<SEC-DOCUMENT>0001193125-17-290562.txt : 20170921
<SEC-HEADER>0001193125-17-290562.hdr.sgml : 20170921
<ACCEPTANCE-DATETIME>20170921170055
ACCESSION NUMBER:		0001193125-17-290562
CONFORMED SUBMISSION TYPE:	8-K
PUBLIC DOCUMENT COUNT:		3
CONFORMED PERIOD OF REPORT:	20170921
ITEM INFORMATION:		Entry into a Material Definitive Agreement
ITEM INFORMATION:		Unregistered Sales of Equity Securities
ITEM INFORMATION:		Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
ITEM INFORMATION:		Financial Statements and Exhibits
FILED AS OF DATE:		20170921
DATE AS OF CHANGE:		20170921

FILER:

	COMPANY DATA:	
		COMPANY CONFORMED NAME:			DELCATH SYSTEMS, INC.
		CENTRAL INDEX KEY:			0000872912
		STANDARD INDUSTRIAL CLASSIFICATION:	SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841]
		IRS NUMBER:				061245881
		STATE OF INCORPORATION:			DE
		FISCAL YEAR END:			1231

	FILING VALUES:
		FORM TYPE:		8-K
		SEC ACT:		1934 Act
		SEC FILE NUMBER:	001-16133
		FILM NUMBER:		171096222

	BUSINESS ADDRESS:	
		STREET 1:		1633 BROADWAY
		STREET 2:		SUITE 22C
		CITY:			NEW YORK
		STATE:			NY
		ZIP:			10019
		BUSINESS PHONE:		(212) 489-2100

	MAIL ADDRESS:	
		STREET 1:		1633 BROADWAY
		STREET 2:		SUITE 22C
		CITY:			NEW YORK
		STATE:			NY
		ZIP:			10019

	FORMER COMPANY:	
		FORMER CONFORMED NAME:	DELCATH SYSTEMS INC
		DATE OF NAME CHANGE:	19990607
</SEC-HEADER>
<DOCUMENT>
<TYPE>8-K
<SEQUENCE>1
<FILENAME>d446431d8k.htm
<DESCRIPTION>FORM 8-K
<TEXT>
<HTML><HEAD>
<TITLE>FORM 8-K</TITLE>
</HEAD>
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 <P STYLE="line-height:1.0pt;margin-top:0pt;margin-bottom:0pt;border-bottom:1px solid #000000">&nbsp;</P>
<P STYLE="line-height:3.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1px solid #000000">&nbsp;</P> <P STYLE="margin-top:4pt; margin-bottom:0pt; font-size:18pt; font-family:Times New Roman" ALIGN="center"><B>UNITED STATES </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:18pt; font-family:Times New Roman" ALIGN="center"><B>SECURITIES AND EXCHANGE COMMISSION </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Washington, D.C. 20549 </B></P> <P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:18pt; font-family:Times New Roman" ALIGN="center"><B>FORM <FONT
STYLE="white-space:nowrap">8-K</FONT> </B></P> <P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>CURRENT
REPORT </B></P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Pursuant to Section&nbsp;13 or 15(d) </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>of the Securities Exchange Act of 1934 </B></P>
<P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:12pt; font-family:Times New Roman" ALIGN="center"><B>Date of Report (Date of earliest event reported): September&nbsp;21, 2017 </B></P>
<P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center> <P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center>
<P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:24pt; font-family:Times New Roman" ALIGN="center"><B>DELCATH SYSTEMS, INC. </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>(Exact name of registrant as specified in its charter) </B></P> <P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="100%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:8pt" ALIGN="center">


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<TD VALIGN="top" ALIGN="center"><B>Delaware</B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center"><B><FONT STYLE="white-space:nowrap">001-16133</FONT></B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center"><B><FONT STYLE="white-space:nowrap">06-1245881</FONT></B></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(State or other jurisdiction</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>of incorporation)</B></P></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(Commission</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>File Number)</B></P></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(IRS Employer</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>Identification No.)</B></P></TD></TR>
</TABLE> <P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="100%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" ALIGN="center">


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<TD WIDTH="48%"></TD></TR>


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<TD VALIGN="top" ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>1633 Broadway, Suite 22C,</B></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>New York, New York</B></P></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom" ALIGN="center"><B>10019</B></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="top" ALIGN="center"><B>(Address of principal executive offices)</B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" ALIGN="center"><B>(Zip code)</B></TD></TR>
</TABLE> <P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>(212) <FONT STYLE="white-space:nowrap">489-2100</FONT> </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(Registrant&#146;s telephone number, including area code) </B></P>
<P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>None </B></P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>(Former name or
former address, if changed since last report.) </B></P> <P STYLE="font-size:10pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><center>
<P STYLE="line-height:6.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1.00pt solid #000000;width:21%">&nbsp;</P></center> <P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Check the appropriate box below
if the Form <FONT STYLE="white-space:nowrap">8-K</FONT> filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (<U>see</U>&nbsp;General Instruction A.2 below): </P>
<P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">&#9744;</TD>
<TD ALIGN="left" VALIGN="top">Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) </TD></TR></TABLE> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">&#9744;</TD>
<TD ALIGN="left" VALIGN="top">Soliciting material pursuant to Rule <FONT STYLE="white-space:nowrap">14a-12</FONT> under the Exchange Act (17 CFR <FONT STYLE="white-space:nowrap">240.14a-12)</FONT> </TD></TR></TABLE>
<P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">&#9744;</TD>
<TD ALIGN="left" VALIGN="top"><FONT STYLE="white-space:nowrap">Pre-commencement</FONT> communications pursuant to Rule <FONT STYLE="white-space:nowrap">14d-2(b)</FONT> under the Exchange Act (17 CFR
<FONT STYLE="white-space:nowrap">240.14d-2(b))</FONT> </TD></TR></TABLE> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">&#9744;</TD>
<TD ALIGN="left" VALIGN="top"><FONT STYLE="white-space:nowrap">Pre-commencement</FONT> communications pursuant to Rule <FONT STYLE="white-space:nowrap">13e-4(c)</FONT> under the Exchange Act (17 CFR
<FONT STYLE="white-space:nowrap">240.13e-4(c))</FONT> </TD></TR></TABLE> <P STYLE="margin-top:10pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (&#167;230.405 of this chapter) or Rule <FONT STYLE="white-space:nowrap">12b-2</FONT> of the Securities Exchange Act of 1934 <FONT STYLE="white-space:nowrap">(&#167;240.12b-2</FONT> of this chapter).
</P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">&#9744;</TD>
<TD ALIGN="left" VALIGN="top">Emerging growth company </TD></TR></TABLE> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">&#9744;</TD>
<TD ALIGN="left" VALIGN="top">If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to
section 13(a) of the Exchange Act. </TD></TR></TABLE> <P STYLE="font-size:8pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P> <P STYLE="line-height:1.0pt;margin-top:0pt;margin-bottom:0pt;border-bottom:1px solid #000000">&nbsp;</P>
<P STYLE="line-height:3.0pt;margin-top:0pt;margin-bottom:2pt;border-bottom:1px solid #000000">&nbsp;</P>

<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B>Item&nbsp;1.01 Entry into a Material Definitive Agreement. </B></P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">On September&nbsp;12, 2017, our Board authorized the establishment of a new series of preferred stock designated as Series C Preferred Stock, $0.01 par value,
the terms of which are set forth in the certificate of designations for such series of Preferred Stock (the &#147;Series C Certificate of Designations&#148;) which was filed with the State of Delaware on September&nbsp;20, 2017 (together with any
preferred shares issued in replacement thereof in accordance with the terms thereof, the &#147;Series C Preferred Stock&#148;). On September&nbsp;21, 2017, we entered into a securities purchase agreement (the &#147;SPA&#148;) with two of our
investors which had purchased certain senior secured convertible notes (the &#147;Notes&#148;), convertible into shares of our common stock pursuant to a certain June&nbsp;6, 2016 securities purchase agreement, of $0.5&nbsp;million aggregate
purchase price for 590 shares of Series C Preferred Stock (the &#147;Series C Preferred Shares&#148;). The purchase of the Series C Preferred Stock is being made in reliance upon the exemption from registration provided by Rule 4(a)(2) of the
Securities Act of 1933, as amended. The Series C Preferred Shares shall be entitled to 519,421,250 votes and may only vote on approval of a reverse split of our outstanding common stock. The Series C Preferred Stock has no dividend, liquidation or
other preferential rights to our common stock, and each share of Series C Preferred Stock shall be redeemable for the amount of $1,000.00, payable in cash, per share at our written election, and must be redeemed by us no later than December&nbsp;21,
2017. </P> <P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B>Item&nbsp;3.02. Unregistered Sales of Equity Securities. </B></P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">See Item&nbsp;1.01 above. </P> <P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B>Item&nbsp;5.03. Amendment to
Certificate of Incorporation. </B></P> <P STYLE="margin-top:6pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">See Item&nbsp;1.01 above. </P>
<P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B>Item&nbsp;9.01. Financial Statements and Exhibits. </B></P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left">(d)</TD>
<TD ALIGN="left" VALIGN="top">Exhibits. </TD></TR></TABLE> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="100%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" ALIGN="center">


<TR>
<TD></TD>
<TD VALIGN="bottom" WIDTH="5%"></TD>
<TD WIDTH="92%"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="bottom" NOWRAP ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center">Exhibit</P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; border-bottom:1.00pt solid #000000; width:23.50pt; font-size:8pt; font-family:Times New Roman" ALIGN="center">No.</P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" NOWRAP> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; border-bottom:1.00pt solid #000000; width:37.25pt; font-size:8pt; font-family:Times New Roman">Description</P></TD></TR>


<TR STYLE="font-size:1pt">
<TD HEIGHT="8"></TD>
<TD HEIGHT="8" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" NOWRAP>3.1</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top">Certificate of Designation of Series C Preferred Stock</TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="8"></TD>
<TD HEIGHT="8" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" NOWRAP>10.1</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top">Form of Securities Purchase Agreement</TD></TR>
</TABLE>

<p Style='page-break-before:always'>
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>EXHIBIT INDEX </B></P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="100%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" ALIGN="center">


<TR>
<TD></TD>
<TD VALIGN="bottom" WIDTH="5%"></TD>
<TD WIDTH="92%"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="bottom" NOWRAP ALIGN="center"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:8pt; font-family:Times New Roman" ALIGN="center">Exhibit</P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; border-bottom:1.00pt solid #000000; width:23.50pt; font-size:8pt; font-family:Times New Roman" ALIGN="center">No.</P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" NOWRAP> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; border-bottom:1.00pt solid #000000; width:37.25pt; font-size:8pt; font-family:Times New Roman">Description</P></TD></TR>


<TR STYLE="font-size:1pt">
<TD HEIGHT="8"></TD>
<TD HEIGHT="8" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" NOWRAP>3.1</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"><A HREF="d446431dex31.htm">Certificate of Designation of Series C Preferred Stock</A></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="8"></TD>
<TD HEIGHT="8" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" NOWRAP>10.1</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"><A HREF="d446431dex101.htm">Form of Securities Purchase Agreement</A></TD></TR>
</TABLE>

<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>SIGNATURE </B></P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized. </P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD WIDTH="4%"></TD>
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<TD VALIGN="bottom" WIDTH="1%"></TD>
<TD WIDTH="44%"></TD></TR>


