AMENDED
CERTIFICATE OF
DESIGNATION
OF
SERIES
F CONVERTIBLE PREFERRED STOCK
OF
RENNOVA HEALTH, INC.
(Pursuant
to Section 151 of the
Delaware
General Corporation Law)
Rennova
Health, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), in
accordance with the provisions of Section 103 thereof, does hereby certify that:
FIRST:
A Certificate of Designation of Series F Convertible Preferred Stock was originally filed with the Secretary of State of the
State of Delaware on December 29, 2016.
SECOND
:
An Amended Certificate of Designation of Series F Convertible Preferred Stock was filed with the Secretary of State of the
State of Delaware on August 16, 2017.
THIRD
:
No shares of Series F Convertible Preferred Stock have been issued as of the date of this Amended Certificate
of Designation.
FOURTH
:
The Board of Directors of the Corporation duly adopted the following resolutions on September 20, 2017:
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RESOLVED
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That
the designation and amount, and relative rights, preferences, voting powers and other special rights of the shares of the
Corporation’s Series F Convertible Preferred Stock, and the qualifications, limitations or restrictions thereof, shall
be amended and restated as set forth in
Exhibit A
attached hereto.
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RESOLVED
:
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That
any officer of the Corporation be, and they hereby are, authorized and directed, in the name and on behalf of the Corporation,
to file the Amended Certificate of Designation in accordance with the provisions of Delaware General Corporation Law and to
take such actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolution.
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FIFTH
:
The aforesaid resolutions were duly and validly adopted in accordance with the applicable provisions of Section 151 of the General
Corporation Law of the State of Delaware and the Certificate of Incorporation and By-Laws of the Corporation.
IN
WITNESS WHEREOF
, the Corporation has caused this Amended Certificate of Designation to be executed by its Chief Executive
Officer, this 21
st
day of September, 2017.
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RENNOVA
HEALTH, INC.
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By:
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/s/
Seamus Lagan
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Name:
Seamus Lagan
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Title:
Chief Executive Officer
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Exhibit
A
1.
Designation and Amount
. The shares of such series shall be designated as “
Series F Convertible Preferred Stock
”
(the “
Series F Preferred Stock
”) and the number of shares constituting the Series F Preferred Stock shall be
1,750,000. Such number of shares may be decreased by resolution of the Board adopted and filed pursuant to the DGCL, Section 151(g),
or any successor provision; provided, that no such decrease shall reduce the number of authorized shares of Series F Preferred
Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise
of outstanding options, warrants, convertible or exchangeable securities or other rights to acquire shares of Series F Preferred
Stock. Each share of Series F Preferred Stock shall have a stated value equal to $1.00.
2.
Ranking
. With respect to (a) dividends (as provided in Section 3 below), the Series F Preferred Stock shall rank (i) on
parity with the Corporation’s (x) common stock, par value $0.01 per share (“
Common Stock
”), (y) Series
G Convertible Preferred Stock, par value $0.01 per share (the “
Series G Preferred Stock
”), and (z) Series H
Convertible Preferred Stock, par value $0.01 per share (the “
Series H Preferred Stock
”); (ii) senior to any
class or series of preferred stock of the Corporation hereafter created not specifically ranking by its terms senior to or on
a parity with the Series F Preferred Stock; and (iii) junior to any other class or series of preferred stock of the Corporation
hereafter created specifically ranking by its terms senior to the Series F Preferred Stock; and (b) a Liquidation Event (as defined
below), (1) on parity with the Common Stock, (2) senior to any class or series of preferred stock of the Corporation hereafter
created not specifically ranking by its terms senior to or on a parity with the Series F Preferred Stock; and (3) junior to the
Series G Preferred Stock and the Series H Preferred Stock and any other class or series of preferred stock of the Corporation
created concurrently herewith or hereafter created specifically ranking by its terms senior to the Series F Preferred Stock.
3.
Dividends
. From and after the date of the issuance of any shares of Series F Preferred Stock (“Original Issuance
Date”), each holder of outstanding shares of Series F Preferred Stock shall be entitled to receive on account of such shares
(participating pari passu with the holders of Common Stock), dividends in cash out of any funds of the Corporation legally available
for the payment thereof, at the same time any cash dividend will be paid or declared and set apart for payment on any shares of
any Common Stock, in an amount equal to the amount which such holder would have been entitled to receive if such Series F Preferred
Stock were converted to Common Stock under Section 6(a) on the date such dividend is paid or declared and set apart for payment
(assuming for purposes of this Section 3 that all outstanding shares of Series F Preferred Stock are convertible on such date).
4.
Voting Rights
. Each holder of outstanding shares of Series F Preferred Stock shall be entitled to vote on all matters submitted
to a vote of the holders of the Common Stock. Each share of Series F Preferred Stock shall have one (1) vote, except as otherwise
required by law. Except as provided by law, holders of Series F Preferred Stock shall vote together with the holders of Common
Stock as a single class.
5.
Liquidation Rights
. Upon any liquidation, dissolution or winding up of the Corporation (each, a “
Liquidation Event
”),
whether voluntary or involuntary, each holder of outstanding shares of Series F Preferred Stock shall be entitled to receive and
to be paid out of the assets of the Corporation available for distribution to its stockholders (participating pari passu with
the holders of Common Stock), the amount which such holder would have been entitled to receive if such Series F Preferred Stock
were converted into Common Stock under Section 6 on the date of such liquidation event (the “
Liquidation Preference
”)
assuming for purpose of this Section 5 that all outstanding shares of Series F Preferred Stock are convertible on such date).
From and after the distribution of such amount, such holder’s shares of Series F Preferred Stock shall no longer be deemed
to be outstanding, and all rights of such holder relating to such shares shall cease and terminate.
6.
Conversion
.
