONSENT AND AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT AND SUBORDINATION AND INTERCREDITOR AGREEMENT (this “ Consent and Amendment ”), dated as of February 2, 2018, among CAREVIEW COMMUNICATIONS, INC., a Nevada corporation (“ Holdings ”), CAREVIEW COMMUNICATIONS, INC., a Texas corporation and a wholly-owned subsidiary of Holdings (the “ Borrower ”), PDL INVESTMENT HOLDINGS, LLC, a Delaware limited liability company (as assignee of PDL BioPharma, Inc.), in its capacity as lender under the Credit Agreement defined below (in such capacity, the “ Lender ”) and in its capacity as agent (in such capacity, the “ Agent ”) under the Credit Agreement defined below, and EACH OF THE NOTE INVESTORS SIGNATORY TO THAT CERTAIN NOTE AND WARRANT PURCHASE AGREEMENT DEFINED BELOW (the “ Note Investors ”).

W I T N E S S E T H

WHEREAS Holdings, the Borrower, the Lender and the Agent have entered into that certain Credit Agreement dated as of June 26, 2015 (as amended, the “ Credit Agreement ”) pursuant to which the Lender made a term loan to the Borrower in the original aggregate principal amount of $20,000,000;

WHEREAS Holdings and the Note Investors have entered into that certain Note and Warrant Purchase Agreement dated as of April 21, 2011 (as amended, the “ NWPA ”) pursuant to which Holdings issued to the Note Investors senior secured convertible notes (the “ NWPA Notes ”) and warrants to purchase Holdings’ common stock (the “ NWPA Warrants ”);

WHEREAS the Agent and the Note Investors have entered into that certain Subordination and Intercreditor Agreement dated as of June 26, 2015 (the “ Intercreditor Agreement ”) pursuant to which the Note Investors agreed to the payment and lien subordination of obligations owed to the Note Investors under the NWPA to obligations owed to the Lender and the Agent under the Credit Agreement;

WHEREAS, the Borrower has requested that the Lender agree to modify certain provisions of the Credit Agreement and the other First Lien Loan Documents to prevent Events of Default from occurring thereunder during a defined “Modification Period” on the terms set forth in the Modification Agreement dated as of the date hereof among Holdings, the Borrower, the Subsidiary Guarantor, the Lender and the Agent (the “ Modification Agreement ”); and

WHEREAS in order to induce the Lender to enter into the Modification Agreement, and in order to further the purposes of the Modification Agreement and the transactions contemplated thereby, the Note Investors are willing to agree to the consents in respect of the terms of the NWPA and amendment to the Intercreditor Agreement as set forth herein.

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

Article I.
DEFINITIONS

1.1           Definitions . Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals, have the meanings provided in the Intercreditor Agreement.

Article II.
AMENDMENT TO INTERCREDITOR AGREEMENT

2.1          Amendment to Section 5.1(b) . Subject to Section 4.1 of this Consent and Amendment, Section 5.1(b) of the Intercreditor Agreement is hereby amended and restated in its entirety as follows:

“(b)       If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral (collectively, a “ Disposition ”) permitted under the terms of both the First Lien Loan Documents and the Second Lien Loan Documents (other than in connection with the exercise of PDL’s remedies in respect of the Collateral provided for by the First Lien Loan Documents), PDL releases for itself or on behalf of any of the First Lien Claimholders any of its Liens on any part of the Collateral or releases any Grantor from its guaranty of the First Lien Obligations in connection with the sale of the stock, or substantially all the assets, of the Borrower or the applicable Grantor other than (A) in connection with the Discharge of First Lien Obligations and (B) after the occurrence and during the continuance of any Event of Default under the Note Purchase Agreement, then the Liens, if any, of the Second Lien Claimholders on such Collateral and the obligations of such Grantor under its guaranty of the Second Lien Obligations shall be automatically, unconditionally and simultaneously released; provided that the net proceeds from any Disposition are applied to repay Obligations under the Credit Agreement to the extent required thereby. The foregoing notwithstanding, in the event that PDL consents to any Disposition of all or any portion of the hospital assets of any Grantor that is Collateral (including a sale of any Grantor all or substantially all of the assets of which are hospital assets) (but other than in connection with the exercise of PDL’s remedies in respect of the Collateral provided for by the First Lien Loan Documents) (a “ Hospital Disposition ”), and PDL releases for itself or on behalf of any of the First Lien Claimholders any of its Liens on any part of such hospital assets that are Collateral or releases any Grantor from its guaranty of the First Lien Obligations in connection with a Hospital Disposition, then the Liens, if any, of the Second Lien Claimholders on such hospital assets and the obligations of any such Grantor under its guaranty of the Second Lien Obligations shall be automatically, unconditionally and simultaneously released; provided that the net proceeds from any Hospital Disposition are applied to repay first , Obligations under the Credit Agreement until paid in full and thereafter , the Second Lien Obligations. The Second Lien Claimholders shall promptly execute and deliver to PDL, the Borrower or the applicable Grantor such termination statements, releases and other documents as PDL, the Borrower or the applicable Grantor may reasonably request to effectively confirm any such release contemplated herein.”