<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top" COLSPAN="3">DELCATH SYSTEMS, INC.</TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top">Date: September&nbsp;21, 2017</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">By:</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"> <P STYLE="margin-top:0pt; margin-bottom:1pt; border-bottom:1px solid #000000; font-size:10pt; font-family:Times New Roman">/s/ Jennifer Simpson</P></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Name:</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Jennifer Simpson</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Title:</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">President and Chief Executive Officer</TD></TR>
</TABLE>
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</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.1
<SEQUENCE>2
<FILENAME>d446431dex31.htm
<DESCRIPTION>EX-3.1
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="right"><B>Exhibit 3.1 </B></P>
<P STYLE="margin-top:24pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF THE </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>SERIES C PREFERRED STOCK OF </B></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>DELCATH SYSTEMS, INC. </B></P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">I,
Jennifer Simpson, hereby certify that I am the Chief Executive Officer of Delcath Systems, Inc. (the &#147;<B>Corporation</B>&#148;), a corporation incorporated and existing under the Delaware General Corporation Law (the &#147;<B>DGCL</B>&#148;)
and further do hereby certify: </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">That pursuant to the authority expressly conferred upon the Board of Directors of the Corporation (the
&#147;<B>Board</B>&#148;) by the Corporation&#146;s Certificate of Incorporation, as amended (the &#147;<B>Certificate of Incorporation</B>&#148;), and Section&nbsp;151(g) of the DGCL, the Board on September&nbsp;12, 2017 adopted the following
resolution determining it desirable and in the best interests of the Corporation and its stockholders for the Corporation to create a series of shares of preferred stock designated as &#147;<B>Series C </B><B>Convertible Preferred Stock</B>&#148;,
none of which shares have been issued: </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">RESOLVED, that pursuant to the authority vested in the Board, in accordance with the provisions of
the Certificate of Incorporation, a series of preferred stock, par value $0.01 per share, of the Corporation be and hereby is created, and that the designation and number of shares thereof and the voting and other powers, preferences and relative,
participating, optional or other rights of the shares of such series and the qualifications, limitations and restrictions thereof are as follows: </P>
<P STYLE="margin-top:18pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B>TERMS OF SERIES C PREFERRED STOCK </B></P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:8%; font-size:10pt; font-family:Times New Roman">1.
<U>Designation and Number of Shares</U>. There shall hereby be created and established a series of preferred stock of the Corporation designated as &#147;Series C Preferred Stock&#148; (the &#147;<B>Preferred Shares</B>&#148;). The authorized number
of Preferred Shares shall be 590 shares. Each Preferred Share shall have a par value of $0.01. Capitalized terms not defined herein shall have the meaning as set forth in Section&nbsp;29 below. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:8%; font-size:10pt; font-family:Times New Roman">2. <U>Ranking</U>. Except to the extent that the holders of at least a majority of the outstanding Preferred Shares (the &#147;<B>Required
Holders</B>&#148;) expressly consent to the creation of Parity Stock (as defined below) or Senior Preferred Stock (as defined below) in accordance with Section&nbsp;12, all shares of capital stock of the Corporation shall be junior in rank to all
Preferred Shares with respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation (such junior stock is referred to herein collectively as &#147;<B>Junior
Stock</B>&#148;). The rights of all such shares of capital stock of the Corporation shall be subject to the rights, powers, preferences and privileges of the Preferred Shares. Without limiting any other provision of this Certificate of Designations,
without the prior express consent of the Required Holders, voting separate as a single class, the Corporation shall not hereafter authorize or issue any additional or other shares of capital stock that is (i)&nbsp;of senior rank to the Preferred
Shares in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation (collectively, the &#147;<B>Senior Preferred Stock</B>&#148;), (ii) of pari passu rank to the
Preferred Shares in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation (collectively, the &#147;<B>Parity Stock</B>&#148;) or (iii)&nbsp;any Junior Stock having
a maturity date </P>

