CAREVIEW COMMUNICATIONS, INC. 8-K

EXHIBIT 10.43

Execution Version

THIRTEENTH AMENDMENT TO
NOTE AND WARRANT PURCHASE AGREEMENT

This THIRTEENTH AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT, dated as of February 6, 2020 (this “Amendment”), is made by and among CAREVIEW COMMUNICATIONS, INC., a Nevada corporation (the “Company”), each Existing Investor (as defined below) who is identified as an investor on Annex I attached hereto (the “Investors”), the HealthCor Parties (as defined below), and such additional Existing Investors as, together with the HealthCor Parties and the Investors (collectively, the “Majority Investors”), are holders of at least a majority of the shares of Common Stock issued or issuable (on an as converted basis) upon conversion of the Notes and Warrants.

WITNESSETH:

WHEREAS, the Company, HealthCor Partners Fund, L.P. (“HealthCor Partners”), HealthCor Hybrid Offshore Master Fund, L.P. (“HealthCor Hybrid” and, together with HealthCor Partners, the “HealthCor Parties”) and certain additional investors that purchased additional Notes and additional Warrants on February 17, 2015 (the “2015 Investors”), additional Notes and additional Warrants on February 23, 2018 (the “February 2018 Investors”), additional Notes on July 13, 2018 (the “July 2018 Investors”) and additional Notes on May 15, 2019 (the “2019 Investor” and, together with the 2015 Investors, the February 2018 Investors, the July 2018 Investors and the HealthCor Parties, the “Existing Investors”) are parties to that certain Note and Warrant Purchase Agreement, dated as of April 21, 2011 (as amended from time to time, including without limitation pursuant to that certain Note and Warrant Amendment Agreement dated December 30, 2011, that certain Second Amendment to Note and Warrant Purchase Agreement dated January 31, 2012, that certain Third Amendment to Note and Warrant Purchase Agreement dated August 20, 2013, that certain Fourth Amendment to Note and Warrant Purchase Agreement dated January 16, 2014, that certain Fifth Amendment to Note and Warrant Purchase Agreement dated December 15, 2014, that certain Sixth Amendment to Note and Warrant Purchase Agreement dated March 31, 2015, that certain Seventh Amendment to Note and Warrant Purchase Agreement dated June 26, 2015, that certain Eighth Amendment to Note and Warrant Purchase Agreement dated February 23, 2018, that certain Ninth Amendment to Note and Warrant Purchase Agreement dated July 10, 2018, that certain Tenth Amendment to Note and Warrant Purchase Agreement dated July 13, 2018, that certain Eleventh Amendment to Note and Warrant Purchase Agreement dated March 27, 2019 and that certain Twelfth Amendment to Note and Warrant Purchase Agreement dated May 15, 2019, the “Purchase Agreement”); 

WHEREAS, as contemplated by the Purchase Agreement, the Company issued and sold (a) $20,000,000 initial principal amount of Notes (the “2011 Notes”) and Warrants to purchase 11,782,859 shares of Common Stock (the “2011 Warrants”) to the HealthCor Parties on April 21, 2011, (b) $5,000,000 initial principal amount of Supplemental Closing Notes (the “2012 Notes”) to the HealthCor Parties on January 31, 2012, (c) $5,000,000 initial principal amount of 2014 Supplemental Closing Notes and 2014 Supplemental Warrants to purchase 4,000,000 shares of Common Stock to the HealthCor Parties on January 16, 2014, (d) $6,000,000 initial principal amount of Fifth Amendment Supplemental Closing Notes and Fifth Amendment Supplemental Warrants to purchase 3,692,308 shares of Common Stock to HealthCor Partners and the 2015 Investors on February 17, 2015, (e) $2,050,000 initial principal amount of Eighth Amendment Supplemental Notes and Eighth Amendment Supplemental Warrants to purchase 512,500 shares of Common Stock to the February 2018 Investors on February 23, 2018, (f) $1,000,000 initial principal amount of Tenth Amendment Supplemental Notes to the July 2018 Investors on July 13, 2018, and (g) $50,000 initial principal amount of Twelfth Amendment Supplemental Notes to the 2019 Investor on May 15, 2019;

WHEREAS, pursuant to Section 7.9 of the Purchase Agreement and subject to the terms and conditions contained herein, the parties hereto desire to amend the Purchase Agreement as set forth herein for the purposes of, among other things, providing for an additional investment in the Company by the Investors;

WHEREAS, the Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms and conditions stated herein and in the Purchase Agreement, additional Notes in the initial aggregate principal amount of $100,000, with a conversion price per share equal to $0.01 (subject to adjustment as described therein) (the “Thirteenth Amendment Supplemental Closing Notes”) on the later of February 6, 2020 or the satisfaction of the closing conditions outlined herein (the “Thirteenth Amendment Supplemental Closing Date”);

WHEREAS, pursuant to Section 7.9 of the Purchase Agreement and subject to the terms and conditions contained herein, the Majority Investors desire to consent pursuant to Section 6.12 of the Purchase Agreement to the Company’s issuance of a warrant for the purchase of 1,000,000 shares of Common Stock, with an exercise price per share equal to $0.01 (subject to adjustment as described therein), to Dr. James R. Higgins in connection with his Additional Tranche Three Loan (as defined in the PDL Credit Agreement) to the Company to be made pursuant to the PDL Credit Agreement on or about the date hereof (the “Additional Tranche Three Loan Warrant”); and

WHEREAS, the Company and the Investors are executing and delivering this Amendment in reliance upon the exemption from securities registration afforded by the provisions of Regulation D, as promulgated by the Commission under the Act.

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties and covenants contained herein and in the Purchase Agreement, which represent integral components of the transactions contemplated hereby and thereby and shall be fully enforceable by the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which hereby acknowledged, the Company, the Majority Investors and the Investors mutually agree as follows:

1.            Definitions. Capitalized terms used in this Amendment but not defined in this Amendment shall have the meanings ascribed to them in the Purchase Agreement.

2.            Amendment to Purchase Agreement. Section 1.3 of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:

“Sale of Additional Securities. After the Closing, the Company may sell to the Investors, on the same terms and conditions as those contained in this Agreement (as amended from time to time), up to $19,200,000 in additional Notes and Warrants to purchase an additional 8,204,808 shares of Common Stock, and (a) any such additional Notes shall be included within the definition of “Notes” under this Agreement; (b) any such additional Warrants shall be included within the definition of “Warrants” under this Agreement; (c) any such additional Notes and additional Warrants shall be included within the definition of “Closing Securities” under this Agreement; (d) any shares of Common Stock issuable upon conversion of any such additional Notes shall be included within the definition of “Note Shares” under this Agreement; (e) any shares of Common Stock issuable upon the exercise of any such additional Warrants shall be included within the definition of “Warrant Shares” under this Agreement; and (f) any amendment or joinder to this Agreement, the Notes, the Warrants, the Security Agreement, the IP Security Agreement, the Registration Rights Agreement, the PDL Subordination Agreement, the PDL Credit Agreement or any other documents contemplated or necessitated hereby in order to further consummate the sale of any such additional Notes and/or additional Warrants shall be included within the definition of “Transaction Documents” under this Agreement. Any such additional Notes shall be substantially in the form of the senior secured convertible note attached hereto as Exhibit A, with such updates to the “Issuance Date”, “Maturity Date”, “First Five Year Note Period”, “Conversion Price” and other terms as shall be mutually acceptable to the Company and the Investors. Any such additional Warrants shall be substantially in the form of common stock warrant attached hereto attached hereto as Exhibit B, with such updates to the “Expiration Date”, “Warrant Price” and other terms as shall be mutually acceptable to the Company and the Investors.”

3.            Issuance of Thirteenth Amendment Supplemental Closing Notes. Subject to the terms and conditions of this Amendment and the Purchase Agreement, on the Thirteenth Amendment Supplemental Closing Date, each of the Investors listed on Annex I shall severally, and not jointly, purchase from the Company, and the Company shall sell and issue to each Investor, the Thirteenth Amendment Supplemental Closing Notes in the respective amounts set forth opposite each such Investor’s name on Annex I in exchange for a cash payment by each such Investor of the amount set forth opposite such Investor’s name on Annex I (the “Thirteenth Amendment Supplemental Purchase Price”). The Thirteenth Amendment Supplemental Closing Notes shall be substantially in the form attached hereto as Exhibit A-1. The closing of the purchase, sale and issuance of the Thirteenth Amendment Supplemental Closing Notes (the “Thirteenth Amendment Supplemental Closing”) shall take place on the Thirteenth Amendment Supplemental Closing Date at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, One Financial Center, Boston, MA 02111, or at such other location as the Company and the Investors shall mutually agree. At the Thirteenth Amendment Supplemental Closing, the Company shall have satisfied the closing conditions set forth in subsections (c), (e), (f) and (k) of Section 4.1 of the Purchase Agreement as of the Thirteenth Amendment Supplemental Closing Date (for avoidance of doubt, reading references to the “Closing Date” in such subsections to refer to the Thirteenth Amendment Supplemental Closing Date) and shall deliver to the Investors the Thirteenth Amendment Supplemental Closing Notes, each registered in such name or names as the Investors may designate. On the Thirteenth Amendment Supplemental Closing Date, the Investors shall deliver their respective portion of the Thirteenth Amendment Supplemental Purchase Price to the Company, payable by wire transfer in same day funds to an account specified by the Company in writing. The Thirteenth Amendment Supplemental Closing Notes shall be secured as and to the same extent as the other Notes issued pursuant to the Purchase Agreement, as described in the Transaction Documents, including, without limitation, the Security Agreement and IP Security Agreement.