(a)
Right to Convert
. Subject to the terms and conditions of this Section 6, each holder of outstanding shares of Series F
Preferred Stock shall have the right to convert, at any time after the first anniversary of the Original Issuance Date, some or
all of the outstanding shares of Series F Preferred Stock then held by such holder into that number of fully-paid and non-assessable
shares of Common Stock determined by dividing (i) the number of such shares of Series F Preferred Stock to be converted by (ii)
the Conversion Price (as defined below) as of the time of such conversion. Such right of conversion shall be exercised by a holder
of outstanding shares of Series F Preferred Stock by delivery of a written notice to the Corporation stating that the holder elects
to convert a stated number of shares of Series F Preferred Stock into Common Stock and by surrender of a certificate or certificates
for the shares so to be converted (the “
Conversion Certificates
”) to the Corporation at its principal office
(or such other office or agency of the Corporation as the Corporation may designate by notice in writing to the holders of outstanding
shares of the Series F Preferred Stock) at any time during its usual business hours on the date set forth in such notice.
For
purposes of this Section 6(a), the “Conversion Price” shall be, as of any specified date with respect to any share
of Common Stock, the greater of (A) $1.95 or (B), (i) if the Common Stock is traded on a national securities exchange, the average
closing sales price of the Common Stock reported on the exchange for the 10 trading days immediately preceding the Conversion
Date (as defined below); or (ii) if the Common Stock is not listed on any national securities exchange but is quoted on an inter-dealer
quotation system, the average of the bid and ask prices for the Common Stock for the 10 trading days immediately preceding the
Conversion Date.
(b)
Issuance of Certificate; Time Conversion Effected
. Promptly after the receipt of the written notice referred to in Section
6(a) and the surrender of the Conversion Certificates as provided in Section 6(a), the Corporation shall issue and deliver to
a holder exercising conversion rights under Section 6(a), at such holder’s address as it shall appear on the records of
the Corporation, (i) a certificate or certificates representing that number of fully-paid non-assessable shares of Common Stock
issuable upon the conversion of such shares of Series F Preferred Stock pursuant to Section 6(a) and (ii) to the extent that such
holder exercises his, her or its right to convert some but not all of the outstanding shares of Series F Preferred Stock then
held by such holder pursuant to Section 6(a), a certificate or certificates for that number of shares of Series F Preferred Stock
represented by the Conversion Certificates for which such holder is not exercising his, her or its conversion rights under Section
6(a) (if any). Such conversion shall be deemed to have been effected as of the date on which the written notice delivered pursuant
to Section 6(a) is actually received by the Corporation and the Conversion Certificates shall have been duly surrendered (the
“
Conversion Date
”). All dividends accrued but unpaid with respect to any shares of Series F Preferred Stock
converted under Section 6(a) shall he paid in cash within seven (7) days following the date on which such shares are converted
(unless there are no legally available funds with which to make such cash payment, in which event such cash payment shall be made
as soon as possible).
(c)
Effect of Subdivision or Combination of Common Stock on Conversions
. In case the Corporation shall at any time from and
after the Original Issuance Date subdivide by stock split, stock dividend, or otherwise its outstanding shares of Common Stock
into a greater number of shares, the number of shares of Common Stock into which the Series F Preferred Stock is convertible shall
be proportionately increased; in case the Corporation shall at any time combine (by reverse stock split or otherwise) its outstanding
shares of Common Stock into a lesser number of shares, the number of shares of Common Stock into which the Series F Preferred
Stock is convertible shall be proportionately decreased.
(d)
Reorganization or Reclassification
. If any capital reorganization or reclassification of the capital stock of the Corporation
shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities, or assets with respect
to or in exchange for Common Stock, then, as a condition of such reorganization or reclassification, lawful and adequate provisions
shall be made whereby each holder of shares of Series F Preferred Stock shall upon conversion of the Series F Preferred Stock
as described in this Certificate of Designation have the right to receive, upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately therefor receivable upon the conversion of such share or shares of
Series F Preferred Stock, such shares of stock, securities, or assets as may be issued or payable with respect to or in exchange
for a number of outstanding shares of Common Stock equal to the number of shares of such Common Stock immediately receivable upon
such conversion had such reorganization or reclassification not taken place. In any such case, appropriate provisions shall he
made with respect to the rights and interests of such holder to the end that the provisions hereof shall thereafter be applicable,
as nearly as may be, in relation to any shares of stock, securities, or assets thereafter deliverable upon the exercise of such
conversion rights.
(e)
Mandatory Conversion; Cancellation
. Any shares of Series F Preferred Stock outstanding on the fifth anniversary of the
Original Issuance Date (the “
Mandatory Conversion Date
”) shall he automatically converted into that number
of fully-paid non-assessable shares of Common Stock which the holder thereof would have been entitled to receive had such shares
of Series F Preferred Stock been converted into Common Stock pursuant to Section 6(a) on the Mandatory Conversion Date. All certificates
evidencing the shares of Series F Preferred Stock held by a holder shall, on the Mandatory Conversion Date or such earlier date
on which such certificates are so surrendered for conversion, be deemed to have been retired and canceled and the shares of Series
F Preferred Stock represented thereby converted into shares of Common Stock as described above for all purposes. Upon the mandatory
conversion of shares of Series F Preferred Stock pursuant to this Section 6(e), all accrued but unpaid dividends thereon shall
be paid in cash within seven (7) days following the date on which such shares are converted (unless there are no legally available
funds with which to make such cash payment, in which event such cash payment shall be made as soon as possible). The Corporation
shall, promptly following the Mandatory Conversion Date, or such earlier date as the certificates representing all of the shares
of Series F Preferred Stock held by a holder shall have been duly surrendered by such holder pursuant to this Section 6(e), issue
and deliver to such holder, at such holder’s address as it shall appear on the records of the Corporation, a certificate
or certificates representing that number of fully-paid non-assessable shares of Common Stock issuable upon conversion of such
shares pursuant to this Section 6(e).
7.
Redemption
.