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(or any other date requiring redemption or repayment of such shares of Junior Stock) that is prior to the Maturity Date. In the event of the merger or consolidation of the Corporation with or
into another corporation, the Preferred Shares shall maintain their relative rights, powers, designations, privileges and preferences provided for herein and no such merger or consolidation shall result inconsistent therewith. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:8%; font-size:10pt; font-family:Times New Roman">3. <U>Dividends</U>. From and after the first date of issuance of any Preferred Shares (the &#147;<B>Initial Issuance Date</B>&#148;), no
holder of a Preferred Share (each, a &#147;<B>Holder</B>&#148; and collectively, the &#147;<B>Holders</B>&#148;) shall be entitled to receive any dividends (&#147;<B>Dividends</B>&#148;) except in accordance with Section&nbsp;5 or Section&nbsp;11
below or, otherwise, to the extent, if any, as may be declared by the Board on the Preferred Shares, from time to time, in its sole and absolute discretion, which Dividends, if any, shall be paid by the Corporation out of funds legally available
therefor, payable, subject to the conditions and other terms hereof, in cash on the Stated Value of such Preferred Share. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:8%; font-size:10pt; font-family:Times New Roman">4. <U>Rights
Upon Fundamental Transactions</U>. The Corporation shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes in writing all of the obligations of the Corporation under this Certificate of Designations and the
other Transaction Documents in accordance with the provisions of this Section&nbsp;4 pursuant to written agreements in form and substance reasonably satisfactory to the Required Holders and approved by the Required Holders prior to such Fundamental
Transaction, including agreements to deliver to each holder of Preferred Shares in exchange for such Preferred Shares a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this
Certificate of Designations, including, without limitation, having a stated value and dividend rate equal to the stated value and dividend rate of the Preferred Shares held by the Holders and having similar ranking to the Preferred Shares, and
satisfactory to the Required Holders. Upon the occurrence of any Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this
Certificate of Designations and the other Transaction Documents referring to the &#147;Corporation&#148; shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations
of the Corporation under this Certificate of Designations and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Corporation herein and therein. In addition to the foregoing, upon consummation of a
Fundamental Transaction, the Successor Entity shall deliver to each Holder confirmation that there shall be issued upon conversion or redemption of the Preferred Shares at any time after the consummation of such Fundamental Transaction, in lieu of
the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 5(a) and 13, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption of the
Preferred Shares prior to such Fundamental Transaction, such shares of the publicly traded common stock (or their equivalent) of the Successor Entity (including its Parent Entity) which each Holder would have been entitled to receive upon the
happening of such Fundamental Transaction had all the Preferred Shares held by each Holder been converted immediately prior to such Fundamental Transaction (without regard to any limitations on the conversion of the Preferred Shares contained in
this Certificate of Designations), as adjusted in accordance with the provisions of this Certificate of Designations. Notwithstanding the foregoing, such Holder may elect, at its sole option, by </P>
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delivery of written notice to the Corporation to waive this Section&nbsp;4 to permit the Fundamental Transaction without the assumption of the Preferred Shares. The provisions of this
Section&nbsp;5 shall apply similarly and equally to successive Fundamental Transactions and shall be applied without regard to any limitations on the conversion or redemption of the Preferred Shares. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">5. <U>Rights Upon Issuance of Purchase Rights and Other Corporate Events</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Purchase Rights</U>. In addition to any adjustments pursuant to Section&nbsp;6 below, if at any time the Corporation
grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to all or substantially all of the record holders of any class of Common Stock (the &#147;<B>Purchase
Rights</B>&#148;), then each Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such Holder could have acquired if such Holder had held the number of shares of Common Stock
acquirable upon complete conversion of all the Preferred Shares (without taking into account any limitations or restrictions on the convertibility of the Preferred Shares) held by such Holder immediately prior to the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however,
to the extent that such Holder&#146;s right to participate in any such Purchase Right would result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be entitled to participate in such
Purchase Right to such extent (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase Right to such extent shall be held in
abeyance for such Holder until such time or times , if ever, as its right thereto would not result in such Holder and the other Attribution Parties exceeding the Maximum Percentage), at which time or times such Holder shall be granted such right
(and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there had been no such limitation. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Other Corporate Events</U>. In addition to and not in substitution for any other rights hereunder, prior to the
consummation of any Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a &#147;<B>Corporate Event</B>&#148;), the
Corporation shall make appropriate provision to insure that each Holder will thereafter have the right to receive upon a conversion of all the Preferred Shares held by such Holder (i)&nbsp;in addition to the shares of Common Stock receivable upon
such conversion, such securities or other assets to which such Holder would have been entitled with respect to such shares of Common Stock had such shares of Common Stock been held by such Holder upon the consummation of such Corporate Event
(without taking into account any limitations or restrictions on the convertibility of the Preferred Shares contained in this Certificate of Designations) or (ii)&nbsp;in lieu of the shares of Common Stock otherwise receivable upon such conversion,
such securities or other assets received by the holders of shares of Common Stock in connection with the consummation of such </P>
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Corporate Event in such amounts as such Holder would have been entitled to receive had the Preferred Shares held by such Holder initially been issued with conversion rights for the form of such
consideration (as opposed to shares of Common Stock) at a conversion rate for such consideration commensurate with the Conversion Rate. Provision made pursuant the proceeding sentence shall be in a form and substance satisfactory to the Holder. The
provisions of this Section&nbsp;6 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any limitations on the conversion or redemption of the Preferred Shares contained in this Certificate of
Designations. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">6. <U>Rights Upon Issuance of Other Securities</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Adjustment of Conversion Price upon Subdivision or Combination of Common Stock</U>. Without limiting any provision of
Section&nbsp;5 or Section&nbsp;11, if the Corporation at any time on or after the Subscription Date subdivides (by any stock split, stock dividend, stock combination, recapitalization or other similar transaction) 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. Without limiting any provision of Section&nbsp;5 or Section&nbsp;11, if the
Corporation at any time on or after the Subscription Date combines (by any stock split, stock dividend, stock combination, recapitalization or other similar transaction) 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 pursuant to this Section&nbsp;6(a) shall become effective immediately after the effective date of such
subdivision or combination. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Calculations</U>. All calculations under this Section&nbsp;6 shall be made by rounding
to the nearest cent or the nearest 1/100<SUP STYLE="font-size:85%; vertical-align:top">th</SUP> of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the
account of the Corporation, and the disposition of any such shares shall be considered an issue or sale of Common Stock. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">7.
<U>Redemptions</U>. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Corporation Optional Redemption</U>. At any time after the Initial Issuance Date, the
Corporation shall have the right to redeem all, or any part, of the Preferred Shares then outstanding (the &#147;<B>Corporation Optional Redemption Amount</B>&#148;) on the applicable Corporation Optional Redemption Date (each as defined below) (a
&#147;<B>Corporation </B><B>Optional Redemption</B>&#148;). The Preferred Shares subject to redemption pursuant to this Section&nbsp;8(a) shall be redeemed by the Corporation in cash at a price (the &#147;<B>Corporation Optional Redemption
Price</B>&#148;) equal to the Stated Value of the shares of Series C Preferred Stock being redeemed as of the Corporation Optional Redemption Date. The Corporation may exercise its right to require redemption under this Section&nbsp;8(a) by
delivering a written notice thereof by facsimile or electronic mail and overnight courier to all, but not less than all, of the Holders (the &#147;<B>Corporation Optional Redemption </B><B>Notice</B>&#148; and the date all of the Holders received
such notice is referred to as the &#147;<B>Corporation Optional Redemption Notice Date</B>&#148;). Each Corporation Optional Redemption Notice shall be irrevocable. The Corporation Optional Redemption Notice
</P>
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shall (x)&nbsp;state the date on which the Corporation Optional Redemption shall occur (the &#147;<B>Corporation Optional Redemption Date</B>&#148;) which date shall not be less than five
(5)&nbsp;Trading Days nor more than twenty (20)&nbsp;Trading Days following the Corporation Optional Redemption Notice Date, and (y)&nbsp;state the aggregate Redemption Amount of the Preferred Shares which is being redeemed in such Corporation
Optional Redemption from such Holder and all of the other Holders of the Preferred Shares pursuant to this Section&nbsp;8(a) on the Corporation Optional Redemption Date. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Financing Redemption</U>. Upon the occurrence of any Financing, the Corporation shall be required to redeem from each
Holder (unless waived, in whole or in part, by such Holder in an <FONT STYLE="white-space:nowrap">e-mail</FONT> or other writing to the Corporation) such aggregate number of Preferred Shares equal to the lesser of (x)&nbsp;the aggregate number of
preferred shares then held by such Holder and (y)&nbsp;the quotient (rounded down to the nearest whole number) of (A)&nbsp;the applicable Financing Amount, divided by (B)&nbsp;the Stated Value then in effect (the &#147;<B>Financing Redemption
Amount</B>&#148;) concurrently with such related Financing by instructing the Control Account Bank, purchaser of securities, placement agent or underwriter, as applicable, to wire or release the applicable Financing Amount to such corresponding
Holder (or, if such Financing Amount is delivered to the Company for any reason, to promptly thereafter wire each Financing Amount to the applicable Holder) (each, a &#147;<B>Financing Redemption Date</B>&#148;, and such redemption, a
&#147;<B>Financing Redemption</B>&#148;). The Preferred Shares subject to redemption pursuant to this Section&nbsp;7(b) shall be redeemed by the Corporation in cash at a price (each, a &#147;<B>Financing Redemption Price</B>&#148;) equal to the
Redemption Amount being redeemed as of the Financing Redemption Date. Notwithstanding anything herein to the contrary, at any time prior to the date the Financing Redemption Price is paid, in full, the Financing Redemption Amount may be converted,
in whole or in part, by any Holder into shares of Common Stock pursuant to Section&nbsp;4. All Redemption Amounts converted by a Holder after the occurrence of any Controlled Account Release Event and prior to the applicable Financing Redemption
Date shall reduce the Financing Redemption Amount of the Preferred Shares of such Holder required to be redeemed on the applicable Financing Redemption Date. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Mandatory Redemption upon Bankruptcy Event of Default</U>. Notwithstanding anything to the contrary herein, and
notwithstanding any conversion that is then required or in process, upon any Bankruptcy Event of Default (as defined in the Notes) (each, a &#147;<B>Bankruptcy Redemption Date</B>&#148;), whether occurring prior to or following the Maturity Date,
the Corporation shall immediately redeem, in cash, each of the Preferred Shares then outstanding at a redemption price equal to the Redemption Amount of such Preferred Shares (each, a &#147;<B>Bankruptcy Redemption Price</B>&#148;), without the
requirement for any notice or demand or other action by any Holder or any other person or entity, provided that a Holder may, in its sole discretion, waive such right to receive payment upon a Bankruptcy Event of Default, in whole or in part, and
any such waiver shall not affect any other rights of such Holder or any other Holder hereunder, including any other rights in respect of such Bankruptcy Event of Default, any right to conversion, and any right to payment of such Bankruptcy
Redemption Price or any other Redemption Price, as applicable. </P>
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>Holder Optional Redemption after Maturity Date</U>. At any time from and
after the tenth (10th) Business Day prior to the Maturity Date, any Holder may require the Corporation to redeem (a &#147;<B>Maturity Redemption</B>&#148;) all or any number of Preferred Shares held by such Holder at a purchase price equal to 100%
of the Redemption Amount of such Preferred Shares (the &#147;<B>Maturity Redemption Price</B>&#148;) by delivery of written notice thereof (the &#147;<B>Maturity Redemption Notice</B>&#148;) to the Corporation. The Maturity Redemption Notice shall
state the date the Corporation is required to pay to such Holder such Maturity Redemption Price (the &#147;<B>Maturity </B><B>Redemption Date</B>&#148;), which date shall be no earlier than ten (10)&nbsp;Business Days following the date of delivery
of such Maturity Redemption Notice. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(e) <U>Mechanics of Redemptions</U>. If a Holder has submitted a Maturity Redemption
Notice, the Corporation shall deliver the applicable Maturity Redemption Price to such Holder in cash on the applicable Maturity Redemption Date. The Corporation shall deliver the applicable Corporation Optional Redemption Price to each Holder in
cash on the applicable Corporation Optional Redemption Date. The Corporation shall deliver the applicable Bankruptcy Redemption Price to each Holder in cash on the applicable Bankruptcy Redemption Date. The Corporation shall deliver the applicable
Financing Redemption Price to each Holder in cash on the applicable Financing Redemption Date. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment
under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Corporation, the applicable Redemption Price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other
Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Corporation&#146;s payment obligation under such other Transaction Document. In the event of a redemption of less than all of the Preferred
Shares, the Corporation shall promptly cause to be issued and delivered to such Holder a new Preferred Share Certificate (in accordance with Section&nbsp;4) (or evidence of the creation of a new Book-Entry) representing the number of Preferred
Shares which have not been redeemed. In the event that the Corporation does not pay the applicable Redemption Price to a Holder within the time period required for any reason (including, without limitation, to the extent such payment is prohibited
pursuant to the DGCL), at any time thereafter and until the Corporation pays such unpaid Redemption Price in full, such Holder shall have the option, in lieu of redemption, to require the Corporation to promptly return to such Holder all or any of
the Preferred Shares that were submitted for redemption and for which the applicable Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Corporation&#146;s receipt of such notice, (x)&nbsp;the applicable Redemption
Notice shall be null and void with respect to such Preferred Shares, (y)&nbsp;the Corporation shall immediately return the applicable Preferred Share Certificate, or issue a new Preferred Share Certificate (in accordance with Section&nbsp;14(d)), to
such Holder (unless the Preferred Shares are held in Book-Entry form, in which case the Corporation shall deliver evidence to such Holder that a Book-Entry for such Preferred Shares then exists). A Holder&#146;s delivery of a notice voiding a
Redemption Notice and exercise of its rights following such notice shall not affect the Corporation&#146;s obligations to make any payments of Late Charges which have accrued prior to the date of such notice with respect to the Preferred Shares
subject to such notice. </P>
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(f) <U>Redemption by Multiple Holders</U>. Upon the Corporation&#146;s receipt of
a Redemption Notice from any Holder, the Corporation shall immediately, but no later than one (1)&nbsp;Business Day of its receipt thereof, forward to each other Holder by facsimile or electronic mail a copy of such notice. If the Corporation
receives one or more Redemption Notices, during the seven (7)&nbsp;Business Day period beginning on and including the date which is three (3)&nbsp;Business Days prior to the Corporation&#146;s receipt of the initial Redemption Notice and ending on
and including the date which is three (3)&nbsp;Business Days after the Corporation&#146;s receipt of the initial Redemption Notice and the Corporation is unable to redeem all principal, interest and other amounts designated in such initial
Redemption Notice and such other Redemption Notices received during such seven (7)&nbsp;Business Day period, then the Corporation shall redeem a pro rata amount from each Holder based on the principal amount of the Preferred Shares submitted for
redemption pursuant to such Redemption Notices received by the Corporation during such seven (7)&nbsp;Business Day period. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">8.
<U>Noncircumvention</U>. The Corporation hereby covenants and agrees that the Corporation will not, by amendment of its Certificate of Incorporation (as defined in the Securities Purchase Agreement), Bylaws (as defined in the Securities Purchase
Agreement) 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 Certificate of Designations, and will at all times in good faith carry out all the provisions of this Certificate of Designations and take all action as may be required to protect the rights of the Holders hereunder. Without limiting
the generality of the foregoing or any other provision of this Certificate of Designations or the other Transaction Documents, the Corporation (a)&nbsp;shall not increase the par value of any shares of Common Stock receivable upon the conversion of
any Preferred Shares above the Conversion Price then in effect, (b)&nbsp;shall take all such actions as may be necessary or appropriate in order that the Corporation may validly and legally issue fully paid and
<FONT STYLE="white-space:nowrap">non-assessable</FONT> shares of Common Stock upon the conversion of Preferred Shares and (c)&nbsp;shall, so long as any Preferred Shares are outstanding, take all action necessary to reserve and keep available out of
its authorized and unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, the maximum number of shares of Common Stock as shall from time to time be necessary to effect the conversion of the
Preferred Shares then outstanding (without regard to any limitations on conversion contained herein). </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">9. <U>Voting Rights</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) With respect to a vote of shareholders to approve a reverse split of the Corporation&#146;s common stock no later than
November&nbsp;30, 2017 only, each share of Series C Preferred Stock held by a Holder, as such, shall be entitled to the whole number of votes equal to 880,375 shares of Common Stock. </P>
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) Each Holder shall be entitled to receive the same prior notice of any
stockholders&#146; meeting as is provided to the holders of Common Stock as well as prior notice of all stockholder actions to be taken by legally available means in lieu of a meeting (and copies of proxy materials, consent solicitation statements
and other information sent to stockholders in connection therewith), all in accordance with the Bylaws and the DGCL, and shall be entitled to vote or, if applicable, provide consent, together with the holders of Common Stock as if they were a single
class of securities upon any matter submitted to a vote of stockholders, except as otherwise expressly required by law and except as required by the terms hereof to be submitted to a series vote of the applicable Holders, in which case each Holder
only shall vote as a separate series. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">10. <U>Liquidation, Dissolution, <FONT STYLE="white-space:nowrap">Winding-Up</FONT></U>. In the
event of a Liquidation Event, the Holders shall be entitled to receive in cash out of the assets of the Corporation, whether from capital or from earnings available for distribution to its stockholders (the &#147;<B>Liquidation Funds</B>&#148;),
before any amount shall be paid to the holders of any of shares of Junior Stock, but pari passu with any Parity Stock then outstanding, an amount per Preferred Share equal to the Redemption Amount thereof on the date of such payment, provided that
if the Liquidation Funds are insufficient to pay the full amount due to the Holders and holders of shares of Parity Stock, then each Holder and each holder of Parity Stock shall receive a percentage of the Liquidation Funds equal to the full amount
of Liquidation Funds payable to such Holder and such holder of Parity Stock as a liquidation preference, in accordance with their respective certificate of designations (or equivalent), as a percentage of the full amount of Liquidation Funds payable
to all holders of Preferred Shares and all holders of shares of Parity Stock. To the extent necessary, the Corporation shall cause such actions to be taken by each of its Subsidiaries so as to enable, to the maximum extent permitted by law, the
proceeds of a Liquidation Event to be distributed to the Holders in accordance with this Section&nbsp;0. All the preferential amounts to be paid to the Holders under this Section&nbsp;12 shall be paid or set apart for payment before the payment or
setting apart for payment of any amount for, or the distribution of any Liquidation Funds of the Corporation to the holders of shares of Junior Stock in connection with a Liquidation Event as to which this Section&nbsp;0 applies. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">11. <U>Distribution of Assets</U>. In addition to any adjustments pursuant to Section&nbsp;7, if the Corporation shall declare or make any
dividend or other distributions of its assets (or rights to acquire its assets) to any or all holders of shares of Common Stock, by way of return of capital or otherwise (including without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the &#147;<B>Distributions</B>&#148;), then each Holder, as holders of Preferred Shares,
will be entitled to such Distributions as if such Holder had held the number of shares of Common Stock acquirable upon complete conversion of the Preferred Shares (without taking into account any limitations or restrictions on the convertibility of
the Preferred Shares) immediately prior to the date on which a record is taken for such Distribution or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for such Distributions
(<U>provided</U>, <U>however</U>, that to the extent that such Holder&#146;s right to participate in any such Distribution would result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be
entitled to participate in such Distribution to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Distribution (and
</P>
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beneficial ownership) to the extent of any such excess) and the portion of such Distribution shall be held in abeyance for such Holder until such time or times as its right thereto would not
result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times, if any, such Holder shall be granted such rights (and any rights under this Section&nbsp;11 on such initial rights or on any subsequent
such rights to be held similarly in abeyance) to the same extent as if there had been no such limitation). </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">12. <U>Vote to Change the
Terms of or Issue Preferred Shares</U>. In addition to any other rights provided by law, except where the vote or written consent of the holders of a greater number of shares is required by law or by another provision of the Certificate of
Incorporation, without first obtaining the affirmative vote at a meeting duly called for such purpose or the written consent without a meeting of the Required Holders, voting together as a single class, the Corporation shall not: (a)&nbsp;amend or
repeal any provision of, or add any provision to, its Certificate of Incorporation or bylaws, or file any certificate of designations or articles of amendment of any series of shares of preferred stock, if such action would adversely alter or change
in any respect the preferences, rights, privileges or powers, or restrictions provided for the benefit of the Preferred Shares hereunder, regardless of whether any such action shall be by means of amendment to the Certificate of Incorporation or by
merger, consolidation or otherwise; (b)&nbsp;increase or decrease (other than by conversion) the authorized number of Preferred Shares; (c)&nbsp;without limiting any provision of Section&nbsp;2, create or authorize (by reclassification or otherwise)
any new class or series of Senior Preferred Stock or Parity Stock; (d)&nbsp;purchase, repurchase or redeem any shares of Junior Stock (other than pursuant to the terms of the Corporation&#146;s equity incentive plans and options and other equity
awards granted under such plans (that have in good faith been approved by the Board)); (e) without limiting any provision of Section&nbsp;2, pay dividends or make any other distribution on any shares of any Junior Stock; (f)&nbsp;issue any Preferred
Shares other than as contemplated hereby or pursuant to the Securities Purchase Agreement ; or (g)&nbsp;without limiting any provision of Section&nbsp;7(e), whether or not prohibited by the terms of the Preferred Shares, circumvent a right of the
Preferred Shares hereunder. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">13. <U>Transfer of Preferred Shares</U>. A Holder may transfer some or all of its Preferred Shares without
the consent of the Corporation. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">14. <U>Reissuance of Preferred </U><U>Share </U><U>Certificates</U><U> and Book Entries</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Transfer</U>. If any Preferred Shares are to be transferred, the applicable Holder shall surrender the applicable
Preferred Share Certificate to the Corporation (or, if the Preferred Shares are held in Book-Entry form, a written instruction letter to the Corporation), whereupon the Corporation will forthwith issue and deliver upon the order of such Holder a new
Preferred Share Certificate (in accordance with Section&nbsp;14(d)) (or evidence of the transfer of such Book-Entry), registered as such Holder may request, representing the outstanding number of Preferred Shares being transferred by such Holder
and, if less than the entire outstanding number of Preferred Shares is being transferred, a new Preferred Share Certificate (in accordance with Section&nbsp;16(d)) to such Holder representing the outstanding number of Preferred Shares not being
transferred (or evidence of such remaining Preferred Shares in a Book-Entry for such Holder). Such Holder and any assignee, by acceptance of the Preferred Share Certificate or evidence of </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">9 </P>