4.            Condition Precedent. The Thirteenth Amendment Supplemental Closing shall be further conditioned upon the execution and delivery, as of the Thirteenth Amendment Supplemental Closing, by the Company, CareView Texas, PDL and the other parties thereto of the Sixth Amendment to Credit Agreement, in the form attached as Exhibit B-1 hereto.

5.            Consent. The Majority Investors hereby consent, pursuant to Section 6.12 and Section 7.9 of the Purchase Agreement, to the issuance by the Company of the Additional Tranche Three Loan Warrant in the form attached as Exhibit C-1.

6.            Bringdown of Investors’ Representations and Warranties. Each Investor, severally and not jointly, represents and warrants to the Company that the statements contained in Article 3 of the Purchase Agreement are true and correct as of the Thirteenth Amendment Supplemental Closing Date as though made as of the Thirteenth Amendment Supplemental Closing Date (for this purpose, reading any reference to “Closing Securities” in such Article 3 to refer only to the Thirteenth Amendment Supplemental Closing Notes).

7.            Form D and Blue Sky. The Company agrees to file a Form D with respect to the Thirteenth Amendment Supplemental Closing Notes as required under Regulation D and to provide a copy thereof to the Investors promptly after such filing. The Company shall take such action as is necessary in order to obtain an exemption for or to qualify the Thirteenth Amendment Supplemental Closing Notes for sale to the Investors at the Thirteenth Amendment Supplemental Closing pursuant to this Amendment under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of any such exemption or qualification so taken to the Investors on or prior to the Thirteenth Amendment Supplemental Closing Date promptly upon the request of any Investor.

8.            Acknowledgement and Undertaking by Company. The Company agrees and acknowledges that the transactions described in this Amendment and the issuance of the Thirteenth Amendment Supplemental Closing Notes and shares of Common Stock upon exercise or conversion of the Thirteenth Amendment Supplemental Closing Notes are intended to be exempt from Section 16(b) of the Exchange Act to the maximum extent permitted by law including pursuant to Rule 16b-3 under the Exchange Act and the Commission’s releases and interpretations, and will, or will cause its successors and assigns to, from time to time as and when requested by the Investors, execute and deliver, or cause to be executed and delivered, to the extent it may lawfully do so, all such documents and instruments and take, or cause to be taken, to the extent it may lawfully do so, all such further actions as the Investors may reasonably deem necessary and desirable to facilitate and effect any such exemption. 

9.            No Further Amendments. Except as amended by this Amendment, the Purchase Agreement shall remain in full force and effect in accordance with its terms.

10.          Miscellaneous.

(a)             Ratification and Confirmation. The Company acknowledges, agrees and confirms that: (x) the Purchase Agreement and each of the other Transaction Documents, as amended and otherwise modified by the amendments and other modifications specifically provided herein or contemplated hereby, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed; and (y) without limiting the generality of the foregoing clause (x), (i) all obligations, liabilities and Indebtedness of the Company under the Transaction Documents, as amended hereby, constitute “Obligations” (as defined in the Security Agreement) secured by and entitled to the benefits of the security set forth in the Security Agreement and the IP Security Agreement, and the liens and security interests granted in favor of the Investors under the terms of the Security Agreement and the IP Security Agreement are and remain perfected, effective, enforceable and valid and such liens and security interests are, in each case, a first priority lien and security interest (except to the extent otherwise expressly permitted by the Transaction Documents) and such liens and security interests are hereby in all respects ratified and confirmed, and (ii) the shares of Common Stock issuable upon exercise or conversion of the Thirteenth Supplemental Closing Notes shall constitute “Registrable Securities” under the Registration Rights Agreement.

(b)             Expenses. The Company will pay and bear full responsibility for the reasonable legal fees and other out-of-pocket costs and expenses of the Investors attributable to the negotiation and consummation of the transactions contemplated hereby.

(c)             Further Assurances. The Company shall duly execute and deliver, or cause to be duly executed and delivered, at its own cost and expense, such further instruments and documents and to take all such action, in each case as may be necessary or proper in the reasonable judgment of the Investors to carry out the provisions and purposes of this Amendment.

(d)             Survival. The representations, warranties, covenants and agreements made herein shall survive any investigation made by any party hereto, the execution and delivery of this Amendment and the closing of the transactions contemplated hereby.

(e)             Governing Law. All questions concerning the construction, interpretation and validity of this Amendment shall be governed by and construed and enforced in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether in the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. In furtherance of the foregoing, the internal law of the State of Delaware will control the interpretation and construction of this Amendment, even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily or necessarily apply.

(f)             Construction. The Company and the Investors acknowledge that the Company and its independent counsel and the Investors and their independent counsel have jointly reviewed and drafted this document, and agree that any rule of construction and interpretation to the effect that drafting ambiguities are to be resolved against the drafting party shall not be employed.

(g)            Counterparts; Facsimile and Electronic Signatures. This Amendment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. Counterpart signatures to this Amendment delivered by facsimile or other electronic transmission shall be acceptable and binding.

(h)            Headings. The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning or interpretation of this Amendment.

[Signature Pages Follow]

IN WITNESS WHEREOF, each of the undersigned has duly executed this Thirteenth Amendment to Note and Warrant Purchase Agreement as of the date first written above. 

[Signature Page to Thirteenth ‎Amendment to Note and Warrant Purchase Agreement] 

[Signature Page to Thirteenth ‎Amendment to Note and Warrant Purchase Agreement] 

[Signature Page to Thirteenth ‎Amendment to Note and Warrant Purchase Agreement]

ACKNOWLEDGED AND AGREED: 

[Signature Page to Thirteenth ‎Amendment to Note and Warrant Purchase Agreement] 

Form of Thirteenth Amendment Supplemental Closing Notes 

(attached)

Exhibit B-1

Form of Sixth Amendment to Credit Agreement 

(attached)

Exhibit C-1 

Form of Additional Tranche Three Loan Warrant 

(attached)

CAREVIEW COMMUNICATIONS, INC. 8-K

EXHIBIT 10.44

Execution Version

SENIOR SECURED CONVERTIBLE NOTE

NEITHER THE ISSUANCE AND SALE OF THIS NOTE NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THIS NOTE OR THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE UNDER THE SECURITIES ACT, AS APPLICABLE, OR (B) AN OPINION OF COUNSEL (SELECTED BY THE HOLDER AND REASONABLY ACCEPTABLE TO THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE OFFERED FOR SALE, SOLD, ASSIGNED OR TRANSFERRED PURSUANT TO AN EXEMPTION FROM REGISTRATION; PROVIDED THAT SUCH OPINION OF COUNSEL SHALL NOT BE REQUIRED IN CONNECTION WITH ANY SUCH SALE, ASSIGNMENT OR TRANSFER TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS, PRIOR TO SUCH SALE, ASSIGNMENT OR TRANSFER, AN AFFILIATE OF THE HOLDER OF THIS NOTE, OR (II) UNLESS THE HOLDER PROVIDES THE COMPANY WITH ASSURANCE (REASONABLY SATISFACTORY TO THE COMPANY) THAT SUCH NOTE OR THE SHARES OF COMMON STOCK ISSUABLE UPON THE CONVERSION OF THE NOTE CAN BE SOLD, ASSIGNED OR TRANSFERRED PURSUANT TO RULE 144.

ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING, WITHOUT LIMITATION, SECTIONS 3(c)(iii) AND 13(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iii) OF THIS NOTE.

Notwithstanding anything herein to the contrary, the rights and remedies granted to the Holder pursuant to this Note, the lien and security interest granted to the Agent securing this Note and the exercise of any right or remedy by the Holder or Agent relating to this Note are subject to the provisions of the Subordination and Intercreditor Agreement dated as of June 26, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among PDL INVESTMENT HOLDINGS, LLC (as assignee of PDL BioPharma, Inc.) and EACH OF THE NOTE INVESTORS PARTY TO THAT CERTAIN NOTE AND WARRANT PURCHASE AGREEMENT DATED AS OF APRIL 21, 2011, AS subsequently amended, and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Note, the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement), the terms of the Intercreditor Agreement shall govern and control.

IN ADDITION, THE RIGHTS AND REMEDIES GRANTED to THE HOLDER PURSUANT TO THIS NOTE, THE LIEN AND SECURITY INTEREST GRANTED TO HEALTHCOR PARTNERS FUND, L.P., A DELAWARE LIMITED PARTNERSHIP, AS AGENT FOR THE INVESTORS UNDER THE SECURITY AGREEMENT (“AGENT”) SECURING THIS NOTE AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE HOLDER OR AGENT RELATING TO THIS NOTE ARE further SUBJECT TO THE PROVISIONS OF SECTIONS 3 AND 4 OF THE NINTH AMENDMENT, DATED AS OF JULY 10, 2018, TO THE PURCHASE AGREEMENT (AS DEFINED HEREIN).