(a)
Optional Redemption By Corporation
. At any time from and after the first anniversary of the Original Issuance Date, the
Corporation has the right to redeem all or any portion of the then outstanding shares of Series F Preferred Stock (a “
Redemption
”)
for a price per share equal to $1.95 for such share plus any accrued but unpaid dividends on such share (the “
Redemption
Price
”). Any such Redemption will occur not more than sixty (60) days following delivery by the Corporation of a written
election notice containing the information set forth in Section 7(b) below (the “
Redemption Election Notice
”)
to the holders of the shares of Series F Preferred Stock to be redeemed. The Corporation is not required to redeem the shares
of the Series F Preferred Stock proportionately and may redeem shares held by one holder or any number of holders in combination.
The allocation among the holders or shares of Series F Preferred Stock to be redeemed is solely at the discretion of the Corporation.
In exchange for the surrender to the Corporation by the respective holders of Series F Preferred Stock of their certificate or
certificates representing such shares in accordance with Section 7(c) below, the aggregate Redemption Price for all shares held
by each holder of shares of Series F Preferred Stock being redeemed will be payable in cash in immediately available funds to
the respective holders of the Series F Preferred Stock on the applicable Redemption Date.
(b)
Redemption Notice
. In a Redemption Election Notice delivered pursuant to Section 7(a), the Corporation shall state: (a)
the number of shares of Series F Preferred Stock held by the holder that the Corporation will redeem on the Redemption Date; (b)
the Redemption Price; (c) the date of the closing of the redemption (the “Redemption Date”); and (d) the manner and
place designated for surrender by the holder to the Corporation of such holder’s certificates representing the shares of
Series F Preferred Stock to be redeemed.
(c)
Surrender of Certificates
. On or before the Redemption Date, each applicable holder of shares of Series F Preferred Stock
shall surrender the certificate or certificates representing such shares to the Corporation, in the manner and place designated
in the Redemption Election Notice, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed
stock powers relating thereto), or, in the event the certificate or certificates are lost, stolen or missing, shall deliver an
affidavit of loss, in the manner and place designated in the Redemption Election Notice. The Corporation shall cancel and retire
each surrendered certificate and shall thereafter make payment of the applicable Redemption Price by certified check or wire transfer
to the holder of record of such certificate.
(d)
Rights Subsequent to Redemption
. If, on the applicable Redemption Date, the Redemption Price is paid (or tendered for payment)
for any of the shares to be redeemed on such Redemption Date, then on such date all rights of the holder in the shares so redeemed
and paid or tendered will cease, and such shares will no longer be deemed issued and outstanding.
8.
Transfer
. Other than to other holders of the Series F Preferred Stock, no share of Series F Preferred Stock or any interest
therein may be validly sold, assigned, awarded, pledged, encumbered, disposed or otherwise transferred, for consideration or otherwise,
whether voluntarily, involuntarily or by operation of law (collectively, a “Transfer”), unless the holder receives
from the Corporation its prior written consent to such Transfer. Any attempt to Transfer that requires consent without such consent
by the Corporation shall he null and void in all respects and the purported transferee shall not he recognized by the Corporation
as a holder of Series F Preferred Stock for any purpose whatsoever.
9.
Covenants
. So long as any shares of the Series F Preferred Stock are outstanding, the Corporation shall not amend, alter
or repeal any provisions of the Certificate of Incorporation, this Certificate or the Bylaws of the Corporation in a manner that
materially adversely affects the powers, preferences or rights of the Series F Preferred Stock.
10.
Notices
. All notices or communications given hereunder shall he in writing and if to the Corporation, shall be delivered
to it at its principal executive offices and, if to any holder of Series F Preferred Stock, shall be delivered to such holder
at such holder’s address as it appears on the stock books of the Corporation.
11.
Waiver
. Any of the rights, powers, preferences and other terms of the Series F Preferred Stock set forth herein may be
waived on behalf of all holders of Series F Preferred Stock by the affirmative written consent of stockholders holding a majority
of the shares of the Series F Preferred Stock.
SUBSIDIARY
GUARANTEE
SUBSIDIARY
GUARANTEE, dated as of September 19, 2017 (this “
Guarantee
”), made by each of the signatories hereto
(together with any other entity that may become a party hereto as provided herein, the “
Guarantors
”), in favor
of the purchasers and investors, as applicable, signatory (together with their permitted assigns, the “
Purchasers
”)
to that certain Securities Purchase Agreement (“
Purchase Agreement
”), dated as of the date hereof, between
Rennova Health, Inc., a Delaware corporation (the “
Company
”) and the purchasers and those certain Securities
Exchange Agreements (“
Exchange Agreement
”), dated as of the date hereof, by and between the Company
and the investors signatory thereto.
W
I T N E S S E T H:
WHEREAS,
pursuant to that certain Securities Purchase Agreement, dated as of the date hereof, by and between the Company and the purchasers
signatory thereto (the “
Purchase Agreement
”) and the Securities Exchange Agreements, dated as of the
date hereof, by and between the Company and the Investors signatory thereto, the Company has agreed to sell and issue to the Purchasers,
and the Purchasers have agreed to purchase from the Company the Debentures, subject to the terms and conditions set forth therein;
and
WHEREAS,
each Guarantor will directly benefit from the extension of credit to the Company represented by the issuance of the Debentures;
and
NOW,
THEREFORE, in consideration of the premises and to induce the Purchasers to enter into the Purchase Agreement and the Exchange
Agreement and to carry out the transactions contemplated thereby, each Guarantor hereby agrees with the Purchasers as follows:
1.
Definitions
. Unless otherwise defined herein, terms defined in the Purchase Agreement and the Exchange Agreement and used
herein shall have the meanings given to them in the Purchase Agreement and the Exchange Agreement. The words “hereof,”
“herein,” “hereto” and “hereunder” and words of similar import when used in this Guarantee
shall refer to this Guarantee as a whole and not to any particular provision of this Guarantee, and Section and Schedule references
are to this Guarantee unless otherwise specified. The meanings given to terms defined herein shall be equally applicable to both
the singular and plural forms of such terms. The following terms shall have the following meanings:
“
Guarantee
”
means this Subsidiary Guarantee, as the same may be amended, supplemented or otherwise modified from time to time.