Article III.
CONSENTS TO NOTE AND WARRANT PURCHASE AGREEMENT

3.1           Consent under Sections 5.4 and 6.12 . Subject to Section 4.1 of this Consent and Amendment, the Note Investors agree that the right of each Note Investor to purchase New Securities pursuant to Section 5.4 of the NWPA and the requirement that the Note Investors provide prior written consent prior to the issuance of capital stock or securities convertible into capital stock shall not apply to any issuance of capital stock or indebtedness pursuant to Section 5(a) and 5(d) of the Modification Agreement.

3.2           Consent under Section 6.4 . For the avoidance of doubt, and subject to Section 4.1 of this Consent and Amendment, the Note Investors agree that any cash payment required to be made to PDL pursuant to Section 5(f)(ii) of the Modification Agreement shall be “First Lien Obligations”, and no payment of First Lien Obligations (including First Lien Obligations paid pursuant to Section 5(f)(ii) of the Modification Agreement) shall result in a violation of Section 6.4 of the NWPA.

Article IV.
condition

4.1           Condition Precedent . The effectiveness of this Consent and Amendment shall be conditioned upon the execution and delivery of the Modification Agreement among Holdings, the Borrower, the Subsidiary Guarantor, Agent and Lender, and delivery of a copy thereof to the Second Lien Agent, in each case on or prior to February 2, 2018.

Article V.
MISCELLANEOUS

5.1           Representation and Warranty regarding Note Investors . Holdings and the Borrower hereby represent and warrant to the Lender that the Note Investors executing this Consent and Amendment constitute all Note Investors who as of the date hereof hold shares of common stock of Holdings issued or issuable upon conversion of the NWPA Notes and the exercise of the NWPA Warrants. Holdings and the Borrower agree that any inaccuracy in the foregoing representation and warranty shall constitute an automatic Event of Default under the Credit Agreement.

5.2           Reaffirmation of Intercreditor Agreement . Each of Agent and the Note Investors party hereto hereby acknowledges and reaffirms its respective obligations, duties and covenants under the Intercreditor Agreement, as modified hereby.

5.3           Counterparts . This Consent and Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of an executed signature page of this Consent and Amendment by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

5.4           Construction; Captions . Each party hereto hereby acknowledges that all parties hereto participated equally in the negotiation and drafting of this Consent and Amendment and that, accordingly, no court construing this Consent and Amendment shall construe it more stringently against one party than against the other. The captions and headings of this Consent and Amendment are for convenience of reference only and shall not affect the interpretation of this Consent and Amendment. This Consent and Amendment shall, unless otherwise expressly indicated herein, be construed, administered and applied in accordance with the terms and provisions of the Intercreditor Agreement.

5.5           Successors and Assigns . This Consent and Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (as permitted under the Credit Agreement and the Intercreditor Agreement).

5.6           Governing Law . This CONSENT AND Amendment, the rights and obligations of the parties hereto, and any claims or disputes relating thereto shall be governed by and construed in accordance with THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

5.7           Severability . The illegality or unenforceability of any provision of this Consent and Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Consent and Amendment or any instrument or agreement required hereunder.