No. H-1

CAREVIEW COMMUNICATIONS, INC.

SENIOR SECURED CONVERTIBLE NOTE

FOR VALUE RECEIVED, CareView Communications, Inc., a Nevada corporation (the “Company”), hereby promises to pay to Jeffrey C. Lightcap or the registered assign(s) thereof (“Holder”) the principal amount set forth above (as increased and/or decreased pursuant to the terms hereof by reason of the accrual of Interest, partial conversion or otherwise, and together with the principal amount of any additional convertible debt instruments issued by the Company to the Holder in accordance herewith, the “Principal”) when due, whether upon the Maturity Date, acceleration or otherwise (in each case in accordance with the terms hereof), together with accrued interest (“Interest”) on any outstanding Principal at the First Five Year Interest Rate or the Second Five Year Interest Rate, as applicable, from the date hereof (the “Issuance Date”) until the same becomes due and payable, whether upon the Maturity Date, acceleration, conversion or otherwise (in each case, in accordance with the terms hereof). This Senior Secured Convertible Note (this “Note”) is being issued pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 21, 2011, as amended by a Note and Warrant Amendment Agreement entered into as of December 30, 2011, a Second Amendment to Note and Warrant Purchase Agreement dated as of January 31, 2012, a Third Amendment to Note and Warrant Purchase Agreement dated as of August 20, 2013, a Fourth Amendment to Note and Warrant Purchase Agreement dated as of January 16, 2014, a Fifth Amendment to Note and Warrant Purchase Agreement dated as of December 15, 2014, a Sixth Amendment to Note and Warrant Purchase Agreement dated as of March 31, 2015, a Seventh Amendment to Note and Warrant Purchase Agreement dated as of June 26, 2015, an Eighth Amendment to Note and Warrant Purchase Agreement dated as of February 23, 2018, a Ninth Amendment to Note and Warrant Purchase Agreement dated as of July 10, 2018, a Tenth Amendment to Note and Warrant Purchase Agreement dated as of July 13, 2018, an Eleventh Amendment to Note and Warrant Purchase Agreement dated as of March 27, 2019, a Twelfth Amendment to Note and Warrant Purchase Agreement dated as of May 15, 2019 and a Thirteenth Amendment to Note and Warrant Purchase Agreement dated as of February 6, 2020 by and among the Company, the Holder and the other Investors named therein (the “Purchase Agreement”), and is entitled to the benefits of, and evidences obligations incurred under, the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement), to which reference is made for a description of the security for this Note and for a statement of the terms and conditions on which the Company is permitted and required to make prepayments and repayments of principal of the obligations evidenced hereby and on which such obligations may be declared to be immediately due and payable. This Note represents a full recourse obligation of the Company.

Certain capitalized terms used herein are defined in Section 23.

(1)            MATURITY. On the Maturity Date, the Holder shall surrender this Note to the Company and the Company shall pay to the Holder an amount in cash representing all outstanding Principal, accrued and unpaid Interest and accrued and unpaid Late Charges (as defined in Section 19(b)), if any. The “Maturity Date” shall be February 5, 2030.

(2)            INTEREST; INTEREST RATE.

(a)           So long as no Event of Default has occurred and is continuing, the outstanding Principal balance of this Note shall accrue Interest from the Issuance Date through February 5, 2025 (the “First Five Year Note Period”), at the rate of twelve and one-half percent (12.5%) per annum (based on a 360-day year and the actual number of days elapsed in any partial year) (the “First Five Year Interest Rate”), compounding quarterly, which accrued Interest shall be added to the outstanding Principal balance of this Note on the last day of each calendar quarter and shall thereafter itself, as part of such Principal balance, accrue Interest at the First Five Year Interest Rate (and, during the Second Five Year Note Period (as defined below), at the Second Five Year Interest Rate (as defined below)), compounding quarterly. All such accrued Interest added to the outstanding Principal balance pursuant to the immediately preceding sentence shall be payable on the same terms and subject to the same conditions set forth herein. Upon the occurrence of an Event of Default, Interest shall be calculated at the Default Rate as set forth in Section 2(c) below.

(b)           So long as no Event of Default has occurred and is continuing, the outstanding Principal balance of this Note shall accrue Interest from and after the end of the First Five Year Note Period through the Maturity Date (the “Second Five Year Note Period”), at the rate of ten percent (10%) per annum (based on a 360-day year and the actual number of days elapsed in any partial year) (the “Second Five Year Interest Rate”). The Interest accruing during the Second Five Year Note Period may be paid quarterly in arrears in cash or, at the Company’s option, such Interest may be added to the outstanding Principal balance of the Note on the last day of each calendar quarter and shall thereafter itself, as part of such Principal balance, accrue Interest at the Second Five Year Interest Rate, compounding quarterly. All such accrued Interest added to the outstanding Principal balance pursuant to the immediately preceding sentence shall be payable on the same terms and subject to the same conditions set forth herein. Upon the occurrence of an Event of Default, Interest shall be calculated at the Default Rate as set forth in Section 2(c) below.

(c)           From and after the date such Event of Default occurred, the First Five Year Interest Rate or the Second Five Year Interest Rate, whichever is then applicable, shall be increased by five percent (5%) and otherwise applied consistently with the provisions of Sections 2(a) and 2(b) (the “Default Rate”).

(d)                

(i)            In addition to the foregoing, if any Major Event occurs at any time during the First Five Year Note Period, then all amounts of Interest that are then scheduled to be paid or accrued pursuant to Section 2(a) through and including the last day of the First Five Year Note Period, but that have not yet been paid pursuant to Section 2(a) (such amount, the “First Five Year Major Event Interest Amount”), will accelerate and become immediately due and payable by the Company by the issuance to the Holder of an additional convertible debt instrument with the same terms as this Note, in a principal amount equal to the First Five Year Major Event Interest Amount, and, at any time from and after the occurrence of the Major Event, the Holder may, at its option, elect to (A) convert this Note and such convertible debt instrument at the then effective Conversion Rate or (B) redeem all or any portion of the outstanding Principal balance of this Note and such convertible debt instrument, provided that for so long as this Note or such convertible debt instrument remain outstanding, subject to Section 2(d)(ii) below, no additional Interest shall accrue on this Note or such additional convertible debt instrument until the commencement of the Second Five Year Note Period. If any Major Event occurs at any time during the Second Five Year Note Period, then all amounts of Interest that are then scheduled to be paid or accrued pursuant to Section 2(b) through and including the last day of the Second Five Year Note Period (assuming for this purpose that the Company would elect to pay all such Interest in cash), but that have not yet been paid pursuant to Section 2(b) (such amount, the “Second Five Year Major Event Interest Amount”), will accelerate and become immediately due and payable by the Company by the issuance to the Holder of an additional convertible debt instrument with the same terms as this Note and in a principal amount equal to the Second Five Year Major Event Interest Amount or, at the Company’s option, by cash payment in immediately available funds of an amount equal to the Second Five Year Major Event Interest Amount paid within five (5) Business Days of the occurrence of the Major Event. At any time following the occurrence of the Major Event, the Holder may, at its option, elect to (X) convert this Note and such convertible debt instrument (if any) at the then effective Conversion Rate or (Y) redeem all or any portion of the outstanding Principal balance of this Note and such convertible debt instrument (if any), provided that, for so long as this Note or any such convertible debt instrument remain outstanding, subject to Section 2(d)(ii) below, no additional Interest shall accrue on this Note or such additional convertible debt instrument for the duration of the Second Five Year Note Period. For purposes of this Note, the term “Major Event” shall mean the occurrence of (i) the signing of a definitive agreement or a series of agreements for the transfer, sale, lease or license of all or substantially all of the Company’s assets or capital securities; (ii) the signing of a definitive agreement to consolidate or merge with or into another Person (whether or not the Company is the Successor Entity) that results or would result, after giving effect to the consummation of the transactions contemplated by such agreement, in such other Person (or the holders of such other Person’s capital stock immediately prior to the transaction) (other than the Holder or its Affiliates) being or becoming the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five percent (35%) or more of any class of the Company’s or the Successor Entity’s outstanding capital securities; (iii) the signing of a definitive agreement or a series of agreements to consummate a stock acquisition or sale or other business combination (including, without limitation, a reorganization, recapitalization, or spin-off), or series thereof, with any other Person or Persons (other than the Holder or its Affiliates) that results or would result, after giving effect to the consummation of the transactions contemplated by such agreement or agreements, in such other Person or Persons being or becoming the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five percent (35%) or more of any class of the Company’s outstanding capital securities; (iv) the commencement or other public announcement by any Person (other than the Company, the Holder or the Holder’s Affiliates) of a purchase, tender or exchange offer for 35% or more of the outstanding shares of Common Stock (not including any shares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (v) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) (other than the Holder or its Affiliates) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of either (x) 35% or more of the aggregate ordinary voting power represented by issued and outstanding Common Stock or (y) 35% or more of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by such Person or Persons as of the date hereof or (vi) the public announcement by any Person, Persons or group (other than the Company, the Holder or the Holder’s Affiliates) of a bona fide intention to enter into any of the agreements or to engage in or commence any of the actions described in clauses (i) through (v) above, or otherwise reflecting an intent to acquire the Company or all or substantially all of its assets or capital securities, or the public announcement by the Company of its receipt of a communication from such a Person, Persons or group evidencing the same.