“
Obligations
”
means, in addition to all other costs and expenses of collection incurred by Purchasers in enforcing any of such Obligations and/or
this Guarantee, all of the liabilities and obligations (primary, secondary, direct, contingent, sole, joint or several) due or
to become due, or that are now or may be hereafter contracted or acquired, or owing to, of the Company or any Guarantor to the
Purchasers, including, without limitation, all obligations under this Guarantee, the Debentures and any other instruments, agreements
or other documents executed and/or delivered in connection herewith or therewith, in each case, whether now or hereafter existing,
voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all
or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from any of the Purchasers as a preference, fraudulent transfer or otherwise as such obligations may be
amended, supplemented, converted, extended or modified from time to time. Without limiting the generality of the foregoing, the
term “Obligations” shall include, without limitation: (i) principal of, and interest on the Debentures and the loans
extended pursuant thereto; (ii) any and all other fees, indemnities, costs, obligations and liabilities of the Company or any
Guarantor from time to time under or in connection with this Guarantee, the Debentures and any other instruments, agreements or
other documents executed and/or delivered in connection herewith or therewith; and (iii) all amounts (including but not limited
to post-petition interest) in respect of the foregoing that would be payable but for the fact that the obligations to pay such
amounts are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving
the Company or any Guarantor. Notwithstanding anything herein to the contrary, any liability or obligations relating to a transaction
that is not related, directly or indirectly to the Transaction Documents or any future loan facility shall not be deemed an Obligation
hereunder.
2.
Guarantee
.
(a)
Guarantee
.
(i)
The Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantee to the Purchasers and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(ii)
Anything herein or in any other Transaction Document to the contrary notwithstanding, the maximum liability of each Guarantor
hereunder and under the other Transaction Documents shall in no event exceed the amount which can be guaranteed by such Guarantor
under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer
or laws affecting the rights of creditors generally (after giving effect to the right of contribution established in Section 2(b)).
(iii)
Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Purchasers hereunder.
(iv)
The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations
of each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by indefeasible payment in full.
(v)
No payment made by the Company, any of the Guarantors, any other guarantor or any other Person or received or collected by the
Purchasers from the Company, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor in respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are indefeasibly paid in full.
(vi)
Notwithstanding anything to the contrary in this Guarantee, with respect to any defaulted non-monetary Obligations the specific
performance of which by the Guarantors is not reasonably possible (e.g. the issuance of the Company’s Common Stock), the
Guarantors shall only be liable for making the Purchasers whole on a monetary basis for the Company’s failure to perform
such Obligations in accordance with the Transaction Documents.
(b)
Right of Contribution
. Subject to Section 2(c), each Guarantor hereby agrees that to the extent that a Guarantor shall
have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s
right of contribution shall be subject to the terms and conditions of Section 2(c). The provisions of this Section 2(b) shall
in no respect limit the obligations and liabilities of any Guarantor to the Purchasers and each Guarantor shall remain liable
to the Purchasers for the full amount guaranteed by such Guarantor hereunder.
(c)
No Subrogation
. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any
Guarantor by the Purchasers, no Guarantor shall be entitled to be subrogated to any of the rights of the Purchasers against the
Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Purchasers for the payment
of the Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or
any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Purchasers by the
Company on account of the Obligations are indefeasibly paid in full. If any amount shall be paid to any Guarantor on account of
such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by
such Guarantor in trust for the Purchasers, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by
such Guarantor, be turned over to the Purchasers in the exact form received by such Guarantor (duly indorsed by such Guarantor
to the Purchasers, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Purchasers
may determine.
(d)
Amendments, Etc. With Respect to the Obligations
. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for
payment of any of the Obligations made by the Purchasers may be rescinded by the Purchasers and any of the Obligations continued,
and the Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the Purchasers, and the Purchase Agreement, Exchange Agreement
and the other Transaction Documents and any other documents executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Purchasers may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Purchasers for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchasers shall have no obligation to protect, secure, perfect or insure any Lien at any time held
by them as security for the Obligations or for the guarantee contained in this Section 2 or any property subject thereto.
(e)
Guarantee Absolute and Unconditional
. Each Guarantor waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the Purchasers upon the guarantee contained in this Section 2
or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in
this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Purchasers, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this
Section 2. Each Guarantor waives to the extent permitted by law diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands
and agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee
of payment and performance without regard to (a) the validity or enforceability of the Purchase Agreement, Exchange Agreement
or any other Transaction Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset
with respect thereto at any time or from time to time held by the Purchasers, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance or fraud by Purchasers) which may at any time be available to or be asserted by the Company
or any other Person against the Purchasers, or (c) any other circumstance whatsoever (with or without notice to or knowledge of
the Company or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the
Company for the Obligations, or of such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Purchasers may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as
they may have against the Company, any other Guarantor or any other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and any failure by the Purchasers to make any such demand, to pursue
such other rights or remedies or to collect any payments from the Company, any other Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Company, any other
Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of
any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Purchasers against any Guarantor. For the purposes hereof, “demand” shall include the commencement
and continuance of any legal proceedings.
(f)
Reinstatement
. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned
by the Purchasers upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
(g)
Payments
. Each Guarantor hereby guarantees that payments hereunder will be paid to the Purchasers without set-off or counterclaim
in U.S. dollars at the address set forth or referred to in the Signature Pages to the Purchase Agreement or the Exchange Agreement,
as applicable.
3.
Representations and Warranties
. Each Guarantor hereby makes the following representations and warranties to Purchasers
as of the date hereof:
(a)
Organization and Qualification
. Except as set forth on Schedule I, the Guarantor is a corporation or limited liability
company, duly incorporated or organized, validly existing and in good standing under the laws of the applicable jurisdiction set
forth on Schedule 1, with the requisite corporate or company power and authority to own and use its properties and assets and
to carry on its business as currently conducted. The Guarantor has no subsidiaries other than those identified as such on the
Disclosure Schedules to the Purchase Agreement. The Guarantor is duly qualified to do business and is in good standing as a foreign
corporation or company in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not, individually or in
the aggregate, (x) adversely affect the legality, validity or enforceability of any of this Guaranty in any material respect,
(y) have a material adverse effect on the results of operations, assets, prospects, or financial condition of the Guarantor or
(z) adversely impair in any material respect the Guarantor’s ability to perform fully on a timely basis its obligations
under this Guaranty (a “
Material Adverse Effect
”).