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Book-Entry issuance, as applicable, acknowledge and agree that, by reason of the provisions of Section&nbsp;4(c)(i) following conversion or redemption of any of the Preferred Shares, the
outstanding number of Preferred Shares represented by the Preferred Shares may be less than the number of Preferred Shares stated on the face of the Preferred Shares. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Lost, Stolen or Mutilated Preferred Share Certificate</U>. Upon receipt by the Corporation of evidence reasonably
satisfactory to the Corporation of the loss, theft, destruction or mutilation of a Preferred Share Certificate (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss,
theft or destruction, of any indemnification undertaking by the applicable Holder to the Corporation in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of such Preferred Share Certificate, the
Corporation shall execute and deliver to such Holder a new Preferred Share Certificate (in accordance with Section&nbsp;14(d)) representing the applicable outstanding number of Preferred Shares. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Preferred Share Certificate </U><U>and Book-Entries </U><U>Exchangeable for Different Denominations</U><U> and
Forms</U>. Each Preferred Share Certificate is exchangeable, upon the surrender hereof by the applicable Holder at the principal office of the Corporation, for a new Preferred Share Certificate or Preferred Share Certificate(s) or new Book-Entry (in
accordance with Section&nbsp;14(d)) representing, in the aggregate, the outstanding number of the Preferred Shares in the original Preferred Share Certificate, and each such new Preferred Share Certificate and/or new Book-Entry, as applicable, will
represent such portion of such outstanding number of Preferred Shares from the original Preferred Share Certificate as is designated in writing by such Holder at the time of such surrender. Each Book-Entry may be exchanged into one or more new
Preferred Share Certificates or split by the applicable Holder by delivery of a written notice to the Corporation into two or more new Book-Entries (in accordance with Section&nbsp;14(d)) representing, in the aggregate, the outstanding number of the
Preferred Shares in the original Book-Entry, and each such new Book-Entry and/or new Preferred Share Certificate, as applicable, will represent such portion of such outstanding number of Preferred Shares from the original Book-Entry as is designated
in writing by such Holder at the time of such surrender. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>Issuance of New Preferred Share Certificate</U><U> or
Book-Entry</U>. Whenever the Corporation is required to issue a new Preferred Share Certificate or a new Book-Entry pursuant to the terms of this Certificate of Designations, such new Preferred Share Certificate or new Book-Entry (i)&nbsp;shall
represent, as indicated on the face of such Preferred Share Certificate or in such Book-Entry, as applicable, the number of Preferred Shares remaining outstanding (or in the case of a new Preferred Share Certificate or new Book-Entry being issued
pursuant to Section&nbsp;14(a) or Section&nbsp;14(4c), the number of Preferred Shares designated by such Holder) which, when added to the number of Preferred Shares represented by the other new Preferred Share Certificates or other new Book-Entry,
as applicable, issued in connection with such issuance, does not exceed the number of Preferred Shares remaining outstanding under the original Preferred Share Certificate or original Book-Entry, as applicable, immediately prior to such issuance of
</P>
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new Preferred Share Certificate or new Book-Entry, as applicable, and (ii)&nbsp;shall have an issuance date, as indicated on the face of such new Preferred Share Certificate or in such new
Book-Entry, as applicable, which is the same as the issuance date of the original Preferred Share Certificate or in such original Book-Entry, as applicable. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">15. <U>Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief.</U> The remedies provided in this Certificate of
Designations shall be cumulative and in addition to all other remedies available under this Certificate of Designations 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 any Holder&#146;s right to pursue actual and consequential damages for any failure by the Corporation to comply with the terms of this Certificate of Designations. The Corporation covenants to each
Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. 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 a Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Corporation (or the performance thereof). The Corporation acknowledges that a breach by it of its obligations hereunder
will cause irreparable harm to the Holders and that the remedy at law for any such breach may be inadequate. The Corporation therefore agrees that, in the event of any such breach or threatened breach, each Holder shall be entitled, in addition to
all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and
without posting a bond or other security. The Corporation shall provide all information and documentation to a Holder that is requested by such Holder to enable such Holder to confirm the Corporation&#146;s compliance with the terms and conditions
of this Certificate of Designations. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">16. <U>Payment of Collection, Enforcement and Other Costs</U>. If (a)&nbsp;any Preferred Shares are
placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or a Holder otherwise takes action to collect amounts due under this Certificate of Designations with respect to the Preferred
Shares or to enforce the provisions of this Certificate of Designations or (b)&nbsp;there occurs any bankruptcy, reorganization, receivership of the Corporation or other proceedings affecting Corporation creditors&#146; rights and involving a claim
under this Certificate of Designations, then the Corporation shall pay the costs incurred by such Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including,
without limitation, attorneys&#146; fees and disbursements. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">17. <U>Construction; Headings</U>. This Certificate of Designations shall be
deemed to be jointly drafted by the Corporation and the Holders and shall not be construed against any such Person as the drafter hereof. The headings of this Certificate of Designations are for convenience of reference and shall not form part of,
or affect the interpretation of, this Certificate of Designations. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms
&#147;including,&#148; &#147;includes,&#148; &#147;include&#148; and words of like import shall be construed broadly as if followed by the words &#147;without limitation.&#148; The terms &#147;herein,&#148; &#147;hereunder,&#148; &#147;hereof&#148;
and </P>
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words of like import refer to this entire Certificate of Designations instead of just the provision in which they are found. Unless expressly indicated otherwise, all section references are to
sections of this Certificate of Designations. Terms used in this Certificate of Designations and not otherwise defined herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Initial Issuance
Date in such other Transaction Documents unless otherwise consented to in writing by the Required Holders. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">18. <U>Failure or Indulgence
Not Waiver</U>. No failure or delay on the part of a Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party. This Certificate of Designations shall be deemed to be
jointly drafted by the Corporation and all Holders and shall not be construed against any Person as the drafter hereof. Notwithstanding the foregoing, nothing contained in this Section&nbsp;18 shall permit any waiver of any provision of
Section&nbsp;4(d). </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">19. <U>Dispute Resolution</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Submission to Dispute Resolution.</U> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) In the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, a VWAP or a fair market
value or the arithmetic calculation of a Conversion Rate, or the applicable Redemption Price (as the case may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Corporation or the applicable
Holder (as the case may be) shall submit the dispute to the other party via facsimile or electronic mail (A)&nbsp;if by the Corporation, within two (2)&nbsp;Business Days after the occurrence of the circumstances giving rise to such dispute or
(B)&nbsp;if by such Holder at any time after such Holder learned of the circumstances giving rise to such dispute. If such Holder and the Corporation are unable to promptly resolve such dispute relating to such Closing Bid Price, such Closing Sale
Price, such Conversion Price, such VWAP or such fair market value, or the arithmetic calculation of such Conversion Rate or such applicable Redemption Price (as the case may be), at any time after the second (2<SUP
STYLE="font-size:85%; vertical-align:top">nd</SUP>) Business Day following such initial notice by the Corporation or such Holder (as the case may be) of such dispute to the Corporation or such Holder (as the case may be), then such Holder and the
Corporation may jointly select an independent, reputable investment bank to resolve such dispute. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) Such Holder and the
Corporation shall each deliver to such investment bank (A)&nbsp;a copy of the initial dispute submission so delivered in accordance with the first sentence of this Section&nbsp;19 and (B)&nbsp;written documentation supporting its position with
respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5<SUP STYLE="font-size:85%; vertical-align:top">th</SUP>) Business Day immediately following the date on which such Holder selected such investment bank
(the &#147;<B>Dispute Submission Deadline</B>&#148;) (the documents referred to in the immediately preceding clauses (A)&nbsp;and (B) are collectively referred to herein as the &#147;<B>Required Dispute</B>
</P>
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<B>Documentation</B>&#148;) (it being understood and agreed that if either such Holder or the Corporation fails to so deliver all of the Required Dispute Documentation by the Dispute Submission
Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with
respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in
writing by both the Corporation and such Holder or otherwise requested by such investment bank, neither the Corporation nor such Holder shall be entitled to deliver or submit any written documentation or other support to such investment bank in
connection with such dispute (other than the Required Dispute Documentation). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) The Corporation and such Holder shall
cause such investment bank to determine the resolution of such dispute and notify the Corporation and such Holder of such resolution no later than ten (10)&nbsp;Business Days immediately following the Dispute Submission Deadline. The fees and
expenses of such investment bank shall be borne solely by the Corporation, and such investment bank&#146;s resolution of such dispute shall be final and binding upon all parties absent manifest error. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Miscellaneous</U>. The Corporation and each Holder each, severally and not jointly, expressly acknowledges and agrees
that (i)&nbsp;this Section&nbsp;19 constitutes an agreement to arbitrate between the Corporation and such Holder (and constitutes an arbitration agreement) under &#167; 7501, et seq. of the New York Civil Practice Law and Rules
(&#147;<B>CPLR</B>&#148;) and that any Holder is authorized to apply for an order to compel arbitration pursuant to CPLR &#167; 7503(a) in order to compel compliance with this Section&nbsp;19, (ii) the terms of this Certificate of Designations and
each other applicable Transaction Document shall serve as the basis for the selected investment bank&#146;s resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized) to make all findings,
determinations and the like that such investment bank determines are required to be made by such investment bank in connection with its resolution of such dispute and in resolving such dispute such investment bank shall apply such findings,
determinations and the like to the terms of this Certificate of Designations and any other applicable Transaction Documents, (iii)&nbsp;the Corporation and such applicable Holder (but only such Holder with respect to disputes solely relating to such
Holder) shall each have the right to submit any dispute described in this Section&nbsp;21 to any state or federal court sitting in The City of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this Section&nbsp;19 and
(iv)&nbsp;nothing in this Section&nbsp;19 shall limit such Holder from obtaining any injunctive relief or other equitable remedies (including, without limitation, with respect to any matters described in this Section&nbsp;19). </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">13 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">20. <U>Notices; Currency; Payments</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Notices</U>. The Corporation shall provide each Holder of Preferred Shares with prompt written notice of all actions
taken pursuant to the terms of this Certificate of Designations, including in reasonable detail a description of such action and the reason therefor. Any notices, consents, waivers or other communications required or permitted to be given under the
terms hereof must be in writing and will be deemed to have been delivered: (i)&nbsp;upon receipt, when delivered personally; (ii)&nbsp;upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party) or by electronic mail; or (iii)&nbsp;one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same as determined in accordance with
the Securities Purchase Agreement. Written confirmation of receipt (A)&nbsp;given by the recipient of such notice, consent, waiver or other communication, (B)&nbsp;mechanically or electronically generated by the sender&#146;s facsimile machine or <FONT
STYLE="white-space:nowrap">e-mail</FONT> containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C)&nbsp;provided by an overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii)&nbsp;above, respectively. The Corporation shall provide each Holder with prompt written notice of all actions taken pursuant to this
Certificate of Designations, including in reasonable detail a description of such action and the reason therefore. Without limiting the generality of the foregoing, the Corporation shall give written notice to each Holder (i)&nbsp;immediately upon
any adjustment of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii)&nbsp;at least fifteen (15)&nbsp;days prior to the date on which the Corporation closes its books or takes a
record (A)&nbsp;with respect to any dividend or distribution upon the Common Stock, (B)&nbsp;with respect to any grant, issuances, or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property to
holders of shares of Common Stock or (C)&nbsp;for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or in
conjunction with such notice being provided to such Holder.<U> </U> </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Currency</U>. All dollar amounts referred to in
this Certificate of Designations are in United States Dollars (&#147;<B>U.S. Dollars</B>&#148;), and all amounts owing under this Certificate of Designations shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall
be converted into the U.S.&nbsp;Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. &#147;<B>Exchange Rate</B>&#148;<B> </B>means, in relation to any amount of currency to be converted into U.S. Dollars pursuant
to this Certificate of Designations, the U.S.&nbsp;Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to, or over, a
period of time, the date of calculation shall be the final date of such period of time). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Payments</U>. Whenever any
payment of cash is to be made by the Corporation to any Person pursuant to this Certificate of Designations, unless otherwise expressly set forth herein, such payment shall be made in lawful money of the United States of America by a certified check
drawn on the account of the Corporation and sent via overnight courier service to such Person at such address as previously provided to the Corporation in writing (which address, in the case of each of the Buyers (as defined in the Securities
Purchase Agreement, shall initially be as set forth on the Schedule of Buyers </P>
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attached to the Securities Purchase Agreement), provided that such Holder may elect to receive a payment of cash via wire transfer of immediately available funds by providing the Corporation with
prior written notice setting out such request and such Holder&#146;s wire transfer instructions. Whenever any amount expressed to be due by the terms of this Certificate of Designations 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 due under the Transaction Documents which is not paid when due shall result in a late charge being incurred and payable by the Corporation in an amount equal to interest
on such amount at the rate of fifteen percent (15%) per annum from the date such amount was due until the same is paid in full (&#147;<B>Late Charge</B>&#148;). </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">21. <U>Waiver of Notice</U>. To the extent permitted by law, the Corporation hereby irrevocably waives demand, notice, presentment, protest
and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Certificate of Designations and the Securities Purchase Agreement. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">22. <U>Governing Law</U>. This Certificate of Designations shall be construed and enforced in accordance with, and all questions concerning
the construction, validity, interpretation and performance of this Certificate of Designations shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Except as otherwise required by Section&nbsp;21 above, the Corporation hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law. Nothing contained herein (i)&nbsp;shall be deemed or operate to preclude any Holder from bringing suit or taking other legal action against the Corporation in any other
jurisdiction to collect on the Corporation&#146;s obligations to such Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of such Holder or (ii)&nbsp;shall limit,
or shall be deemed or construed to limit, any provision of Section&nbsp;19. <B>THE CORPORATION HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS CERTIFICATE OF DESIGNATIONS OR ANY TRANSACTION CONTEMPLATED HEREBY.</B> </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">15 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">23. <U>Judgment Currency</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) If for the purpose of obtaining or enforcing judgment against the Corporation in any court in any jurisdiction it becomes
necessary to convert into any other currency (such other currency being hereinafter in this Section&nbsp;29 referred to as the &#147;<B>Judgment Currency</B>&#148;) an amount due in U.S. dollars under this Certificate of Designations, the conversion
shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding: </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) the date actual payment of the
amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction that will give effect to such conversion being made on such date: or </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the
date as of which such conversion is made pursuant to this Section&nbsp;25(a)(ii) being hereinafter referred to as the &#147;<B>Judgment Conversion Date</B>&#148;). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) If in the case of any proceeding in the court of any jurisdiction referred to in Section&nbsp;23(a) above, there is a
change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange
Rate prevailing on the Judgment Conversion Date. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) Any amount due from the Corporation under this provision shall be due
as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Certificate of Designations. </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">24. <U>Severability</U>. If any provision of this Certificate of Designations is prohibited by law or otherwise determined to be invalid or
unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of this Certificate of Designations so long as this Certificate of Designations as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect
of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). <U></U> </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">25. <U>Maximum
Payments</U>. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or
other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Corporation to the applicable Holder and thus refunded to the Corporation. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">16 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">26. <U>Stockholder Matters; Amendment</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Stockholder Matters</U>. Any stockholder action, approval or consent required, desired or otherwise sought by the
Corporation pursuant to the DGCL, the Certificate of Incorporation, this Certificate of Designations or otherwise with respect to the issuance of Preferred Shares may be effected by written consent of the Corporation&#146;s stockholders or at a duly
called meeting of the Corporation&#146;s stockholders, all in accordance with the applicable rules and regulations of the DGCL. This provision is intended to comply with the applicable sections of the DGCL permitting stockholder action, approval and
consent affected by written consent in lieu of a meeting. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Amendment</U>. This Certificate of Designations or any
provision hereof may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the DGCL, of the Required Holders, voting separate as a single class, and with such
other stockholder approval, if any, as may then be required pursuant to the DGCL and the Certificate of Incorporation. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">27. <U>Certain
Defined Terms</U>. For purposes of this Certificate of Designations, the following terms shall have the following meanings: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) &#147;<B>1933 Act</B>&#148;<B> </B>means<B> </B>the Securities Act of 1933, as amended, and the rules and regulations
thereunder. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) &#147;<B>1934 Act</B>&#148;<B> </B>means<B> </B>the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) &#147;<B>Additional Amount</B>&#148; means, as of the applicable date of
determination, with respect to each Preferred Share, all declared and unpaid Dividends on such Preferred Share. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d)
&#147;<B>Affiliate</B>&#148; or &#147;<B>Affiliated</B>&#148; means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes
of this definition that &#147;control&#148; of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the
management and policies of such Person whether by contract or otherwise. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(e) &#147;<B>Attribution Parties</B>&#148; means,
collectively, the following Persons and entities: (i)&nbsp;any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Initial Issuance Date, directly or indirectly managed or advised by
a Holder&#146;s investment manager or any of its Affiliates or principals, (ii)&nbsp;any direct or indirect Affiliates of such Holder or any of the foregoing, (iii)&nbsp;any Person acting or who could be deemed to be acting as a Group together with
such Holder or any of the foregoing and (iv)&nbsp;any other Persons whose beneficial ownership of the Corporation&#146;s Common Stock would or could be aggregated with such Holder&#146;s and the other Attribution Parties for purposes of
Section&nbsp;13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively such Holder and all other Attribution Parties to the Maximum Percentage. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">17 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(f) &#147;<B>Bloomberg</B>&#148; means Bloomberg, L.P. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(g) &#147;<B>Book-Entry</B>&#148; means each entry on the Register evidencing one or more Preferred Shares held by a Holder in
lieu of a Preferred Share Certificate issuable hereunder. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(h) &#147;<B>Business Day</B>&#148; 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. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) &#147;<B>Closing Bid Price</B>&#148; and &#147;<B>Closing Sale Price</B>&#148; means, for any security as of any date, the
last closing bid price and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing bid
price or the closing trade price (as the case may be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal
securities exchange or trading market for such security, the last closing bid price or last trade price, respectively, 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 closing bid price or last trade price, respectively, of such security in the <FONT STYLE="white-space:nowrap"><FONT STYLE="white-space:nowrap">over-the-counter</FONT></FONT> market on the
electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any
market makers for such security as reported in the &#147;pink sheets&#148; by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of
the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value as mutually determined by the Corporation and the Required Holder. If the Corporation and the
Required Holders are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section&nbsp;21. All such determinations shall be appropriately adjusted for any stock splits,
stock dividends, stock combinations, recapitalizations or other similar transactions during such period. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(j)
&#147;<B>Common Stock</B>&#148; means (i)&nbsp;the Corporation&#146;s shares of common stock, $0.01 par value per share, and (ii)&nbsp;any capital stock into which such common stock shall have been changed or any share capital resulting from a
reclassification of such common stock. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(k) &#147;<B>Convertible Securities</B>&#148; means any stock or other security
(other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">18 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(l) &#147;<B>Current Subsidiary</B>&#148; means any Person in which the
Corporation on the Subscription Date, directly or indirectly, (i)&nbsp;owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (ii)&nbsp;controls or operates all or any part of the business, operations or
administration of such Person, and all of the foregoing, collectively, &#147;<B>Current Subsidiaries</B>&#148;. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(m)
&#147;<B>Eligible Market</B>&#148; means The New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market or the Principal Market. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(n) &#147;<B>Financing</B>&#148; means (x)&nbsp;the occurrence of any Control Account Release Event (as defined in the Notes)
or (y)&nbsp;the occurrence of any Subsequent Placement (as defined in the Securities Purchase Agreement. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(o)
&#147;<B>Financing Amount</B>&#148; means (x)&nbsp;with respect to the occurrence of any Control Account Release Event with respect to a Note held by a given Holder, the applicable Controlled Account Release Amount (as defined in the Notes) of the
Note of such Holder (provided, that no portion of such Controlled Account Release Amount shall be used to redeem any other Preferred Shares of any other Holder as long as the Holder (or any of its Affiliates) holds any Preferred Shares) or
(y)&nbsp;with respect to any Subsequent Placement, the Holder Pro Rata Amount of the net cash proceeds of such Subsequent Placement. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(p) &#147;<B>Fundamental Transaction</B>&#148; means (A)&nbsp;that the Corporation shall, directly or indirectly, including
through subsidiaries, Affiliates or otherwise, in one or more related transactions, (i)&nbsp;consolidate or merge with or into (whether or not the Corporation is the surviving corporation) another Subject Entity, or (ii)&nbsp;sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or assets of the Corporation or any of its &#147;significant subsidiaries &#148; (as defined in Rule <FONT STYLE="white-space:nowrap">1-02</FONT> of Regulation <FONT
STYLE="white-space:nowrap">S-X)</FONT> to one or more Subject Entities, or (iii)&nbsp;make, or allow one or more Subject Entities to make, or allow the Corporation to be subject to or have its Common Stock be subject to or party to one or more
Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of
Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z)&nbsp;such number of shares of Common Stock such that all
Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule <FONT STYLE="white-space:nowrap">13d-3</FONT> under
the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv)&nbsp;consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, <FONT
STYLE="white-space:nowrap">spin-off</FONT> or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x)&nbsp;at least 50% of the outstanding shares of Common
Stock, (y)&nbsp;at least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party
</P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">19 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; font-size:10pt; font-family:Times New Roman">
to, such stock purchase agreement or other business combination were not outstanding; or (z)&nbsp;such number of shares of Common Stock such that the Subject Entities become collectively the
beneficial owners (as defined in Rule <FONT STYLE="white-space:nowrap">13d-3</FONT> under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (v)&nbsp;reorganize, recapitalize or reclassify its Common Stock, (B)&nbsp;that the
Corporation shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the
&#147;beneficial owner&#148; (as defined in Rule <FONT STYLE="white-space:nowrap">13d-3</FONT> under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in
outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, <FONT STYLE="white-space:nowrap">spin-off,</FONT> scheme of arrangement, reorganization, recapitalization or reclassification or
otherwise in any manner whatsoever, of either (x)&nbsp;at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y)&nbsp;at least 50% of the aggregate ordinary voting power represented by issued and
outstanding Common Stock not held by all such Subject Entities as of the date of this Certificate of Designations calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z)&nbsp;a percentage of the
aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Corporation sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction
requiring other shareholders of the Corporation to surrender their shares of Common Stock without approval of the shareholders of the Corporation or (C)&nbsp;directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or
more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of
such instrument or transaction. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(q) &#147;<B>GAAP</B>&#148; means United States generally accepted accounting principles,
consistently applied. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(r) &#147;<B>Group</B>&#148; means a &#147;group&#148; as that term is used in Section&nbsp;13(d) of
the 1934 Act and as defined in Rule <FONT STYLE="white-space:nowrap">13d-5</FONT> thereunder. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(s) &#147;<B>Holder Pro Rata
Amount</B>&#148; means, with respect to any Holder, a fraction (i)&nbsp;the numerator of which is the number of Preferred Shares issued to such Holder on the Initial Issuance Date and (ii)&nbsp;the denominator of which is the number of Preferred
Shares issued to all Holders on the Initial Issuance Date. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(t) &#147;<B>Liquidation Event</B>&#148; means, whether in a
single transaction or series of transactions, the voluntary or involuntary liquidation, dissolution or winding up of the Corporation or such Subsidiaries the assets of which constitute all or substantially all of the assets of the business of the
Corporation and its Subsidiaries, taken as a whole. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(u) &#147;<B>Maturity Date</B>&#148; shall mean December&nbsp;21,
2017. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">20 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(v) &#147;<B>Note</B>&#148; means, with respect to a Holder, that certain senior
secured convertible note issued by the Corporation to such Holder pursuant to that certain Securities Purchase Agreement, dated June&nbsp;6, 2016, by and among the Corporation, such Holder and the other investors party thereto, as amended from time
to time in accordance therewith. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(w) &#147;<B>New Subsidiary</B>&#148; means, as of any date of determination, any Person
in which the Corporation after the Subscription Date, directly or indirectly, (i)&nbsp;owns or acquires any of the outstanding capital stock or holds any equity or similar interest of such Person or (ii)&nbsp;controls or operates all or any part of
the business, operations or administration of such Person, and all of the foregoing, collectively, &#147;<B>New Subsidiaries</B>.&#148; </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(x) &#147;<B>Options</B>&#148; means any rights, warrants or options to subscribe for or purchase shares of Common Stock or
Convertible Securities. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(y) &#147;<B>Parent Entity</B>&#148; of a Person means an entity that, directly or indirectly,
controls the applicable Person and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity with the largest public market
capitalization as of the date of consummation of the Fundamental Transaction. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(z) &#147;<B>Person</B>&#148; means an
individual, a limited liability Corporation, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(aa) &#147;<B>Principal Market</B>&#148; means the Nasdaq Capital Market. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(bb) &#147;<B>Redemption Notices</B>&#148; means, collectively, the Maturity Redemption Notice and the Corporation Optional
Redemption Notice, and each of the foregoing, individually, a &#147;<B>Redemption Notice</B>.&#148; </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(cc)
&#147;<B>Redemption Prices</B>&#148; means, collectively, Financing Redemption Prices, the Maturity Redemption Price, Bankruptcy Redemption Price and the Corporation Optional Redemption Prices, and each of the foregoing, individually, a
&#147;<B>Redemption Price</B>.&#148; </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(dd) &#147;<B>SEC</B>&#148; means the Securities and Exchange Commission or the
successor thereto. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ee) &#147;<B>Securities Purchase Agreement</B>&#148; means that certain securities purchase agreement
by and among the Corporation and the initial holders of Preferred Shares, dated as of the Subscription Date, as may be amended from time in accordance with the terms thereof, </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ff) &#147;<B>Stated Value</B>&#148; shall mean $1,000 per share, subject to adjustment for stock splits, stock dividends,
recapitalizations, reorganizations, reclassifications, combinations, subdivisions or other similar events occurring after the Initial Issuance Date with respect to the Preferred Shares. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">21 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(gg) &#147;<B>Subscription Date</B>&#148; means September&nbsp;20, 2017. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(hh) <B>&#147;</B><B>Subject Entity</B>&#148; means any Person, Persons or Group or any Affiliate or associate of any such
Person, Persons or Group. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) &#147;<B>Subsidiaries</B>&#148; means, as of any date of determination, collectively, all
Current Subsidiaries and all New Subsidiaries, and each of the foregoing, individually, a &#147;<B>Subsidiary</B>.&#148; </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(jj) &#147;<B>Successor Entity</B>&#148; means the Person (or, if so elected by the Required Holders, the Parent Entity) formed
by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Required Holders, the Parent Entity) with which such Fundamental Transaction shall have been entered into. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(kk) &#147;<B>Trading Day</B>&#148; means, as applicable, (x)&nbsp;with respect to all price or trading volume determinations
relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market
on which the Common Stock is then traded, provided that &#147;Trading Day&#148; shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is
suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New
York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y)&nbsp;with respect to all determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange
(or any successor thereto) is open for trading of securities. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ll) &#147;<B>Transaction Documents</B>&#148; means this
Certificate of Designations, the Securities Purchase Agreement and each of the other agreements and instruments entered into or delivered by the Corporation or any of the Holders in connection with the transactions contemplated by the Securities
Purchase Agreement, all as may be amended from time to time in accordance with the terms thereof. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(mm)
&#147;<B>VWAP</B>&#148; means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the
principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its &#147;Volume at
Price&#148; function or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the <FONT STYLE="white-space:nowrap"><FONT STYLE="white-space:nowrap">over-the-counter</FONT></FONT> market on the electronic
bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">22 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; font-size:10pt; font-family:Times New Roman">
time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the
lowest closing ask price of any of the market makers for such security as reported in the &#147;pink sheets&#148; by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the
foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Corporation and the Required Holders. If the Corporation and the Required Holders are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance with the procedures in Section19. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar
transaction during such period. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:8%; font-size:10pt; font-family:Times New Roman">28. <U>Disclosure</U>. Upon receipt or delivery by the Corporation of any notice in accordance with the
terms of this Certificate of Designations, unless the Corporation has in good faith determined that the matters relating to such notice do not constitute material, <FONT STYLE="white-space:nowrap">non-public</FONT> information relating to the
Corporation or any of its Subsidiaries, the Corporation shall within one (1)&nbsp;Business Day after any such receipt or delivery publicly disclose such material, <FONT STYLE="white-space:nowrap">non-public</FONT> information on a Current Report on
Form <FONT STYLE="white-space:nowrap">8-K</FONT> or otherwise. In the event that the Corporation believes that a notice contains material, <FONT STYLE="white-space:nowrap">non-public</FONT> information relating to the Corporation or any of its
Subsidiaries, the Corporation so shall indicate to such Holder contemporaneously with delivery of such notice, and in the absence of any such indication, such Holder shall be allowed to presume that all matters relating to such notice do not
constitute material, <FONT STYLE="white-space:nowrap">non-public</FONT> information relating to the Corporation or any of its Subsidiaries. If the Corporation or any of its Subsidiaries provides material
<FONT STYLE="white-space:nowrap">non-public</FONT> information to a Holder that is not simultaneously filed in a Current Report on Form <FONT STYLE="white-space:nowrap">8-K</FONT> and such Holder has not agreed to receive such material <FONT
STYLE="white-space:nowrap">non-public</FONT> information, the Corporation hereby covenants and agrees that such Holder shall not have any duty of confidentiality to the Corporation, any of its Subsidiaries or any of their respective officers,
directors, employees, affiliates or agents with respect to, or a duty to any of the foregoing not to trade on the basis of, such material <FONT STYLE="white-space:nowrap">non-public</FONT> information. Nothing contained in this Section&nbsp;30 shall
limit any obligations of the Corporation, or any rights of any Holder, under the Securities Purchase Agreement. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">* * * * * </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">23 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations of Series C
Convertible Preferred Stock to be signed by its Chief Executive Officer on this 20<SUP STYLE="font-size:85%; vertical-align:top">th</SUP> day of September, 2017. </P>
<P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><DIV ALIGN="right">
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<TD VALIGN="top" COLSPAN="3"><B>DELCATH SYSTEMS, INC.</B></TD></TR>
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<TD HEIGHT="16"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD></TR>
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<TD VALIGN="top">By:</TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top"> <P STYLE="margin-top:0pt; margin-bottom:1pt; border-bottom:1px solid #000000; font-size:10pt; font-family:Times New Roman">/s/ Jennifer K. Simpson</P></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Name: Jennifer K. Simpson</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Title: CEO</TD></TR>
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<TYPE>EX-10.1
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<FILENAME>d446431dex101.htm
<DESCRIPTION>EX-10.1
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="right"><B>Exhibit 10.1 </B></P>
<P STYLE="margin-top:24pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>SECURITIES PURCHASE AGREEMENT </B></P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">This <B>SECURITIES PURCHASE AGREEMENT</B> (this &#147;<B>Agreement</B>&#148;), dated as of September&nbsp;19, 2017, is by and among Delcath
Systems, Inc., a Delaware corporation with offices located at 1633 Broadway, Suite 22C, New York, New York 10019 (the &#147;<B>Company</B>&#148;), and each of the investors listed on the Schedule of Buyers attached hereto (individually, a
&#147;<B>Buyer</B>&#148; and collectively, the &#147;<B>Buyers</B>&#148;). </P> <P STYLE="margin-top:24pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B><U>RECITALS </U></B></P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">A. The Company and each Buyer desire to enter into this transaction to purchase the Preferred Shares (as defined below) in a transaction
exempt from registration under Section&nbsp;4(a)(2) of the Securities Act of 1933, as amended (the &#147;<B>1933 Act</B>&#148;). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">B. The
Company has authorized a new series of convertible Preferred Stock of the Company designated as Series C Preferred Stock, $0.01 par value, the terms of which are set forth in the certificate of designation for such Series C Preferred Stock (the
&#147;<B>Certificate of Designations</B>&#148;) in the form attached hereto as <B><U>Exhibit A</U></B> (together with any shares of preferred stock issued in replacement thereof in accordance with the terms thereof, the &#147;<B>Series C Preferred
Stock</B>&#148;), in accordance with the terms of the Certificate of Designations. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">C. Each Buyer wishes to purchase, and the Company
wishes to sell, upon the terms and conditions stated in this Agreement, such aggregate number of Preferred Shares set forth opposite such Buyer&#146;s name in column (3)&nbsp;on the Schedule of Buyers (which aggregate amount for all Buyers shall be
590 Preferred Shares and shall collectively be referred to herein as the &#147;<B>Preferred Shares</B>&#148;). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">D. The Preferred Shares are
also referred to herein as the &#147;<B>Securities</B>&#148;. </P> <P STYLE="margin-top:24pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B><U>AGREEMENT </U></B></P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows: </P> <P STYLE="font-size:18pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
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<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>1.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>PURCHASE AND SALE OF PREFERRED SHARES. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Purchase of Preferred Shares</U>. Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined
below) such aggregate number of Preferred Shares as is set forth opposite such Buyer&#146;s name in column (3)&nbsp;on the Schedule of Buyers.<U> </U> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Closing</U>. The closing (the &#147;<B>Closing</B>&#148;) of the purchase of the Preferred Shares by the Buyers shall occur at the
offices of Kelley Drye&nbsp;&amp; Warren LLP, 101 Park Avenue, New York, NY 10178. The date and time of the Closing (the &#147;<B>Closing Date</B>&#148;) shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to
the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein &#147;<B>Business Day</B>&#148; means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required by law to remain closed.<U> </U> </P>