(ii)          Notwithstanding the foregoing, in the event that, following a Major Event, an Event of Default occurs during the First Five Year Note Period while any portion of this Note and/or any convertible debt instrument issued pursuant to Section 2(d)(i) remains outstanding (such outstanding portion, the “Post EOD Principal”), the Company shall issue to the Holder an additional convertible debt instrument with the same terms as this Note and with a face principal amount equal to the difference (to the extent such difference is positive) between (A) the applicable EOD Accelerated Interest (as defined in Section 4(b)) on such Post EOD Principal, and (B) the First Five Year Major Event Interest Amount attributable to the Post EOD Principal and paid under Section 2(d)(i), and at any time following the occurrence of the Event of Default, the Holder may, at its option, elect to convert such additional convertible debt instrument at the then effective Conversion Rate or redeem all or any portion of the outstanding Principal balance of such convertible debt instrument. In the event that, following a Major Event, an Event of Default occurs during the Second Five Year Note Period while any Post EOD Principal remains outstanding, the Company shall issue to the Holder an additional convertible debt instrument with the same terms as this Note and with a face principal amount equal to the difference (to the extent such difference is positive) between (X) the applicable EOD Accelerated Interest attributable to such Post EOD Principal and (Y) the Second Five Year Major Event Interest Amount attributable to the Post EOD Principal and paid under Section 2(d)(i), and at any time following the occurrence of the Event of Default, the Holder may, at its option, elect to convert such additional convertible debt instrument at the then effective Conversion Rate or redeem all or any portion of the outstanding Principal balance of such convertible debt instrument, provided, however, that the Company shall also have the option of paying the foregoing amount in cash upon the occurrence of such Event of Default during the Second Five Year Note Period.

(e)           Notwithstanding any other provision of this Note, the aggregate annual interest rate payable with respect to this Note (including all charges and fees deemed to be interest pursuant to applicable law) shall not exceed the maximum annual rate permitted by applicable law. In the event the aggregate annual interest rate payable with respect to this Note (including all charges and fees deemed to be interest under applicable laws) exceeds the maximum legal rate, the Company shall only pay Interest to the Holder at the maximum permitted rate and the Company shall continue to make such Interest payments at the maximum permitted rate until all amounts, fees and obligations required to be paid hereunder have been paid in full.

(f)            This Note is one of a series of notes issued by the Company pursuant to the Purchase Agreement. Such Notes are referred to herein as the “Notes,” and the holders thereof (including the Holder) are referred to herein as the “Investors.” The Notes initially issued in calendar years 2011 and 2012 are senior in right of payment to the Notes initially issued after calendar year 2012 (including this Note, the “Subsequent Tranche Notes”), as more fully set forth in the Purchase Agreement. The right of an Investor to receive payments of Principal and Interest under this Note shall be pari passu with the rights of the other Investors to receive payments of Principal and Interest under their respective Subsequent Tranche Notes, and the Company covenants that any payments made by it with respect to the Subsequent Tranche Notes shall be made pro rata among the Investors determined based on the ratio of the outstanding balance of Principal and Interest under each Subsequent Tranche Note divided by the aggregate outstanding balance of Principal and Interest under all Subsequent Tranche Notes.  By the Holder’s acceptance of this Note, the Holder agrees to the foregoing sentence.

(3)           CONVERSION OF NOTE. This Note shall be convertible into shares of Common Stock, on the terms and conditions set forth in this Section 3.

(a)           Conversion Right. At any time or times on or after the Issuance Date, the Holder shall be entitled to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into fully paid and nonassessable shares of Common Stock in accordance with Section 3(c), at the Conversion Rate (as defined below). The Company shall not issue any fraction of a share of Common Stock upon any conversion. If any conversion would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock to the nearest whole share but shall have no obligation to pay the Holder for any fraction of a share of Common Stock forfeited as a result of such rounding. The Company shall pay any and all stock transfer, stamp, documentary and similar taxes (excluding any taxes on the income or gain of the Holder) that may be payable with respect to the issuance and delivery of shares of Common Stock to the Holder upon conversion of any Conversion Amount. To the extent permitted by law, the Company and the Holder acknowledge and agree that any conversion of all or any portion of the Conversion Amount into shares of Common Stock pursuant to the terms of this Section 3(a) will not be treated as a taxable transaction and the Company and the Holder agree to report any such conversion in a manner consistent with the foregoing treatment.

(b)          Conversion Rate. The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to Section 3(a) (the “Conversion Rate”) shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price.

(i)           “Conversion Amount” means the sum of (A) the portion of the Principal to be converted with respect to which this determination is being made, (B) accrued and unpaid Interest with respect to such Principal and (C) accrued and unpaid Late Charges with respect to such Principal and Interest.

(ii)          “Conversion Price” means $0.01, subject to adjustment as provided herein (including, without limitation, adjustment pursuant to Section 6).

(c)           Mechanics of Conversion.

(i)               Optional Conversion. To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”), the Holder shall (A) transmit by facsimile (or otherwise deliver), for receipt on or prior to 4:00 p.m., Dallas, TX time, on such date, a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion Notice”) to the Company and (B) if required by Section 3(c)(iii), cause this Note to be delivered to the Company as soon as practicable on or following such date. On or before 4:00 p.m., Dallas, TX time, on the first (1^st) Business Day following the date of receipt of a Conversion Notice, the Company shall transmit by facsimile a confirmation of receipt of such Conversion Notice to the Holder (at the facsimile number provided in the Conversion Notice) and the Company’s transfer agent, if any (the “Transfer Agent”). On or before 4:00 p.m., Dallas, TX time, on the third (3^rd) Business Day following the date of receipt of a Conversion Notice (the “Share Delivery Date”), the Company shall (X) provided the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, cause the Transfer Agent to credit such aggregate number of shares of Common Stock to which the Holder shall be entitled to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian (“DWAC”) system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or if the Holder otherwise requests, issue and deliver to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled. If this Note is physically surrendered for conversion as required by Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than three (3) Business Days after receipt of this Note and at its own expense, issue and deliver to the Holder a new Note (in accordance with Section 13(d)), representing the outstanding Principal not converted. The Person or Persons entitled to receive the shares of Common Stock issuable upon a conversion of this Note shall be treated for all purposes as the record holder or holders of such shares of Common Stock on the Conversion Date.

(ii)               Company’s Failure to Timely Convert. If, at any time, the Company shall fail to credit the Holder’s balance account with DTC or issue a certificate to the Holder, as the case may be, upon conversion of any Conversion Amount on or prior to the date which is seven (7) Business Days after the Conversion Date (a “Conversion Failure”), then (A) the Company shall pay damages to the Holder for each day of such Conversion Failure in an amount equal to 1.5% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date and to which the Holder is entitled, and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date and (B) the Holder, upon written notice to the Company, may void its Conversion Notice with respect to, and retain or have returned, as the case may be, any portion of this Note that has not been converted pursuant to such Conversion Notice; provided that the voiding of a Conversion Notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 3(c)(ii) or otherwise.

(iii)             Book-Entry. Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Conversion Amount represented by this Note is being converted or (B) the Holder has provided the Company with prior written notice (which notice may be included in a Conversion Notice) requesting physical surrender and reissue of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and Late Charges converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion.

(iv)             Disputes. In the event of a dispute between the Company and the Holder of this Note as to the number of shares of Common Stock issuable to the Holder in connection with a conversion of this Note, the Company shall issue to the Holder the number of shares of Common Stock not in dispute and resolve such dispute in accordance with Section 18.

(4)           RIGHTS UPON EVENT OF DEFAULT.

(a)           Event of Default. Each of the following events shall constitute an “Event of Default”:

(i)               the Company’s failure to pay to the Investors any amount of Principal when and as due under the Notes (including, without limitation, upon a redemption request pursuant to Section 2(d));

(ii)              the Company’s failure to pay to the Investors any amount of Interest, Late Charges or other amounts (other than the amounts specified in clause (i)) when and as due under the Notes if such failure continues for a period of at least three (3) Business Days;

(iii)             any acceleration prior to maturity of any Indebtedness referred to in clause (a) or (b) of the definition thereof of the Company or any of its Subsidiaries consisting of principal individually or in the aggregate equal to or greater than $500,000;

(iv)             the Company or any of its Subsidiaries, pursuant to or within the meaning of Title 11, U.S. Code, or any similar Federal, foreign or state law for the relief of debtors (collectively, “Bankruptcy Law”), (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a receiver, trustee, assignee, liquidator or similar official (a “Custodian”), (D) makes a general assignment for the benefit of its creditors or (E) admits in writing that it is generally unable to pay its debts as they become due;

(v)              a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that is not vacated, set aside or reversed within sixty (60) days that (A) is for relief against the Company or any of its Subsidiaries in an involuntary case, (B) appoints a Custodian of the Company or any of its Subsidiaries or (C) orders the liquidation of the Company or any of its Subsidiaries;