(b)
Authorization; Enforcement
. The Guarantor has the requisite corporate or other power and authority to enter into and to
consummate the transactions contemplated by this Guaranty, and otherwise to carry out its obligations hereunder. The execution
and delivery of this Guaranty by the Guarantor and the consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite corporate or other action on the part of the Guarantor. This Guaranty has been duly executed and delivered
by the Guarantor and constitutes the valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance
with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
(c)
No Conflicts
. The execution, delivery and performance of this Guaranty by the Guarantor and the consummation by the Guarantor
of the transactions contemplated thereby do not and will not (i) conflict with or violate any provision of its Certificate of
Incorporation, or By-laws, articles of organization or operating agreement or (ii) conflict with, constitute a default (or an
event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Guarantor is a party, or (iii) result in
a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Guarantor is subject (including Federal and State securities laws and regulations), or by which any material
property or asset of the Guarantor is bound or affected, except in the case of each of clauses (ii) and (iii), such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations as could not, individually or in the aggregate,
have or result in a Material Adverse Effect. The business of the Guarantor is not being conducted in violation of any law, ordinance
or regulation of any governmental authority, except for violations which, individually or in the aggregate, do not have a Material
Adverse Effect.
(d)
Consents and Approvals
. The Guarantor is not required to obtain any consent, waiver, authorization or order of, or make
any filing or registration with, any court or other federal, state, local, foreign or other governmental authority or other person
in connection with the execution, delivery and performance by the Guarantor of this Guaranty.
(e)
Purchase Agreement
. The representations and warranties of the Company set forth in the Purchase Agreement and the Exchange
Agreement as they relate to such Guarantor, each of which is hereby incorporated herein by reference, are true and correct as
of each time such representations are deemed to be made pursuant to such Purchase Agreement and Exchange Agreement, and the Purchasers
shall be entitled to rely on each of them as if they were fully set forth herein, provided that each reference in each such representation
and warranty to the Company’s knowledge shall, for the purposes of this Section 3, be deemed to be a reference to such Guarantor’s
knowledge.
(f)
Foreign Law
. Each Guarantor has consulted with appropriate foreign legal counsel with respect to any of the above representations
for which non-U.S. law is applicable. Such foreign counsel have advised each applicable Guarantor that such counsel knows of no
reason why any of the above representations would not be true and accurate. Such foreign counsel were provided with copies of
this Subsidiary Guarantee and the Transaction Documents prior to rendering their advice.
4.
Covenants
.
(a)
Each Guarantor covenants and agrees with the Purchasers that, from and after the date of this Guarantee until the Obligations
shall have been indefeasibly paid in full, such Guarantor shall take, and/or shall refrain from taking, as the case may be, each
commercially reasonable action that is necessary to be taken or not taken, as the case may be, so that no Event of Default (as
defined in the Debentures) is caused by the failure to take such action or to refrain from taking such action by such Guarantor.
(b)
So long as any of the Obligations are outstanding, unless Purchasers holding at least 67% of the aggregate principal amount of
the then outstanding Debentures shall otherwise consent in writing, each Guarantor will not directly or indirectly on or after
the date of this Guarantee:
i.
enter into, create, incur, assume or suffer to exist any indebtedness in excess of $100,000 for borrowed money of any kind (other
than any indebtedness existing on the date hereof), including but not limited to, a guarantee, on or with respect to any of its
property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom;
ii.
enter into, create, incur, assume or suffer to exist any liens of any kind, on or with respect to any of its property or assets
now owned or hereafter acquired or any interest therein or any income or profits therefrom, except for any liens existing on the
date hereof;
iii.
amend its certificate of incorporation, bylaws or other charter documents so as to adversely affect any rights of any Purchaser;
iv.
repay, repurchase or offer to repay, repurchase or otherwise acquire more than a de minimis number of shares of its securities
or debt obligations except pursuant to their terms as such terms exist on the date hereof;
v.
pay cash dividends on any equity securities of the Company;
vi.
enter into any transaction with any Affiliate of the Guarantor which would be required to be disclosed in any public filing of
the Company with the Commission, unless such transaction is made on an arm’s-length basis and expressly approved by a majority
of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval); or
vii.
enter into any agreement with respect to any of the foregoing.
5.
Miscellaneous
.
(a)
Amendments in Writing
. None of the terms or provisions of this Guarantee may be waived, amended, supplemented or otherwise
modified except in writing by the Purchasers.
(b)
Notices
. All notices, requests and demands to or upon the Purchasers or any Guarantor hereunder shall be effected in the
manner provided for in the Purchase Agreement or Exchange Agreement, as applicable, provided that any such notice, request or
demand to or upon any Guarantor shall be addressed to such Guarantor at its notice address set forth on
Schedule 5(b)
.
(c)
No Waiver By Course Of Conduct; Cumulative Remedies
. The Purchasers shall not by any act (except by a written instrument
pursuant to Section 5(a)), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any default under the Transaction Documents or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Purchasers, any right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Purchasers of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Purchasers would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights
or remedies provided by law.
(d)
Enforcement Expenses; Indemnification
.
(i)
Each Guarantor agrees to pay, or reimburse the Purchasers for, all its costs and expenses incurred in collecting against such
Guarantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Guarantee and
the other Transaction Documents to which such Guarantor is a party, including, without limitation, the reasonable fees and disbursements
of counsel to the Purchasers.
(ii)
Each Guarantor agrees to pay, and to save the Purchasers harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable in
connection with any of the transactions contemplated by this Guarantee.