[ Signature page follows ]

IN WITNESS WHEREOF, each of the parties hereto has caused this Consent and Amendment to be duly executed and delivered as of the date first above written.

[ Signature Page to Consent and Amendment ]

[ Signature Page to Consent and Amendment ]

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CareView Communications, Inc. 8-K

Exhibit 10.5

CONSENT TO CREDIT AGREEMENT

CONSENT TO CREDIT AGREEMENT (this “ Consent ”), dated as of February 2, 2018, is entered into by and among CAREVIEW COMMUNICATIONS, INC., a Nevada corporation (“ Holdings ”), CAREVIEW COMMUNICATIONS, INC., a Texas corporation and a wholly-owned subsidiary of Holdings (the “ Borrower ”), and PDL INVESTMENT HOLDINGS, LLC (as assignee of PDL BioPharma, Inc.) (“ PDL ”), a Delaware corporation, in its capacity as lender (in such capacity, the “ Lender ”) and in its capacity as agent (in such capacity, the “ Agent ”).

W I T N E S S E T H

WHEREAS the Borrower, the Lender and the Agent have entered into that certain Credit Agreement dated as of June 26, 2015 (as amended, the “ Credit Agreement ”);

WHEREAS the Borrower has requested that the Lender consent to (i) the purchase by Holdings of all outstanding Capital Stock in each of the CareView Hillcrest JV and the CareView Saline JV not owned by Holdings on the Closing Date as described in Holdings’ Form 8-K filed with the Securities and Exchange Commission on February 2, 2017 (the “ JV Stock Purchase 8-K ”; and such purchase, the “ JV Capital Stock Purchase ”) and (ii) the issuance of a promissory note to Rockwell Holdings I, LLC (the “ JV Seller ”) in the aggregate principal amount of $1,113,785.84 as consideration for the JV Capital Stock Purchase in the form filed with the JV Stock Purchase 8-K (the “ JV Promissory Note ”), as set forth herein;

WHEREAS the Lender is willing to consent to each of the JV Capital Stock Purchase and the JV Promissory Note upon the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

Article I.
DEFINITIONS

1.1            Definitions . Unless otherwise defined herein or the context otherwise requires, terms used in this Consent, including its preamble and recitals, have the meanings provided in the Credit Agreement.

Article II.
CONSENT AND COVENANT

2.1            Consents . Upon satisfaction of the conditions set forth in Article III hereof, and notwithstanding Sections 7.1 and 7.10 of the Credit Agreement, the Lender and the Agent hereby consent each of the JV Capital Stock Purchase and the JV Promissory Note.

2.2            Covenant. Concurrently with the execution of the definitive modification agreement (the “ Modification Agreement ”) contemplated by the Binding Forbearance Term Sheet entered into as of December 28, 2017 (the “ Modification Term Sheet ”), Holdings shall deliver to the Agent and the Lender an amendment to the JV Promissory Note in form and substance satisfactory to PDL in its sole discretion providing that the JV Seller shall agree to defer $50,000 of each $100,000 quarterly amortization payment due under the JV Promissory Note from January 1, 2018 through the termination of the “Modification Period” (as defined in the Modification Term Sheet or the Modification Agreement, whichever is then in effect).

Article III.
CONDITIONS TO EFFECTIVENESS

This Consent shall be and become effective on the date (the “ Effective Date ”) all of the conditions set forth in this Article III shall have been satisfied (or waived by the Agent and the Lender in its sole discretion in accordance with Section 10.1 of the Credit Agreement):

3.1            Counterparts . The Agent shall have received counterparts to this Consent duly executed by each of Holdings, the Borrower, the Lender and the Agent.

3.2            Representations and Warranties . After giving effect to this Consent, each representation and warranty by each Loan Party that is a party hereto contained herein or in any other Loan Document to which such Loan Party is a party, shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the Effective Date (or as of a specific earlier date if such representation or warranty expressly relates to an earlier date).

3.3            Event of Default . After giving effect to this Consent, no Default or Event of Default shall have occurred and be continuing, and no Default or Event of Default shall result from the execution and delivery of this Consent and the consummation of the transactions contemplated herein. 