(vi)             a final judgment or judgments for the payment of money aggregating in excess of $2,000,000 are rendered against the Company or any of its Subsidiaries and which judgments are not, within sixty (60) days after the entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within sixty (60) days after the expiration of such stay; provided, however, that any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $2,000,000 amount set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company will receive the proceeds of such insurance or indemnity within sixty (60) days of the issuance of such judgment;

(vii)           the Company or any Subsidiary breaches any negative covenant in any Transaction Document;

(viii)         the Company breaches any affirmative covenant or agreement or materially breaches any representation or warranty in any Transaction Document, and such breach continues for a period of at least thirty (30) days;

(ix)             if at any time while any portion of the Notes remain outstanding (x) the Board of Directors fails to include one (1) Director designated by the Holder(s) of at least a majority of the Principal amount of the Notes outstanding, voting as a separate class (the “Noteholder Director”), provided that the Company shall have thirty (30) Business Days following the resignation, removal or death or disability of the Noteholder Director to appoint a successor Noteholder Director designated by the Holder(s) of at least a majority of the Principal amount of the Notes outstanding, voting as a separate class, unless such failure is the result of the failure by such Holders to notify the Company of the name of the replacement Noteholder Director, in which event the thirty (30) Business Day period shall be extended until a date which is ten (10) Business Days after notice of the name and background of the replacement Noteholder Director is given to the Company, or (y) without the consent of the Noteholder Director (or, in the absence of a Noteholder Director, the Holder(s) of at least a majority of the Principal amount of the Notes outstanding), the Board of Directors exceeds seven (7) directors, or the Compensation Committee or Nominating Committee (or other committees serving similar functions) of the Board of Directors exceeds three (3) members, or (z) the Noteholder Director is not afforded the right to serve as a member of each of the Compensation Committee and Nominating Committee (or committees serving similar functions);

(x)              the failure of the Company for a period of ninety (90) days following the resignation and/or departure of Steven Johnson to engage a replacement therefor that is reasonably acceptable to Investors holding at least a majority of the Principal amount of the Notes outstanding (the “Majority Investors”);

(xi)             [Intentionally omitted];

(xii)           the Company or any Subsidiary shall fail to make any payment (whether of principal, interest or otherwise and regardless of amount) in respect of any Indebtedness in excess of $500,000 (“Material Indebtedness”), when and as the same shall become due and payable, after giving effect to any grace period with respect thereto;

(xiii)         any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;

(xiv)         there shall occur any material loss theft, damage or destruction of any Collateral (as defined in the Security Agreement) not fully covered (subject to such reasonable deductibles as the Holder shall have approved) by insurance; or

(xv)           either (a) the Company’s Board of Directors, a committee of the Board of Directors or the officer or officers of the Company authorized to take such action if board action is not required, concludes that any previously issued financial statements, including interim periods, should no longer be relied upon because of an error in such financial statements as addressed in FASB Accounting Standards Codification Topic 250, as may be modified, supplemented or succeeded, or (b) the Company is advised by, or receives notice from, its independent accountant that disclosure should be made or action should be taken to prevent future reliance on a previously issued audit report or completed interim review related to previously issued financial statements, and in either case the amended financial statements required in order to permit reliance on such financial statements for the affected periods have not been filed with the SEC within ninety (90) days of the earliest such event; provided, however that if the facts and/or circumstances underlying the Event of Default described in this Section 4(a)(xv) would also create or constitute a separate Event of Default under this Note, the cure period set forth in this Section 4(a)(xv) shall not supersede or prevent the application of any shorter cure period associated with such other applicable Event of Default, which may be enforced separately and independently.

(b)           Rights Upon Event of Default. Promptly after the occurrence of an Event of Default, the Company shall deliver written notice thereof (an “Event of Default Notice”) to the Holder, and the Majority Investors may, at their option, by notice to the Company (an “Event of Default Acceleration Notice”), declare the Default Amount to be due and payable upon demand (an “Acceleration”), provided that upon the occurrence of an Event of Default described in Sections 4(a)(iv) and 4(a)(v) above, such Acceleration shall occur automatically without requiring the delivery of an Event of Default Acceleration Notice, such that the Default Amount shall automatically become immediately due and payable without any further notice, demand or other action. For purposes hereof, the “Default Amount” shall equal the entire unpaid Principal balance under this Note, plus all previously accrued and unpaid Interest and Late Charges, together with all future Interest (calculated at the Default Rate pursuant to Section 2(c)) scheduled to accrue during the First Five Year Note Period (if such Acceleration occurred during the First Five Year Note Period) or the Second Five Year Note Period (if such Acceleration occurred during the Second Five Year Note Period) (such future Interest amount the “EOD Accelerated Interest”), in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company. Following an Acceleration (other than an Acceleration based on an Event of Default described in Sections 4(a)(iv) and 4(a)(v) above), the Holder shall have the right, but not the obligation, to demand payment in full of the Default Amount at any time prior to the original Maturity Date of this Note upon written notice to the Company (a “Demand Notice”). In the event a Demand Notice is not immediately given upon the occurrence of an Event of Default, or the Company otherwise does not immediately pay the Default Amount when due, interest shall continue to accrue on the Note as provided herein, provided that (i) upon an Acceleration that occurs during the First Five Year Note Period, such Default Amount shall not accrue additional Interest until the commencement of the Second Five Year Note Period, and (ii) upon an Acceleration that occurs during the Second Five Year Note Period, such Default Amount shall not accrue any additional Interest for the duration of the Second Five Year Note Period. The Company shall deliver the applicable Default Amount to the Holder (x) in the case of an Event of Default under Section 4(a)(iv) or 4(a)(v), immediately, and (y) in the case of any other Event of Default, within five (5) Business Days after the Company’s receipt of the Demand Notice. In the event the Company fails to deliver the Default Amount as described above, the Holder shall be permitted to exercise such rights as a secured party or otherwise hereunder or under the other Transaction Documents to the extent permitted by applicable law.

(5)           RIGHTS UPON A CHANGE OF CONTROL.

(a)           Assumption. The Company shall not enter into or be party to a transaction resulting in a Change of Control unless the Successor Entity assumes in writing all of the obligations of the Company under this Note and the other Transaction Documents in accordance with the provisions of this Section 5(a) pursuant to written agreements on or prior to the consummation of such Change of Control, including the agreement to deliver to the Holder of this Note in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note, including, without limitation, having a principal amount and interest rate equal to the principal amounts and the interest rates of this Note (the “Successor Note”). Upon the occurrence of any Change of Control, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Change of Control, the provisions of this Note referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Note with the same effect as if such Successor Entity had been named as the Company herein, until such time as the Successor Note is delivered. Upon consummation of a Reclassification or Change of Control as a result of which holders of Common Stock shall be entitled to receive stock, securities, cash, assets or any other property with respect to or in exchange for such Common Stock, the Company or Successor Entity, as the case may be, shall deliver to the Holder confirmation that there shall be issued upon conversion of this Note at any time after the consummation of such Reclassification or Change of Control, in lieu of the shares of Common Stock (or other securities, cash, assets or other property) issuable upon the conversion of this Note prior to such Reclassification or Change of Control, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of such Reclassification or Change of Control had this Note been converted immediately prior to such Reclassification or Change of Control, as adjusted in accordance with the provisions of this Note. The provisions of this Section 5(a) shall apply similarly and equally to successive Change of Control transactions and shall be applied without regard to any limitations on the conversion of this Note.

(6)           RIGHTS UPON ISSUANCE OF OTHER SECURITIES.

(a)           Record Date. If the Company takes a record of the holders of Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities, then such record date will be deemed to be the date of the issue or sale of the Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution, as the case may be.

(b)           Adjustment of Conversion Rate upon Subdivision or Combination of Common Stock; Stock Dividends. If the Company at any time, or from time to time, subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. If the Company at any time, or from time to time, combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately increased. Any adjustment under this Section 6(b) shall become effective at the close of business on the date the subdivision or combination becomes effective or, in the case of a stock dividend, the date of such event.

(c)           (i)        Adjustment of Conversion Rate upon Cash Dividends and Distributions. If the Company at any time, or from time to time, pays a dividend or makes a distribution in cash to the record holders of any class of Common Stock, then immediately after the close of business on the day that the Common Stock trades ex-distribution, the Conversion Price then in effect shall be reduced to an amount equal to the product of (i) the Conversion Price in effect immediately prior to such dividend or distribution and (ii) the quotient determined by dividing (A) the Closing Sale Price of the Common Stock on the day that the Common Stock trades ex-distribution by (B) the sum of (1) the Closing Sale Price of the Common Stock on the day that the Common Stock trades ex-distribution plus (2) the amount per share of such dividend or distribution. The Company shall not be required to give effect to any adjustment in the Conversion Price pursuant to this Section 6(c) unless and until the net effect of one or more adjustments (each of which shall be carried forward until counted toward an adjustment), determined in accordance with this Section 6(c), shall have resulted in a change of the Conversion Price by at least 1%, and when the cumulative net effect of more than one adjustment so determined shall be to change the Conversion Price by at least 1%, such change in the Conversion Price shall then be given effect.