(iii)
Each Guarantor agrees to pay, and to save the Purchasers harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Guarantee to the extent the Company would be required to do so pursuant
to the Purchase Agreement and Exchange Agreement.
(iv)
The agreements in this Section shall survive repayment of the Obligations and all other amounts payable under the Purchase Agreement,
Exchange Agreement and the other Transaction Documents.
(e)
Successor and Assigns
. This Guarantee shall be binding upon the successors and assigns of each Guarantor and shall inure
to the benefit of the Purchasers and their respective successors and assigns; provided that no Guarantor may assign, transfer
or delegate any of its rights or obligations under this Guarantee without the prior written consent of the holders of the Obligations.
(f)
Set-Off
. Each Guarantor hereby irrevocably authorizes the Purchasers at any time and from time to time while an Event of
Default under any of the Transaction Documents shall have occurred and be continuing, without notice to such Guarantor or any
other Guarantor, any such notice being expressly waived by each Guarantor, to set-off and appropriate and apply any and all deposits,
credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Purchasers to or for the credit or the account of such Guarantor, or any part thereof
in such amounts as the Purchasers may elect, against and on account of the obligations and liabilities of such Guarantor to the
Purchasers hereunder and claims of every nature and description of the Purchasers against such Guarantor, in any currency, whether
arising hereunder, under the Purchase Agreement, Exchange Agreement and any other Transaction Document or otherwise, as the Purchasers
may elect, whether or not the Purchasers have made any demand for payment and although such obligations, liabilities and claims
may be contingent or unmatured. The Purchasers shall notify such Guarantor promptly of any such set-off and the application made
by the Purchasers of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Purchasers under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Purchasers may have.
(g)
Counterparts
. This Guarantee may be executed by one or more of the parties to this Guarantee on any number of separate
counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same
instrument.
(h)
Severability
. Any provision of this Guarantee which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
(i)
Section Headings
. The Section headings used in this Guarantee are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation hereof.
(j)
Integration
. This Guarantee and the other Transaction Documents represent the agreement of the Guarantors and the Purchasers
with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Purchasers relative to the subject matter hereof and thereof not expressly set forth or referred to herein or in the other
Transaction Documents.
(k)
Governing Laws
. All questions concerning the construction, validity, enforcement and interpretation of this Guarantee shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each of the Company and the Guarantors agree that all proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Guarantee (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of New York, Borough of Manhattan. Each of the Company and the Guarantors hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for
the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such proceeding is improper. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such proceeding by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Guarantee
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising
out of or relating to this Guarantee or the transactions contemplated hereby.
(l)
Acknowledgements
. Each Guarantor hereby acknowledges that:
(i)
it has been advised by counsel in the negotiation, execution and delivery of this Guarantee and the other Transaction Documents
to which it is a party;
(ii)
the Purchasers have no fiduciary relationship with or duty to any Guarantor arising out of or in connection with this Guarantee
or any of the other Transaction Documents, and the relationship between the Guarantors, on the one hand, and the Purchasers, on
the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(iii)
no joint venture is created hereby or by the other Transaction Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Guarantors and the Purchasers.
(m)
Additional Guarantors
. The Company shall cause each of its subsidiaries formed or acquired on or subsequent to the date
hereof to become a Guarantor for all purposes of this Guarantee by executing and delivering an Assumption Agreement in the form
of Annex 1 hereto.
(n)
Release of Guarantors
. Each Guarantor will be released from all liability hereunder concurrently with the indefeasible
repayment in full of all amounts owed under the Purchase Agreement, the Exchange Agreement, the Debentures and the other Transaction
Documents.
(o)
Seniority
. The Obligations of each of the Guarantors hereunder rank senior in priority to any other Indebtedness (as defined
in the Purchase Agreement) of such Guarantor or pari passu as to any obligation under the Subsidiary Guarantee dated as of March
20, 2017.
(p)
WAIVER OF JURY TRIAL
.
EACH GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE PURCHASERS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
*********************
(Signature
Pages Follow)
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly executed and delivered as of the date first above
written.
CollabRx,
Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Chief
Executive Officer
|
|
Health
Technology Solutions, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Chief
Executive Officer
|
|
Medytox
Institute of Laboratory Medicine, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Chief
Executive Officer
|
|
Medical
Billing Choices, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
President
|
|
Medytox
Diagnostics, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Chief
Executive Officer
|
|
Medytox
Medical Marketing & Sales, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
PB
Laboratories, LLC
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
Biohealth
Medical Laboratory, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
Alethea
Laboratories, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
International
Technologies, LLC
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
EPIC
Reference Labs, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
Clinlab,
Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
President
|
|
Medical
Mime, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
Epinex
Diagnostics Laboratories, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
Epinex
Diagnostics Laboratories, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
Platinum
Financial Solutions, LLC
|
By:
|
/s/
Sebastien Sainsbury
|
|
|
Name:
|
Sebastien
Sainsbury
|
|
|
Title:
|
Manager
|
|
Advanced
Molecular Services Group, Inc.
|
By:
|
/s/
Seamus Lagan
|
|
|
Name:
|
Seamus
Lagan
|
|
|
Title:
|
Secretary
|
|
SCHEDULE
1
GUARANTORS
The
following are the names and jurisdiction of organization of each Subsidiary Guarantor.