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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Purchase Price</U>. The aggregate purchase price for the Preferred Shares to be purchased
by each Buyer (the &#147;<B>Purchase Price</B>&#148;) shall be the amount set forth opposite such Buyer&#146;s name in column (4)&nbsp;on the Schedule of Buyers.<U> </U> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>Form of Payment; Deliveries</U>. On the Closing Date, (i)&nbsp;each Buyer shall pay its respective Purchase Price (less, in the case of
any Buyer, the amounts withheld pursuant to Section&nbsp;4(j)) to the Company for the Preferred Shares to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter
(as defined below) and (ii)&nbsp;the Company shall deliver to each Buyer certificates representing such aggregate number of Preferred Shares, as is set forth opposite such Buyer&#146;s name in column (3)&nbsp;of the Schedule of Buyers, duly executed
on behalf of the Company and registered in the name of such Buyer or its designee.<U> </U> </P> <P STYLE="font-size:18pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
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<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>2.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>BUYER&#146;S REPRESENTATIONS AND WARRANTIES. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">Each Buyer, severally and not jointly,
represents and warrants to the Company with respect to only itself that, as of the date hereof and as of the Closing Date: </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a)
<U>Organization; Authority</U>. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the
transactions contemplated by the Transaction Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Validity; Enforcement</U>. This Agreement has been duly and validly authorized, executed and delivered on behalf of such Buyer and shall
constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with its terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors&#146; rights and remedies. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>No Conflicts</U>. The execution, delivery and performance by such Buyer of this Agreement and the consummation by such Buyer of the
transactions contemplated hereby will not (i)&nbsp;result in a violation of the organizational documents of such Buyer, (ii)&nbsp;conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Buyer is a party or (iii)&nbsp;result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws) applicable to such Buyer, except, in the case of clauses (ii)&nbsp;and (iii) above, for such conflicts, defaults, rights or violations which could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the ability of such Buyer to perform its obligations hereunder.<U> </U> </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">2 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>No public sale or distribution</U>.&nbsp;Such buyer is (i)&nbsp;acquiring the securities
and (ii)&nbsp;upon conversion of the preferred shares (other than those issuable as a result of purchase as a result of an exchange of the notes) will acquire shares of company common stock issuable upon conversion thereof, for its own account and
not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the securities act of 1933, as amended (the &#147;1933 act&#148;); <U>provided</U>,
<U>however</U>, that by making the representations herein, such buyer does not agree to hold any of the securities for any minimum or other specific term and reserves the right to dispose of the securities at any time in accordance with or pursuant
to registration under the 1933 act or an available exemption from such registration requirements and in each case in accordance with any applicable state securities laws.&nbsp;Such buyer is acquiring the securities hereunder in the ordinary course
of its business.&nbsp;Such buyer does not presently have any agreement or understanding, directly or indirectly, with any person (as defined below) to distribute any of the securities.&nbsp;For purposes of this agreement, &#147;person&#148; means an
individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any government or any department or agency thereof. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(e) <U>Accredited investor status</U>.&nbsp;Such buyer is an &#147;accredited investor&#148; as that term is defined in rule 501(a) of
regulation&nbsp;d. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(f) <U>Reliance on exemptions</U>.&nbsp;Such buyer understands that the securities have not been registered under the
1933 act or any applicable state securities laws and are being offered and sold to it in reliance on the exemptions from registration under the 1933 act provided by section 4(a)(2) of the 1933 act and rule 506(b) of regulation d under the 1933 act
and pursuant to similar exemption from any applicable state securities laws and that the company is relying in part upon the truth and accuracy of, and such buyer&#146;s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of such buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such buyer to acquire the securities. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(g) <U>Transfer or resale</U>.&nbsp;Such buyer understands that:&nbsp;(i) the securities have not been and are not being registered under the
1933 act or any state securities laws, and may not be offered for sale, sold, assigned or transferred, directly or indirectly, unless (a)&nbsp;subsequently registered thereunder, (b)&nbsp;such sale, offer, assignment or transfer is to the company,
(c)&nbsp;the sale, offer, assignment or transfer is made pursuant to the exemption from the registration requirements under the u.s. securities act provided by rule 144 or rule 144a thereunder, if available, and in accordance with any applicable
state securities laws provided that such buyer has furnished to the company reasonable assurances, in form and substance reasonably satisfactory to the company, that registration is not required under the 1933 act or (d)&nbsp;such sale, offer,
assignment or transfer is pursuant to a transaction that does not require registration under the 1933 act or any applicable state securities laws provided that such buyer has furnished to the company an opinion of counsel of recognized standing
selected by such buyer, in form and substance reasonably satisfactory to the company, that registration is not required under the 1933 act; (ii)&nbsp;any sale of the securities made in reliance on rule 144 may be made only in accordance with the
terms of rule 144 and further, if rule 144 is not available, any resale of the securities under circumstances in which the seller (or the person) through whom the sale is made may be deemed to be an underwriter (as that term is defined in the 1933
act) may require compliance </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">3 </P>