(ii)       Adjustment of Conversion Rate upon Distributions of Capital Stock, Indebtedness or Other Non-Cash Assets. If the Company at any time, or from time to time, distributes any shares of capital stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in Section 6(b)) to the record holders of any class of Common Stock, then the Conversion Price then in effect shall be reduced to an amount equal to the product of (A) the Conversion Price then in effect and (B) a fraction of which the numerator shall be the Closing Sale Price per share of the Common Stock on the record date fixed for determination of stockholders entitled to receive such distribution less the fair market value on such record date (as determined by the Board of Directors) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the record date) and of which the denominator shall be the Closing Sale Price per share of the Common Stock on such record date.

(d)           [Intentionally omitted.]

(e)           Other Events; Other Dividends and Distributions. If any event occurs of the type contemplated by the provisions of this Section 6 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s Board of Directors shall, in good faith, make an adjustment in the Conversion Price so as to protect the rights of the Holder under this Note; provided that no such adjustment will increase the Conversion Price as otherwise determined pursuant to this Section 6.

(f)            Notice of Adjustment. Whenever the Conversion Price is adjusted pursuant to this Section 6, the Company shall promptly mail notice of such adjustment to the Holder, which notice shall set forth the Conversion Price after adjustment, the date on which such adjustment became effective and a brief statement of the facts resulting in such adjustment.

(7)           NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation, Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of this Note.

(8)           RESERVATION OF AUTHORIZED SHARES.

(a)           Reservation. The Company shall at all times reserve out of its authorized and unissued shares of Common Stock a number of shares of Common Stock equal to 100% of the Conversion Rate with respect to the full Conversion Amount of this Note, solely for the purpose of effecting the conversion of this Note (the “Required Reserve Amount”).

(b)           Insufficient Authorized Shares. If at any time while this Note remains outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than seventy-five (75) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its commercially reasonable efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that they approve such proposal.

(9)           VOTING RIGHTS. The Holder shall have no voting rights as the Holder of this Note, except as required by law, including, but not limited to, the General Corporation Law of the State of Nevada, and as expressly provided in this Note, the Company’s Charter or any of the other Transaction Documents.

(10)         OTHER COVENANTS.

(a)           Listing. The Company shall promptly secure the listing of all of the Registrable Securities (as defined in the Registration Rights Agreement) upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed (subject to official notice of issuance) and shall maintain such listing of all Registrable Securities from time to time issuable under the terms of the Transaction Documents. The Company shall maintain the Common Stock’s authorization for quotation on the principal exchange or market in which it is listed. Neither the Company nor any of its Subsidiaries shall take any action which would be reasonably expected to result in the delisting or suspension of the Common Stock on the principal market in which it is listed, other than in connection with a transfer of listing to an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 10(a).

(b)           Quarterly Report of Outstanding Principal and Interest. The Company covenants to deliver to the Holder, within 30 days following the end of each calendar quarter while any portion of this Note remains outstanding, a written statement signed by an authorized officer of the Company certifying (i) the amount of the outstanding Principal balance of this Note, including any Interest added to Principal pursuant to Section 2(a) and 2(b) above, and (ii) all accrued but unpaid Interest on such outstanding Principal balance, and (iii) all remaining scheduled payments of Interest through the Maturity Date, in each case as of the end of such calendar quarter. The parties agree that the scheduled Interest payments through the Maturity Date will be calculated in the same manner as in the Notes issued prior to the date hereof.

(c)           Waiver of Usury Defense. The Company covenants (to the extent that it may lawfully do so) that it shall not assert, plead (as a defense or otherwise) or in any manner whatsoever claim (and shall actively resist any attempt to compel it to assert, plead or claim) in any action, suit or proceeding that the interest rate on this Note violates present or future usury or other laws relating to the interest payable on any Indebtedness and shall not otherwise avail itself (and shall actively resist any attempt to compel it to avail itself) of the benefits or advantages of any such laws.

(d)           Registration Rights. The Company agrees that the Holder, as a holder of Registrable Securities (as defined in the Registration Rights Agreement, dated as of April 21, 2011, by and among the Company and the Investors identified therein, as may be amended and/or restated from time to time (the “Registration Rights Agreement”)), is entitled to the benefits of the Registration Rights Agreement. Further, if (i) the Registration Statement (as defined in Registration Rights Agreement) required by Section 2(a) of the Registration Rights Agreement, covering the Registrable Securities required to be covered thereby is (A) not filed with the SEC on or before thirty (30) calendar days after the applicable Registration Request (as defined in Registration Rights Agreement) (a “Filing Failure”) or (B) not declared effective by the SEC on or before the date that is one hundred and eighty (180) calendar days after the applicable Registration Request, in each case to the extent required under the Registration Rights Agreement (an “Effectiveness Failure”) or (ii) after the effective date of any Registration Statement, after the second (2nd) consecutive Business Day (other than during an allowable blackout period pursuant to Section 3(g) of the Registration Rights Agreement (“Blackout Period”)) on which sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, or to maintain a listing of the Common Stock required for sales to be made under the Registration Statement) (a “Maintenance Failure”), then, as relief for the damages to the Holder by reason of any such delay in or reduction of its ability to sell the Registrable Securities, the Company shall pay to the Holder an amount in cash equal to (A) one percent (1%) of the outstanding Principal balance of this Note on each of the following dates: (i) the day of a Filing Failure; (ii) the day of an Effectiveness Failure; and (iii) the initial day of a Maintenance Failure, and (B) one percent (1%) of the outstanding Principal balance of this Note on each of the following dates: (i) on every thirtieth (30th) day after the initial day of a Filing Failure (prorated for periods totaling less than thirty (30) days) until such Filing Failure is cured; (ii) on every thirtieth (30th) day after the initial day of an Effectiveness Failure (prorated for periods totaling less than thirty (30) days) until such Effectiveness Failure is cured; (iii) on every thirtieth (30th) day after the initial day of a Maintenance Failure (prorated for periods totaling less than thirty (30) days) until such Maintenance Failure is cured. The payments to which the Holder shall be entitled pursuant to this Section 10(d) are referred to herein as “Registration Default Payments.” Registration Default Payments shall be paid on the earlier of (I) the last day of the calendar month during which such Registration Default Payments are incurred and (II) the third (3rd) Business Day after the event or failure giving rise to the Registration Default Payments is cured. In the event the Company fails to make Registration Default Payments in a timely manner, such Registration Default Payments shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full. If the Company has declared a Blackout Period, a Maintenance Failure shall be deemed not to have occurred and be continuing in relation to the Registration Statement during the period specified in Section 3(g) of the Registration Rights Agreement. Registration Default Payments shall be payable from the first day any Blackout Period exceeds the period specified in Section 3(g) of the Registration Rights Agreement. Registration Default Payments shall cease to accrue at the end of the Effectiveness Period (as defined in Registration Rights Agreement); provided that the foregoing shall not affect the Company’s obligation to make Registration Default Payments for any period prior to such time. Whenever in this Note there is mentioned, in any context, the payment of interest on, or in respect of, this Note, such mention shall be deemed to include mention of the payment of liquidated damages on this Note to the extent that, in such context, such liquidated damages are, were or would be payable in respect thereof pursuant to this Section 10(d). For the avoidance of doubt, the Registrable Securities required to be included in any Registration Statement referred to in this Section 10(d) shall be determined according to the provisions of the Registration Rights Agreement, including all references to exceptions therein in such provisions related to the “Rule 415 Amount,” as applicable.

(11)         VOTE TO ISSUE, OR CHANGE THE TERMS OF, NOTE. Any provision of this Note may be amended, waived or modified only upon the written consent of both the Company and the Majority Investors; provided, that no amendment or waiver may (a) extend the Maturity Date of this Note, (b) decrease the Conversion Price or Conversion Rate of this Note, (c) reduce the rate or extend the time for payment of any Interest on this Note, or (d) reduce the percentage of Notes required for consent to any modifications of the Notes, without the consent of the Holder of this Note.

(12)         TRANSFER. This Note and the shares of Common Stock issuable upon conversion of this Note may not be offered for sale, sold, transferred or assigned (i) in the absence of (a) an effective registration statement for this Note or the shares of Common Stock issuable upon conversion of this Note, as applicable, or (b) an opinion of counsel (selected by the Holder and reasonably acceptable to the Company), in a form reasonable acceptable to the Company, that this Note and the shares of Common Stock issuable upon conversion of this Note may be offered for sale, sold, assigned or transferred pursuant to an exemption from registration; provided that such opinion of counsel shall not be required in connection with any such sale, assignment or transfer to an institutional accredited investor that is, prior to such sale, assignment or transfer, an affiliate of the Holder, or (ii) unless the Holder provides the Company with assurance (reasonably satisfactory to the Company) that such Note or the shares of Common Stock issuable upon the conversion of this Note can be sold, assigned or transferred pursuant to Rule 144.

(13)         REISSUANCE OF THIS NOTE.

(a)               Transfer. This Note is issued in registered form pursuant to Treasury Regulations section 1.871-14(c)(1). The Company (or its agent) will maintain a record of the Holder of this Note, and of Principal and Interest hereon as required by that regulation. This Note may be transferred or otherwise assigned only by surrender of this Note and issuance of a new Note in accordance with this Section 13, and neither this Note nor any interest herein may be sold, transferred or assigned to any Person except upon satisfaction of the conditions specified in this Section 13. If this Note is to be transferred or assigned, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note (in accordance with Section 13(d)), registered as the Holder may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance with Section 13(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii) following conversion of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note.