The notice address of each Subsidiary Guarantor is c/o Rennova Health, Inc., 400 South
Australian Avenue, Suite 800, West Palm Beach, Florida 33401, Attn: Seamus Lagan.
|
|
(i)
|
Entities
owned 100% by Rennova Health, Inc.:
|
|
|
|
|
|
|
|
|
|
|
|
Medytox
Solutions, Inc.
|
|
Nevada
|
|
|
|
Advanced
Molecular Services Group, Inc.
|
|
Florida
|
|
|
|
|
|
|
|
|
(ii)
|
Entities
owned 100% by Medytox Solutions, Inc.:
|
|
|
|
|
|
|
|
|
|
|
|
Medytox
Institute of Laboratory Medicine, Inc.
|
|
Florida
|
|
|
|
Medytox
Medical Marketing & Sales, Inc.
|
|
Florida
|
|
|
|
Medical
Billing Choices, Inc.
|
|
North
Carolina
|
|
|
|
Medytox
Diagnostics, Inc.
|
|
Florida
|
|
|
|
Health
Technology Solutions, Inc.
|
|
Florida
|
|
|
|
|
|
|
|
|
(iii)
|
Entities
owned 100% by Health Technology Solutions, Inc.:
|
|
|
|
|
|
|
|
|
|
|
|
Medical
Mime, Inc.
|
|
Florida
|
|
|
|
Clinlab,
Inc.
|
|
Florida
|
|
|
|
|
|
|
|
|
(iv)
|
Entities
owned 100% by Medytox Diagnostics, Inc.:
|
|
|
|
|
|
|
|
|
|
|
|
International
Technologies, LLC
|
|
New
Jersey
|
|
|
|
PB
Laboratories, LLC
|
|
Florida
|
|
|
|
Epinex
Diagnostics Laboratories, Inc.
|
|
California
|
|
|
|
Biohealth
Medical Laboratory, Inc.
|
|
Florida
|
|
|
|
Epic
Reference Labs, Inc.
|
|
Florida
|
|
|
|
|
|
|
|
|
(v)
|
Entity
owned 100% by Epinex Diagnostics Laboratories, Inc.:
|
|
|
|
|
|
|
|
|
|
|
|
Epinex
Diagnostics Laboratories, Inc.
|
|
Nevada
|
|
|
|
|
|
|
|
|
(vi)
|
Entity
owned 100% by Platinum Financial Solutions, Ltd.:
|
|
|
|
|
|
|
|
|
|
|
|
Platinum
Financial Solutions, LLC
|
|
Florida
|
|
|
|
|
|
|
|
|
(vii)
|
Entities
owned 100% by Advanced Molecular Services Group, Inc.:
|
|
|
|
|
|
|
|
|
|
|
|
CollabRx,
Inc.
|
|
Delaware
|
|
|
|
Alethea
Laboratories, Inc.
|
|
Texas
(Not currently in good standing)
|
Annex
1 to
SUBSIDIARY
GUARANTEE
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________, a ______________ corporation (the “
Additional
Guarantor
”), in favor of the Purchasers pursuant to the agreements referred to below. All capitalized terms not defined
herein shall have the meaning ascribed to them in such agreements.
W
I T N E S S E T H :
WHEREAS,
Rennova Health, Inc., a Delaware corporation (the “
Company
”) and the Purchasers have entered into a Securities
Purchase Agreement and Securities Exchange Agreements, each dated as of September 19, 2017 (as amended, supplemented
or otherwise modified from time to time, collectively, the “
Agreements
”);
WHEREAS,
in connection with the Agreements, the Subsidiaries of the Company (other than the Additional Guarantor) have entered into the
Subsidiary Guarantee, dated as of September 19, 2017 (as amended, supplemented or otherwise modified from time to time,
the “
Guarantee
”) in favor of the Purchasers;
WHEREAS,
the Agreements require the Additional Guarantor to become a party to the Guarantee; and
WHEREAS,
the Additional Guarantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee;
NOW,
THEREFORE, IT IS AGREED:
1.
Guarantee
. By executing and delivering this Assumption Agreement, the Additional Guarantor, as provided in Section 5(m)
of the Guarantee, hereby becomes a party to the Guarantee as a Guarantor thereunder with the same force and effect as if originally
named therein as a Guarantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1 hereto is hereby added to the information set forth
in Schedule 1 to the Guarantee. The Additional Guarantor hereby represents and warrants that each of the representations and warranties
contained in Section 3 of the Guarantee is true and correct on and as the date hereof as to such Additional Guarantor (after giving
effect to this Assumption Agreement) as if made on and as of such date.
2.
Governing Law
. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above
written.
CONSENT
Consent
(this “Consent”), dated as of September 19, 2017, by TCA Global Credit Master Fund, LP, a limited partnership organized
and existing under the laws of the Cayman Islands (“TCA”).
WHEREAS,
TCA and certain other parties entered into that certain Intercreditor Agreement, dated March 20, 2017 (the “Intercreditor
Agreement”);
WHEREAS,
Rennova Health, Inc. a Delaware corporation (“Rennova”), has entered into a Securities Purchase Agreement, dated as
of August 31, 2017 (the “Purchase Agreement”), with each purchaser identified on the signature pages thereto;
WHEREAS,
this Consent is a condition to the consummation of the transactions contemplated by the Purchase Agreement; and
WHEREAS,
TCA is not obligated to execute this Consent and, but for the terms and conditions herein contained, would not execute this Consent.
NOW,
THEREFORE, for good and valuable consideration, the parties hereto agree as follows:
1.
Rennova hereby agrees (i) on the date hereof, to pay TCA in an amount equal to $400,000, which such amount shall be applied to
amounts currently outstanding and owing to TCA by Rennova and the Credit Parties (as defined below); (ii) on the date hereof,
to pay counsel to TCA in an amount equal to $3,500, which such amount shall be in consideration of legal services provided in
connection with this Consent and documents prepared in connection herewith; (iii) as soon as possible, but in any event not later
than October 31, 2017, to pay TCA an amount equal to $300,000, which such amount shall be applied to amounts currently outstanding
and owing to TCA by Rennova and the Credit Parties; (iv) as soon as possible, but in any event not later than November 30, 2017,
to pay TCA an amount equal to $300,000, which such amount shall be applied to amounts currently outstanding and owing to TCA by
Rennova and the Credit Parties; and (v) as soon as possible, but in any event not later than December 31, 2017, to pay any and
all then outstanding and owing amounts to TCA by Rennova and the Credit Parties, including, but not limited to, all then outstanding
interest, principal, fees, advisory fees, and expenses. This is an amendment to Schedule A attached to the Side Letter agreement
between the parties, dated March 20, 2017.
2.