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with some other exemption under the 1933 act or the rules and regulations of the sec thereunder; and (iii)&nbsp;neither the company nor any other person is under any obligation to register the
securities under the 1933 act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.&nbsp;Notwithstanding the foregoing, the securities may be pledged in connection with a bona fide margin account or
other loan or financing arrangement secured by the securities and such pledge of securities shall not be deemed to be a transfer, sale or assignment of the securities hereunder, and no buyer effecting a pledge of securities shall be required to
provide the company with any notice thereof or otherwise make any delivery to the company pursuant to this agreement or any other transaction document (as defined in section 3(b)), including, without limitation, this section 2(g). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(h) <U>Legends</U>.&nbsp;Such buyer understands that the certificates or other instruments representing the securities and, until the earlier
of (i)&nbsp;other than those issued directly or indirectly in exchange for notes (which shall be issued without restrictive legend), six (6)&nbsp;months after the closing date and (ii)&nbsp;such time as the resale of the conversion shares have been
registered under the 1933 act, the stock certificates representing the conversion shares, except as set forth below, shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of
such stock certificates): </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman"><B>THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN&nbsp;REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.&nbsp;THESE SECURITIES MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED DIRECTLY OR INDIRECTLY, ONLY (A)&nbsp;TO THE COMPANY, (B)&nbsp;IF THE SECURITIES HAVE BEEN REGISTERED IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (C)&nbsp;IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT IN ACCORDANCE WITH
RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY REASONABLE ASSURANCES, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY,
THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (D)&nbsp;IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF
SECURITIES PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING SELECTED BY THE HOLDER, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.&nbsp;NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. </B></P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">4 </P>