(b)               Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder a new Note (in accordance with Section 13(d)) representing the then outstanding Principal.

(c)                Note Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Note or Notes (in accordance with Section 13(d) and in Principal amounts of at least $100,000) representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.

(d)               Issuance of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or in the case of a new Note being issued pursuant to Section 13(a) or Section 13(c), the Principal designated by the Holder which, when added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed the Principal remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and (v) shall represent accrued Interest and Late Charges on the Principal and Interest of this Note, from the Issuance Date.

(14)         REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.

(15)        PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, but not limited to, reasonable attorneys’ fees and disbursements.

(16)        CONSTRUCTION; HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the Holder of this Note and shall not be construed against any person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation of, this Note.

(17)        FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

(18)        DISPUTE RESOLUTION. In the case of a dispute as to the arithmetic calculation of the Conversion Rate, the Company shall submit the disputed arithmetic calculations via facsimile within three (3) Business Days of receipt, or deemed receipt, of the Conversion Notice, as the case may be, to the Holder. If the Holder and the Company are unable to agree upon such calculation within five (5) Business Days of such disputed arithmetic calculation being submitted to the Holder, then the Company shall, within one Business Day submit via facsimile the disputed arithmetic calculation of the Conversion Rate to the Company’s independent, outside accountant. The Company, at the Company’s expense, shall cause the accountant, as the case may be, to perform the calculations and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives the disputed calculations. Such accountant’s calculation, as the case may be, shall be binding upon all parties absent demonstrable error.

(19)         NOTICES; PAYMENTS.

(a)                Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with the Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Note, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder of any adjustment of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment.

(b)               Payments. Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, such payment shall be made in lawful money of the United States of America by a check drawn on the account of the Company and sent via overnight courier service to such Person at such address as previously provided to the Company in writing (which address, in the case of each of the initial Holder of this Note, shall initially be as set forth on the signature page to the Purchase Agreement); provided that the Holder may elect to receive a payment of cash via wire transfer of immediately available funds by providing the Company with prior written notice setting out such request and the Holder’s wire transfer instructions. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day. Any amount of Principal or other amounts due under the this Note or the Transaction Documents, other than Interest, which is not paid when due shall result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount at the rate of five percent (5%) per annum from the date such amount was due until the same is paid in full (“Late Charge”).

(20)        CANCELLATION. After all Principal, accrued Interest and other amounts at any time owed on this Note have been paid in full, this Note shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.

(21)        WAIVER OF NOTICE. To the extent permitted by law, the Company hereby waives demand, notice, presentment, protest and all other demands and notices (other than the notices expressly provided for in this Note) in connection with the delivery, acceptance, default or enforcement of this Note and the Purchase Agreement.

(22)        GOVERNING LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York.

(23)         CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:

(a)                [Intentionally omitted.]

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

(c)                “Change of Control” means the consummation of any transaction described in clauses (i) through (v) of the definition of “Major Event” in Section 2(d)(i).

(d)               “Closing Sale Price” means, as of any date, the last closing trade price for the Common Stock on the Eligible Market representing the principal securities exchange or trading market for the Common Stock, as reported by Bloomberg, or, if such Eligible Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no Eligible Market is the principal securities exchange or trading market for the Common Stock, the last closing trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group, Inc. or any successor thereto. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder.

(e)                “Common Stock” means the shares of the Company’s common stock, par value $0.001 per share, and any other securities of the Company which may be issued or issuable with respect to, in exchange for, or in substitution of, such shares of common stock (including without limitation, by way of recapitalization, reclassification, reorganization, merger or otherwise).

(f)                “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.

(g)               “Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for Common Stock.

(h)               “Eligible Market” means The New York Stock Exchange (NYSE), the NYSE American, or The Nasdaq Stock Market, or their successors.

(i)                “Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

(j)                “GAAP” means United States generally accepted accounting principles, consistently applied, or successor conventions.

(k)               “Indebtedness” of any Person means, without duplication (a) all indebtedness for borrowed money, (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including, without limitation, “capital leases” in accordance with GAAP (other than trade payables entered into in the ordinary course of business), (c) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (f) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (g) any amount raised by acceptance under any acceptance credit facility, (h) receivables sold or discounted (other than within the framework of factoring, securitization or similar transaction where recourse is only to such receivables or proceeds), (i) any derivative transaction, (j) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (excluding commercial letters of credit issued in the ordinary course of business), (k) all indebtedness referred to in clauses (a) through (j) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (l) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (k) above.

(l)                “Options” means any rights, warrants or options to subscribe for or purchase Common Stock or Convertible Securities.

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

(n)               “Reclassification” means any reclassification or change of shares of Common Stock issuable upon conversion of this Note (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination).

(o)               “Rule 144” means Rule 144 promulgated under the Securities Act and any successor provision thereto.

(p)               “SEC” means the United States Securities and Exchange Commission.

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

(r)                 “Subsidiary” means with respect to any Person, any corporation, association or other business entity of which 50% or more of the total voting power of equity entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees or other governing body thereof is at the time owned or controlled by such Person (regardless of whether such equity is owned directly or through one or more other Subsidiaries of such Person or a combination thereof).

(s)                “Successor Entity” means the Person, which may be the Company, formed by, resulting from or surviving any Change of Control or the person with which such Change of Control transaction shall have been made. In the event that the Person resulting from or surviving any Change of Control is a Subsidiary, Successor Entity shall be the parent of such Subsidiary.

(t)                 “Transaction Documents” has the meaning given to such term in the Purchase Agreement.

[Signature page follows]

IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the Issuance Date set out above.

EXHIBIT I

CAREVIEW COMMUNICATIONS, INC.
CONVERSION NOTICE

Reference is made to the Convertible Note (the “Note”) issued to the undersigned by CareView Communications, Inc. (the “Company”). In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into shares of Common Stock par value $0.001 per share (the “Common Stock”) of the Company, as of the date specified below.

CAREVIEW COMMUNICATIONS, INC. 8-K

EXHIBIT 10.45

Execution Version

SIXTH AMENDMENT TO CREDIT AGREEMENT

SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 6, 2020, 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”), PDL INVESTMENT HOLDINGS, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company (both in its capacity as the lender (the “Initial Lender”) and in its capacity as Agent (solely in such capacity as Agent, the “Agent”)) under the Credit Agreement (as defined below) and Steven G. Johnson and Dr. James R. Higgins (each, an individual), as lender (collectively, the “Tranche Three Lender” and, together with the Initial Lender, the “Lenders”).

W I T N E S S E T H

WHEREAS Holdings, the Borrower, the Initial Lender and the Agent have entered into that certain Credit Agreement dated as of June 26, 2015 (as amended by this Amendment and as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”); and

WHEREAS, the Borrower the Agent and the Lenders wish to amend the Credit Agreement as set forth herein.

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 Credit Agreement.

Article II.
AMENDMENTS

2.1          Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in Section 2.2 hereof, the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as follows:

(a)           Amendments to Section 1.1:

“Additional Tranche Three Funding Date” means the date on which the conditions set forth in Section 4.4 have been satisfied or waived by the Agent in its sole discretion and the additional Tranche Three Loan is funded, which date shall occur no later than February 6, 2020.

“Additional Tranche Three Loan” means the term loan from the Tranche Three Lender on the Additional Tranche Three Funding Date pursuant to Section 2.1.1(c).

“HealthCor Note and Warrant Purchase Agreement” means the Note and Warrant Purchase Agreement dated as of April 21, 2011, among Holdings, HealthCor Partners Fund, L.P., HealthCor Hybrid Offshore Master Fund, L.P., and the other investors party thereto, as amended pursuant to the First Amendment dated December 30, 2011, the Second Amendment dated January 31, 2012, the Third Amendment dated August 20, 2013, the Fourth Amendment dated January 16, 2014, the Fifth Amendment dated December 15, 2014, the Sixth Amendment dated March 31, 2015, the Seventh Amendment dated as of June 26, 2015, the Eighth Amendment dated as of February 23, 2018, the Ninth Amendment dated as of July 10, 2018, and as further amended, restated, supplemented or otherwise modified pursuant to (i) the Tenth Amendment to Note and Warrant Purchase Agreement dated as of July 13, 2018, (ii) the Eleventh Amendment to Note and Warrant Purchase Agreement dated as of March 27, 2019, (iii) the Twelfth Amendment to Note and Warrant Purchase Agreement dated as of May 15, 2019, and (iv) the Thirteenth Amendment to Note and Warrant Purchase Agreement dated as of February 6, 2020, and (v) the terms of the Intercreditor Agreement, as amended.

“Initial Tranche Three Funding Date” means May 15, 2019, the date on which the initial Tranche Three Loan was funded.

“Initial Tranche Three Loan” means the term loan from the Tranche Three Lender on the Initial Tranche Three Funding Date pursuant to Section 2.1.1(c).

“Sixth Amendment” means that certain Sixth Amendment to Credit Agreement dated as of February 6, 2020 by and among Holdings, the Borrower, the Lender, the Tranche Three Lender and the Agent.