Article IV.
REPRESENTATIONS AND WARRANTIES

4.1            Representations and Warranties of Loan Parties . In order to induce the Agent and the Lender to enter into this Consent, each of Holdings and the Borrower hereby represents and warrants to the Agent and the Lender that as of the date hereof:

(a)            Organization . Holdings is a corporation validly existing and in good standing under the laws of the State of Nevada; the Borrower is a corporation validly existing and in good standing under the laws of the State of Texas; and each other Loan Party and each of its Subsidiaries is duly organized, validly existing and in good standing (as applicable) under the laws of the jurisdiction of its incorporation or organization. Each Loan Party has all power and authority and all material governmental approvals required for the ownership and operation of its properties and the conduct of its business as now conducted and as proposed to be conducted and is qualified to do business, and is in good standing (as applicable), in every jurisdiction where, because of the nature of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect.

(b)            Due Authorization . The execution, delivery and performance of this Consent, and the performance of its obligations under the Credit Agreement as modified hereby, have been duly authorized by all necessary action on the part of each Loan Party that is a party hereto.

(c)            No Conflict . The execution, delivery and performance of this Consent by each Loan Party that is a party hereto and the consummation of the transactions contemplated hereby do not and will not (a) require any consent or approval of, or registration or filing with or any other action by, any Governmental Authority (other than any consent or approval which has been obtained and is in full force and effect), (b) conflict with (i) any provision of material Applicable Law, (ii) the charter, by-laws, limited liability company agreement, partnership agreement or other organizational documents of any Loan Party or (iii) any material agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon any Loan Party or any of their respective properties or (c) require, or result in, the creation or imposition of any Lien on any asset of Holdings, the Borrower or any other Loan Party (other than Liens in favor of the Agent created pursuant to the Collateral Documents).

(d)            Incorporation of Representations and Warranties from Loan Documents . After giving effect to this Consent, each representation and warranty by each Loan Party that is a party hereto contained in the Credit Agreement or in any other Loan Document to which such Loan Party is a party is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof (or as of a specific earlier date if such representation or warranty expressly relates to an earlier date).

(e)            No Default . After giving effect to this Consent, no Default or Event of Default has occurred and is continuing, and no Default or Event of Default will result from the execution and delivery of this Consent and the consummation of the transactions contemplated herein.

(f)            Validity; Binding Nature . This Consent has been duly executed by each Loan Party that is a party hereto, and each of (i) this Consent and (ii) the Credit Agreement as modified hereby is the legal, valid and binding obligation of each Loan Party that is a party hereto, enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.

Article V.
MISCELLANEOUS

5.1            Loan Document . This Consent is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Credit Agreement.

5.2            Effect of Consent . Except as expressly set forth herein, this Consent shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect, the rights and remedies of the parties to the Credit Agreement and shall not alter, modify, amend or in any way affect any of the terms or conditions contained therein, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to any future consent with respect to, or waiver, amendment, modification or other change of, any of the terms or conditions contained in the Credit Agreement in similar or different circumstances. Except as expressly stated herein, the Agent and the Lender reserve all rights, privileges and remedies under the Loan Documents. All references in the Credit Agreement and the other Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.

5.3            Reaffirmation . Each of Holdings and the Borrower hereby reaffirms its obligations under each Loan Document to which it is a party. Each of Holdings and the Borrower hereby further ratifies and reaffirms the validity and enforceability of all of the liens and security interests heretofore granted, pursuant to and in connection with the Guarantee and Collateral Agreement or any other Loan Document, to the Agent, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.

5.4            Counterparts . This Consent may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of an executed signature page of this Consent by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

5.5            Construction; Captions . Each party hereto hereby acknowledges that all parties hereto participated equally in the negotiation and drafting of this Consent and that, accordingly, no court construing this Consent shall construe it more stringently against one party than against the other. The captions and headings of this Consent are for convenience of reference only and shall not affect the interpretation of this Consent.

5.6            Successors and Assigns . This Consent shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (as permitted under the Credit Agreement).

5.7            Governing Law . This Consent, the rights and obligations of the parties hereto, and any claims or disputes relating thereto shall be governed by and construed in accordance with THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

5.8            Severability . The illegality or unenforceability of any provision of this Consent or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Consent or any instrument or agreement required hereunder.