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<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>3.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>REPRESENTATIONS AND WARRANTIES OF THE COMPANY. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">The Company represents and warrants to
each of the Buyers that, as of the date hereof and as of the Closing Date (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date): </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Organization and Qualification</U>. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing
and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted.
Each of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). As used in this Agreement, &#147;<B>Material Adverse
Effect</B>&#148; means any material adverse effect on (i)&nbsp;the business, properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any Subsidiary, individually or
taken as a whole, (ii)&nbsp;the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments to be entered into in connection herewith or therewith or (iii)&nbsp;the authority or ability of the
Company or any of its Subsidiaries to perform any of their respective obligations under any of the Transaction Documents (as defined below). Other than the Persons (as defined below) set forth on Schedule&nbsp;3(a) the Company has no Subsidiaries.
&#147;<B>Subsidiaries</B>&#148; means any Person in which the Company, directly or indirectly, (A)&nbsp;owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (B)&nbsp;controls or operates all or any part
of the business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a &#147;<B>Subsidiary</B>&#148;. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Authorization; Enforcement; Validity</U>. The Company has the requisite power and authority to enter into and perform its obligations
under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery of this Agreement and the other Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Preferred Shares, the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the
Preferred Shares) have been duly authorized by the Company&#146;s board of directors and (other than the filing with the SEC and any other filings as may be required by any state securities agencies) no further filing, consent or authorization is
required by the Company, its board of directors or its stockholders or other governing body. This Agreement has been, and the other Transaction Documents will be prior to the Closing, duly executed and delivered by the Company, and each constitutes
the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">5 </P>


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creditors&#146; rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law. The Certificate of Designations in the form
attached hereto as <B><U>Exhibit A</U></B> has been filed with the Secretary of State of the State of Delaware and is in full force and effect, enforceable against the Company in accordance with its terms and has not have been amended.
&#147;<B>Transaction Documents</B>&#148; means, collectively, this Agreement, the Certificate of Designations and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions
contemplated hereby and thereby, as may be amended from time to time. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Issuance of Securities</U>. The issuance of the Preferred
Shares are duly authorized and, upon issuance and payment in accordance with the terms of the Transaction Documents shall be validly issued, fully paid and <FONT STYLE="white-space:nowrap">non-assessable</FONT> and free from all preemptive or
similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively &#147;<B>Liens</B>&#148;) with respect to the issuance thereof. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>No Conflicts</U>. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the Preferred Shares, the Conversion Shares and the reservation for issuance of the Conversion Shares) will not (i)&nbsp;result in a violation of the
Certificate of Incorporation (as defined below) (including, without limitation, any certificate of designation contained therein), Bylaws (as defined below), certificate of formation, memorandum of association, articles of association, bylaws or
other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries, (ii)&nbsp;conflict with, or constitute a default (or an event which with notice or lapse of
time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or
(iii)&nbsp;result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, foreign, federal and state securities laws and regulations and the rules and regulations of the Nasdaq Capital Market (the
<B>&#147;</B><B>Principal Market</B>&#148;), with a reasonable prospect of delisting or suspension occurring after giving effect to all applicable notice, appeal, compliance and hearing periods, and including all applicable foreign, federal and
state laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of (ii)&nbsp;and (iii) for any such
conflict, default or violation that would not reasonably be expected to have a Material Adverse Effect. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(e) <U>Consents</U>. Neither the
Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration with (other than the filing with the SEC and any other filings as may be required by any state securities agencies), any
Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case,
in accordance with the terms hereof or thereof. All material consents, authorizations, orders, filings and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been or will be obtained or
effected on or prior to the Closing Date, and neither the Company nor </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">6 </P>