“Tranche Three Commitment” means, as to the Tranche Three Lender, the Tranche Three Lender’s commitment to provide the Tranche Three Loan in the aggregate principal amount of $700,000, (i) $200,000 on the Initial Tranche Three Funding Date and (ii) $500,000 on the Additional Tranche Three Funding Date, pursuant to Section 2.1.1(c).

“Tranche Three Funding Date” means the date on which the conditions set forth in Section 4.4 have been satisfied or waived by the Agent in its sole discretion and the Tranche Three Loan is funded, which date shall occur no later than May 15, 2019.

“Tranche Three Loan” means, collectively, the term loan loans from the Tranche Three Lender pursuant to Section 2.1.1(c).

(b)           Amendments to Section 2.1.1(c):

(c)(i) on the Initial Tranche Three Funding Date, the entire amount of its Tranche Three Commitment $200,000 and (ii) on the Additional Tranche Three Funding Date, $500,000, after which the Tranche Three Commitment shall terminate in full.

(c)           Amendments to Section 2.3.1(c):

(c) The Borrower promises to pay interest on the unpaid principal amount of (i) the Initial Tranche Three Loan for the period commencing on the Initial Tranche Three Funding Date until such Tranche Three Loan is Paid in Full and (ii) the Additional Tranche Three Loan for the period commencing on the Additional Tranche Three Funding Date until such Tranche Three Loan is Paid in Full, in each case at a rate payable in cash per annum equal to 15.5%.

(d)           Amendments to Section 2.3.2(c):

(c) Subject to Section 2.7, interest accrued on the Tranche Three Loan during the period from the Initial Tranche Three Funding Date or the Additional Tranche Three Funding Date, as applicable, until the Tranche Three Maturity Date shall accrue and be payable in cash (subject to Section 2.7) quarterly on each Interest Payment Date, in arrears, and, to the extent not paid in advance, upon a prepayment of the Tranche Three Loan in accordance with Section 2.4 and on the Tranche Three Maturity Date, in each such case, in cash. Subject to Section 2.7, after the Tranche Three Maturity Date and at any time an Event of Default exists, all accrued interest on the Tranche Three Loan shall be payable in cash on demand at the rates specified in Section 2.3.1.

(e)           Amendments to Section 7.1(f):

(f) HealthCor Obligations in an aggregate principal amount not to exceed the aggregate principal amount of the HealthCor Notes outstanding as of May 15, 2019 February 6, 2020, plus accrued interest thereon that is paid-in-kind and added to the principal balance thereof in accordance with the terms of the HealthCor Debt Documents, and any Permitted Refinancing thereof so long as concurrently with the closing of any such Permitted Refinancing the lenders or investors (or any agent with the power to enter into a binding obligation on behalf of such lenders or investors) in respect of such Permitted Refinancing enter into an intercreditor agreement satisfactory in form and substance to the Agent;

2.2         Conditions to Effectiveness. This Amendment shall become effective on the date that each of the following conditions are satisfied (the “Amendment Effective Date”):

(a)           receipt by the Agent of counterparts of this Amendment which shall be collectively executed by each of the Borrower, the Lenders and the Agent;

(b)           the Borrower shall have received the proceeds from the sale of additional notes under the HealthCor Note and Warrant Purchase Agreement in an aggregate amount of not less than $100,000;

(c)           receipt by the Agent of a fully executed Nineteenth Amendment to the Modification Agreement in form and substance satisfactory to the Agent; and

(d)           the Borrower shall have paid to the Agent all costs and expenses of the Agent and the Lenders (including the fees, costs and expenses of legal counsel incurred in connection with the transactions contemplated under this Amendment) incurred in connection with the transactions contemplated by this Amendment.

Article III.
MISCELLANEOUS

3.1           Loan Document. This Amendment 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.

3.2           Effect of Amendment. Except as expressly set forth herein, this Amendment 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 the Borrower to any future consent, 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 Lenders 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.

3.3           Reaffirmation. The Borrower hereby reaffirms the Obligations under each Loan Document to which it is a party. 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 Security 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.

3.4           Counterparts. This 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 Amendment by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

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

3.6           Successors and Assigns. This 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).

3.7           Governing Law. This Amendment SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

3.8           Severability. The illegality or unenforceability of any provision of this 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 Amendment or any instrument or agreement required hereunder.

3.9           Release of Claims. In consideration of the Lenders’ and Agent’s agreements contained in this Amendment, the Borrower hereby releases and discharges each 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 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; provided however, that this release shall not apply to future claims or causes of action by the Borrower.

3.10         Tranche Three Lender. The Tranche Three Lender and the Administrative Agent, for the benefit of the Secured Parties, hereby agree as follows: The Tranche Three Lender (x) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby, (ii) it has received copies of the Credit Agreement and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and make the Additional Tranche Three Loan, and (iii) it has, independently and without reliance upon the Agent or the Initial Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and make the Additional Tranche Three Loan, and (y) agrees that (i) it will, independently and without reliance on the Agent or the Initial Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis and decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as the Tranche Three Lender.

[Signature page follows]

Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.

Sixth Amendment to Credit Agreement 

CAREVIEW COMMUNICATIONS, INC. 8-K

EXHIBIT 10.46

TRANCHE THREE TERM NOTE

February 6, 2020

FOR VALUE RECEIVED, the undersigned, CAREVIEW COMMUNICATIONS, INC., a Texas corporation (the “Borrower”), hereby unconditionally promises to pay to                         , an individual (a “Tranche Three Lender”), at the address specified in the Credit Agreement (as hereinafter defined; each capitalized term used and not otherwise defined herein having the meaning assigned to it in the Credit Agreement) in lawful money of the United States and in immediately available funds, the unpaid amount of the Obligations relating to the Tranche Three Loan outstanding under the Credit Agreement. Amounts evidenced hereby shall be paid in the amounts and on the dates specified in Section 2 of the Credit Agreement. Any principal amount of this Note prepaid or repaid may not be reborrowed. The outstanding principal balance of this Note together with all accrued and unpaid interest thereon shall be due and payable on the Tranche Three Maturity Date.

This Note (a) is one of the Notes referred to in the Credit Agreement dated as of June 26, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, CareView Communications, Inc., a Nevada corporation and the direct parent of the Borrower (“Holdings”), PDL Investment Holdings, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company, as Lender and as Agent, and any other entities from time to time party thereto and (b) is subject to the provisions of the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof. Borrower acknowledges and agrees that Lender, as Agent, may exercise all rights provided in the Loan Documents with respect to this Note.

Upon the occurrence and during the continuance of any one or more of the Events of Default, all Obligations under the Credit Agreement as evidenced by this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.

All parties now and hereafter liable with respect to this Note, whether as maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE CREDIT AGREEMENT.

This Note shall be governed by, and construed and interpreted 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 (other than Section 5-1401 of the New York General Obligations Law).

CAREVIEW COMMUNICATIONS, INC. 8-K

EXHIBIT 10.47

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.

WARRANT TO PURCHASE COMMON STOCK OF

CAREVIEW COMMUNICATIONS, INC.

CareView Communications, Inc., a Nevada corporation (the “Company”), for value received, hereby certifies that Dr. James R. Higgins, or his 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 February 6, 2030 (the “Expiration Date”), up to One Million (1,000,000) shares, as adjusted from time to time pursuant to the provisions of this Warrant (this “Warrant”), of common stock of the Company, par value $0.001 (“Common Stock”), at an exercise price equal to $0.01. 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 in connection with the Registered Holder’s Tranche Three Loan (as defined in the Credit Agreement) to CareView Communications, Inc., a Texas corporation and a wholly owned subsidiary of the Company (the “Borrower”), made as of February 6, 2020, pursuant to that certain Credit Agreement dated as of June 26, 2015, as amended, including by that certain Sixth Amendment to Credit Agreement, dated as of February 6, 2020 (as amended, the “Credit Agreement”), by and among the Company, the Borrower, PDL Investment Holdings, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company (as the Initial Lender and as Agent (each as defined in the Credit Agreement)) and Steven G. Johnson and the Registered Holder, individually (each, as a Tranche Three Lender (as defined in the Credit Agreement)).

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 cash, check or wire transfer of immediately available funds to the Company.

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 five 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 second 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 shares 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 thereof and had thereafter, during the period from the date thereof 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 Assignment in the form attached hereto as Exhibit B 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 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 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.

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

Signature Page to Warrant to Purchase Common Stock of CareView Communications, Inc.

Acknowledged and Agreed:

REGISTERED HOLDER:

Signature Page to Warrant to Purchase Common Stock of CareView Communications, Inc.

EXHIBIT A

NOTICE OF EXERCISE

WARRANT TO PURCHASE COMMON STOCK OF CAREVIEW COMMUNICATIONS, INC.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the Warrant of CareView Communications, Inc. dated February 6, 2020 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 = Y (A-B)           (        ) = (        ) [(        ) – (        )]

A                                       (_____)

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):

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 shares of Warrant Stock shall not be all of the shares of Warrant Stock purchasable under the Warrant, a new Warrant is to be issued in the name of said undersigned for the balance remaining of the shares of Warrant Stock purchasable thereunder.

Notice of Exercise

EXHIBIT B

ASSIGNMENT

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