5.9            Release of Claims . In consideration of the Lender’s and Agent’s agreements contained in this Consent, each of Holdings and Borrower hereby releases and discharges the Lender and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “ Released Person ”) of and from any and all other claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which Holdings or Borrower ever had or now has against the Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of the Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.

[ Signature page follows ]

IN WITNESS WHEREOF, each of the parties hereto has caused this Consent to be duly executed and delivered as of the date first above written.

[Signature Page to Consent to Credit Agreement]

CareView Communications, Inc. 8-K

Exhibit 10.6

AMENDMENT TO PROMISSORY NOTE

This Amendment to Promissory Note (this “Amendment”) is entered into as of February 2, 2018, by and between CareView Communications, Inc., a Nevada corporation (“Maker”) and Rockwell Holdings I, LLC, a Wisconsin limited liability company (“Holder”).

BACKGROUND

A.            Reference is hereby made to that certain Promissory Note dated as of January 31, 2017, made by Maker to the order of Holder in the original principal amount of $1,113,785.84 (the “Promissory Note”). Pursuant to this Amendment, Maker and Holder are amending the Promissory Note.

B.            Maker has advised Holder that, effective as of December 28, 2017, Maker has entered into a modification agreement requiring Maker to obtain the agreement of Holder that Maker shall not be obligated to make more than 50% of each principal payment in respect of the Promissory Note for a modification period commencing on January 1, 2018.

C.            For value received, Holder has agreed to amend the quarterly principal payment amounts under the Promissory Note as provided below.

In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.              Amendment to Promissory Note . Maker and Holder agree that Section 1(a) of the Promissory Note is hereby deleted in its entirety and replaced with the following:

2.              Ratification . The Promissory Note, as amended by this Amendment, is hereby ratified and confirmed in all respects and shall continue in full force and effect in accordance with its terms.

3.              Authority . Maker and Holder hereby represent and warrant that they have the full power and authority to agree to, enter into, execute and deliver and perform under this Amendment.

4.              Miscellaneous .

[Signature page follows]

IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be duly executed and delivered as of the date first above written.

[Amendment to Promissory Note]

CareView Communications, Inc. 8-K

Exhibit 10.7

AMENDMENT TO COMMON STOCK PURCHASE WARRANT

This Amendment to Common Stock Purchase Warrant (this “Amendment”) is entered into as of February 2, 2018, by and between CareView Communications, Inc., a Nevada corporation (the “Company”) and Rockwell Holdings I, LLC, a Wisconsin limited liability company (the “Holder”).

BACKGROUND

A.            Reference is hereby made to that certain Common Stock Purchase Warrant with an Initial Exercise Date of November 16, 2009, as reissued effective as of January 31, 2017, entitling the Holder to subscribe for and purchase from the Company up to 1,151,206 shares of common stock, par value $0.001 per share, of the Company (the “Warrant”). Capitalized terms used in this Amendment that are not otherwise defined in this Amendment shall have the meanings respectively ascribed to them in the Warrant.

B.              Section 5(l) of the Warrant provides that the Warrant may be modified or amended with the written consent of the Company and the Holder. Pursuant to this Amendment, the Company and the Holder are amending the Warrant.

C.              For value received, the Company has agreed to amend the Exercise Price under the Warrant as provided below.

In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.              Amendment to Warrant . The Company and the Holder agree that Section 2(b) of the Warrant is hereby deleted in its entirety and replaced with the following:

“b) Exercise Price . The exercise price per share of the Common Stock under this Warrant shall be $0.05 , subject to adjustment hereunder (the “ Exercise Price ”).”

2.               Ratification . The Warrant, as amended by this Amendment, is hereby ratified and confirmed in all respects and shall continue in full force and effect in accordance with its terms.

3.               Authority . The Company and the Holder hereby represent and warrant that they have the full power and authority to agree to, enter into, execute and deliver and perform under this Amendment.

4.               Miscellaneous .

[Signature page follows]

IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be duly executed and delivered as of the date first above written.

[Amendment to Common Stock Purchase Warrant]