By its execution hereof, Rennova hereby consents to the payment contained in items 1(i) and 1(ii) above from the proceeds of the
Debentures and hereby instructs Shutts & Bowen LLP (“Shutts”) to make payment directly to Lucosky Brookman LLP,
as counsel to TCA, from the proceeds of the Debentures. Shutts hereby agrees to make the payments contained in items 1(i) and
1(ii) above directly to Lucosky Brookman LLP, as counsel to TCA, by wire transfer immediately upon and concurrently with the funding
to Rennova. Payments shall be made to the attorney escrow account of Lucosky Brookman LLP, counsel to TCA (Account Name: Lucosky
Brookman LLP Attorney Trust Account; Bank: HSBC Bank N.A.; Routing Number: 021001088; Account Number: 387008438).
3.
Subject to the satisfaction of the payments contained in items 1(i) and 1(ii) above, TCA hereby consents (i) to the Purchase Agreement
and the consummation of the transactions contemplated therein and (ii) to have the Debentures (as defined in the Purchase Agreement)
be included in the Intercreditor Agreement as part of the Sabby Management Loan (as defined in the Intercreditor Agreement).
4.
Rennova, Medytox Solutions, Inc., Health Technology Solutions, Inc., Medytox Institute of Laboratory Medicine, Inc., Medical Billing
Choices Inc., Medytox Diagnostics, Inc., Medytox Medical Marketing & Sales, Inc., PB Laboratories, LLC, Biohealth Medical
Laboratory Inc., Alethea Laboratories, Inc., International Technologies, LLC, EPIC Reference Labs, Inc., Clinlab, Inc., Medical
Mime, Inc., Epinex Diagnostics Laboratories, Inc., Epinex Diagnostics Laboratories, Inc., and Platinum Financial Solutions, LLC,
(together, the “Credit Parties”) hereby acknowledges, represents, warrants and confirms to TCA that: (i) each of the
Transaction Documents (as defined in the TCA Credit Agreement (as defined in the Intercreditor Agreement) executed by Rennova
and the Credit Parties, respectively and as applicable, are valid and binding obligations of Rennova and the Credit Parties, respectively
and as applicable, enforceable against each of them in accordance with their respective terms; (ii) all other Obligations (as
defined in the TCA Credit Agreement) of Rennova and the Credit Parties shall be and continue to be and remain secured by and under
the Transaction Documents and all UCC-1 Financing Statements filed in connection therewith; and (iii) TCA’s security interests
are and remain valid, perfected, first-priority security interests (subject only to the Intercreditor Agreement).
5.
Rennova and the Credit Parties hereby agree that failure to satisfy any of the items contained in paragraph 1 above on or prior
to the dates specified therein shall constitute an immediate Event of Default (as defined in the TCA Credit Agreement). In addition
to any and all rights and remedies contained in the TCA Credit Agreement and the TCA Loan Documents (as defined in the Intercreditor
Agreement), (i) upon the occurrence of an Event of Default due to Rennova’s failure to pay the amounts provided in paragraph
1 above on or before the dates therein provided, Rennova and the Credit Parties shall pay TCA an amount equal to $250,000 as liquidated
damages, in addition to any and all amounts outstanding and owing to TCA by Rennova and the Credit Parties in connection with
the TCA Credit Agreement and the TCA Loan Documents; and (ii) upon the occurrence of an Event of Default, TCA shall be permitted
to file a Confession of Judgement against Rennova and the Credit Parties (in the form attached hereto as Exhibit A) with any State
or Federal court.
6.
Except as expressly provided herein, the Intercreditor Agreement remains in full force and effect and the terms of this Consent
are subject to and governed by the terms of the Intercreditor Agreement.
7.
As a material inducement for TCA to execute this Consent, each of the Credit Parties hereby releases, waives, discharges, covenants
not to sue, acquits, satisfies and forever discharges TCA and its respective successors and assigns, from any and all claims whatsoever
in law or in equity which the Credit Parties, or any one of them, ever had, now have, or which any successor or assign of the
Credit Parties hereafter can, shall or may have against TCA and its respective successors and assigns, for, upon or by reason
of any matter, cause or thing whatsoever related to the Transaction Documents through the date hereof. In addition to, and without
limiting the generality of foregoing, the Credit Parties further covenant with and warrant unto TCA, that there exist no claims,
counterclaims, defenses, objections, offsets or other claims against TCA.
8.
This Consent shall be governed by and construed in accordance with the laws of the State of Nevada without regard to choice of
law principles. Any dispute arising under or relating to or in connection with this letter agreement shall be subject to the exclusive
jurisdiction and venue of the State and/or Federal courts located in Broward County, Florida. This letter agreement may be executed
in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same
instrument.
[signature
pages follow]
IN
WITNESS WHEREOF, this Consent is executed and delivered as of the date first written above.
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TCA
GLOBAL CREDIT MASTER FUND, LP
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By:
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TCA
Global Credit Fund GP, Ltd.
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Its:
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General
Partner
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By:
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Name:
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Robert
Press
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Title:
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Director
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ACKNOWLEDGED
AND AGREED:
SHUTTS
& BOWEN LLP
RENNOVA
HEALTH, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
MEDYTOX
SOLUTIONS, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
HEALTH
TECHNOLOGY SOLUTIONS, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
MEDYTOX
INSTITUTE OF LABORATORY MEDICINE, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
MEDICAL
BILLING CHOICES, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
MEDYTOX
DIAGNOSTICS, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
MEDYTOX
MEDICAL MARKETING & SALES, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
PB
LABORATORIES, LLC
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
BIOHEALTH
MEDICAL LABORATORY, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
ALETHEA
LABORATORIES, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
INTERNATIONAL
TECHNOLOGIES, LLC
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
EPIC
REFERNCE LABS, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
CLINLAB,
INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
MEDICAL
MIME, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
EPINEX
DIAGNOSTICS LABORATORIES, INC.
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
PLATINUM
FINANCIAL SOLUTIONS, LLC
Subscribed
and sworn to before me by ________________ on this ___ day of ______________ 2017.
____________________________________
Notary
Public