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any of its Subsidiaries are aware of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or
filings contemplated by the Transaction Documents. Except as disclosed in the SEC Documents (as defined below), the Company is not in violation of the requirements of the Principal Market and has no knowledge of any facts or circumstances which
could reasonably lead to delisting or suspension of the Common Stock (as defined below) in the foreseeable future. &#147;<B>Governmental Entity</B>&#148; means any nation, state, county, city, town, village, district, or other political jurisdiction
of any nature, federal, state, local, municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal),
multi-national organization or body; or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing,
including any entity or enterprise owned or controlled by a government or a public international organization or any of the foregoing. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(f)
<U>Acknowledgment Regarding Buyer</U><U>&#146;</U><U>s Purchase of Securities</U>. The Company acknowledges and agrees that each Buyer is acting solely in the capacity of an arm&#146;s length purchaser with respect to the Transaction Documents and
the transactions contemplated hereby and thereby and that no Buyer is (i)&nbsp;an officer or director of the Company or any of its Subsidiaries, (ii)&nbsp;an &#147;affiliate&#148; (as defined in Rule 144 promulgated under the 1933 Act (or a
successor rule thereto) (collectively, &#147;<B>Rule 144</B>&#148;)) of the Company or any of its Subsidiaries or (iii)&nbsp;to its knowledge, a &#147;beneficial owner&#148; of more than 10% of the shares of Common Stock (as defined for purposes of
Rule <FONT STYLE="white-space:nowrap">13d-3</FONT> of the 1934 Act). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to
the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby
is merely incidental to such Buyer&#146;s purchase of the Securities. The Company further represents to each Buyer that the Company&#146;s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the
Company and its representatives. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(g) <U>Placement Agent</U><U>&#146;</U><U>s Fees</U>. The Company shall be responsible for the payment of
any placement agent&#146;s fees, financial advisory fees, or brokers&#146; commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby in connection with the
sale of the Securities. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, attorney&#146;s fees and
<FONT STYLE="white-space:nowrap"><FONT STYLE="white-space:nowrap">out-of-pocket</FONT></FONT> expenses) arising in connection with any such claim. Neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in
connection with the offer or sale of the Securities. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(h) <U>No Integrated Offering</U>. None of the Company, its Subsidiaries or any of
their affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to
require approval of stockholders of the Company for purposes of the 1933 Act or under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on
which any of the securities of the Company are listed or designated for quotation. None of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would cause the offering of any of
the Securities to be integrated with other offerings of securities of the Company. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">7 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>Application of Takeover Protections; Rights Agreement</U>. The Company and its board of
directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill (including, without limitation, any distribution under a rights agreement),
stockholder rights plan or other similar anti-takeover provision under the Certificate of Incorporation (as defined below), Bylaws (as defined below) or other organizational documents or the laws of the jurisdiction of its incorporation or otherwise
which is or could become applicable to any Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company&#146;s issuance of the Securities and any Buyer&#146;s ownership of the Securities. The
Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock (as defined
below) or a change in control of the Company or any of its Subsidiaries. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(j) <U>SEC Documents; Financial Statements</U>. During the two
(2)&nbsp;years prior to the date hereof, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC (excluding any reports of directors, executive officers or
stockholders required by Section&nbsp;16 of the 1934 Act) pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes
and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the &#147;<B>SEC Documents</B>&#148;). The Company has delivered or has made available to the Buyers or their respective representatives true,
correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the
SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements (including, without limitation, any notes or any letter of the
independent accountants of the Company with respect thereto) of the Company included in the SEC Documents (the &#147;<B>Financial Statements</B>&#148;) complied in all material respects with applicable accounting requirements and the published rules
and regulations of the SEC with respect thereto as in effect as of the time of filing. Such Financial Statements have been prepared in accordance with generally accepted accounting principles (&#147;<B>GAAP</B>&#148;), consistently applied, during
the periods involved (except (i)&nbsp;as may be otherwise indicated in such Financial Statements or the notes thereto, or (ii)&nbsp;in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal <FONT STYLE="white-space:nowrap">year-end</FONT> audit adjustments which will not be material, either individually or in the aggregate). The reserves, if any, </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">8 </P>


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established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by the Company on the date hereof and there are no loss contingencies
that are required to be accrued by the Statement of Financial Accounting Standard No.&nbsp;5 of the Financial Accounting Standards Board which are not provided for by the Company in its Financial Statements or otherwise. No other information
provided by or on behalf of the Company to any of the Buyers which is not included in the SEC Documents (including, without limitation, information in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is not currently contemplating to amend or restate any of the
Financial Statements nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance
with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to
amend or restate any of the Financial Statements. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(k) <U>Absence of Certain Changes</U>. Since the date of the Company&#146;s most recent
audited financial statements contained in a Form <FONT STYLE="white-space:nowrap">10-K,</FONT> there has been no material adverse change and no material adverse development in the business, assets, liabilities, properties, operations (including
results thereof), condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries. Since the date of the Company&#146;s most recent audited financial statements contained in a Form
<FONT STYLE="white-space:nowrap">10-K,</FONT> neither the Company nor any of its Subsidiaries has (i)&nbsp;declared or paid any dividends, (ii)&nbsp;sold any assets, individually or in the aggregate, outside of the ordinary course of business or
(iii)&nbsp;made any capital expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to
bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions
contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section&nbsp;3(l), &#147;<B>Insolvent</B>&#148; means, (i)&nbsp;with respect to the Company and its Subsidiaries, on a consolidated basis,
(A)&nbsp;the present fair saleable value of the Company&#146;s and its Subsidiaries&#146; assets is less than the amount required to pay the Company&#146;s and its Subsidiaries&#146; total Indebtedness (as defined below), (B) the Company and its
Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured or (C)&nbsp;the Company and its Subsidiaries intend to incur or believe that they will incur
debts that would be beyond their ability to pay as such debts mature; and (ii)&nbsp;with respect to the Company and each Subsidiary, individually, (A)&nbsp;the present fair saleable value of the Company&#146;s or such Subsidiary&#146;s (as the case
may be) assets is less than the amount required to pay its respective total Indebtedness, (B)&nbsp;the Company or such Subsidiary (as the case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured or (C)&nbsp;the Company or such Subsidiary (as the case may be) intends to incur or believes that it will incur debts that would be beyond its respective ability to pay as such debts mature.
Neither the Company nor </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">9 </P>


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any of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which the Company&#146;s or such Subsidiary&#146;s
remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(l) <U>No Undisclosed Events, Liabilities, Developments or Circumstances</U>. Other than the transactions contemplated by this Agreement or as
disclosed in the SEC Documents, no event, liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or any of their respective businesses,
properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that (i)&nbsp;would be required to be disclosed by the Company under applicable securities laws on a registration statement on Form <FONT
STYLE="white-space:nowrap">S-1</FONT> filed with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly announced, (ii)&nbsp;could have a material adverse effect on any Buyer&#146;s investment
hereunder or (iii)&nbsp;could have a Material Adverse Effect. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(m) <U>Conduct of Business; Regulatory Permit</U><U>s</U>. Neither the
Company nor any of its Subsidiaries is in violation of any term of or in default under its Certificate of Incorporation (as defined below), any certificate of designation, preferences or rights of any other outstanding series of preferred stock of
the Company or any of its Subsidiaries or Bylaws (as defined below) or their organizational charter, certificate of formation, memorandum of association, articles of association, Certificate of Incorporation or certificate of incorporation or
bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor
any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. Without limiting the generality of
the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Common Stock (as
defined below) by the Principal Market in the foreseeable future. During the two years prior to the date hereof, (i)&nbsp;the Common Stock has been listed or designated for quotation on the Principal Market, (ii)&nbsp;trading in the Common Stock has
not been suspended by the SEC or the Principal Market and (iii)&nbsp;except as disclosed in the SEC Documents, the Company has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of
the Common Stock from the Principal Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where
the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its
Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its
Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse
Effect on the Company or any of its Subsidiaries. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">10 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(n) <U>Foreign Corrupt Practices</U>. Neither the Company, the Company&#146;s subsidiary or any
director, officer, agent, employee, nor any other person acting for or on behalf of the foregoing (individually and collectively, a &#147;<B>Company Affiliate</B>&#148;) have violated the U.S. Foreign Corrupt Practices Act (the
&#147;<B>FCPA</B>&#148;) or any other applicable anti-bribery or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the
giving of anything of value, to any officer, employee or any other person acting in an official capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually and collectively,
a &#147;<B>Government Official</B>&#148;) or to any person under circumstances where such Company Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly
or indirectly, to any Government Official, for the purpose of: </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i)&nbsp;(A) influencing any act or decision of such
Government Official in his/her official capacity, (B)&nbsp;inducing such Government Official to do or omit to do any act in violation of his/her lawful duty, (C)&nbsp;securing any improper advantage, or (D)&nbsp;inducing such Government Official to
influence or affect any act or decision of any Governmental Entity, or </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) assisting the Company or its Subsidiaries in
obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(o) <U>Sarbanes-Oxley Act</U>. The
Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.<U> </U> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(p) <U>Transactions With Affiliates</U>. Since January&nbsp;1, 2011, no employee, partner, director, officer or stockholder (direct or
indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing, is presently, or at any
time during such period has been, (i)&nbsp;a party to any transaction with the Company or its Subsidiaries (including any contract, agreement or other arrangement providing for the furnishing of services by, or rental of real or personal property
from, or otherwise requiring payments to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries (other than for ordinary course services as employees, officers or directors of the Company or any of its
Subsidiaries)) or (ii)&nbsp;the direct or indirect owner of an interest in any corporation, firm, association or business organization which is a competitor, supplier or customer of the Company or its Subsidiaries (except for a passive investment
(direct or indirect) in less than 5% of the common stock of a company whose securities are traded on or quoted through an Eligible Market (as defined below)), nor does any such Person receive income from any source other than the Company or its
Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries. No employee, officer, stockholder or director of the Company or any of its Subsidiaries or member of his or
her immediate family is indebted to the Company or its Subsidiaries, as the case may </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">11 </P>


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be, nor is the Company or any of its Subsidiaries indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i)&nbsp;for payment of salary for services
rendered, (ii)&nbsp;reimbursement for reasonable expenses incurred on behalf of the Company, and (iii)&nbsp;for other standard employee benefits made generally available to all employees or executives (including stock option agreements outstanding
under any stock option plan approved by the Board of Directors of the Company). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(q) <U>Equity Capitalization</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>Definitions</U>: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(A) &#147;<B>Common Stock</B>&#148; means (x)&nbsp;the Company&#146;s shares of common stock, $0.01 par value per share, and
(y)&nbsp;any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(B) &#147;<B>Preferred Stock</B>&#148; means (x)&nbsp;the Company&#146;s blank check preferred stock, $0.01 par value per
share, the terms of which may be designated by the board of directors of the Company in a certificate of designations and (y)&nbsp;any capital stock into which such preferred stock shall have been changed or any share capital resulting from a
reclassification of such preferred stock (other than a conversion of such preferred stock into Common Stock in accordance with the terms of such certificate of designations). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) <U>Authorized and Outstanding Capital Stock</U>. As of the date hereof, the authorized capital stock of the Company
consists of (A) 500,000,000 shares of Common Stock, of which, &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; are issued and and (B) 10,000,000 shares of Preferred Stock, 590 of which are issued and outstanding. 10 shares of
Common Stock are held in the treasury of the Company. &#147;<B>Convertible Securities</B>&#148; means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or
indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
</P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) <U>Valid Issuance; Available Shares; Affiliates</U>. All of such outstanding shares are duly authorized and have
been, or upon issuance will be, validly issued and are fully paid and nonassessable. <U>Schedule 3(r)(iii)</U> sets forth the number of shares of Common Stock that are (A)&nbsp;reserved for issuance pursuant to Convertible Securities (other than the
Preferred Shares) and (B)&nbsp;that are, as of the date hereof, owned by Persons who are &#147;affiliates&#148; (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10%
of the Company&#146;s issued and outstanding Common Stock are &#147;affiliates&#148; without conceding that any such Persons are &#147;affiliates&#148; for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the
Company&#146;s knowledge, no Person owns 10% or more of the Company&#146;s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have
been fully exercised&nbsp;or converted&nbsp;(as the case may be) taking account of any limitations on exercise or conversion (including &#147;blockers&#148;) contained therein without conceding that such identified Person is a 10% stockholder for
purposes of federal securities laws). </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">12 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iv) <U>Existing Securities; Obligations</U>. Except as disclosed in the SEC
Documents: (A)&nbsp;none of the Company&#146;s or any Subsidiary&#146;s shares, interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company or any Subsidiary; (B)&nbsp;there
are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock
of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of the Company or any
of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital
stock of the Company or any of its Subsidiaries; (C)&nbsp;there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to
this Agreement); (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (E)&nbsp;there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by
the issuance of the Securities; and (F)&nbsp;neither the Company nor any Subsidiary has any stock appreciation rights or &#147;phantom stock&#148; plans or agreements or any similar plan or agreement. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(v) <U>Organizational Documents</U>. The Company has furnished to the Buyers true, correct and complete copies of the
Company&#146;s Certificate of Incorporation, as amended and as in effect on the date hereof (the &#147;<B>Certificate</B> <B>of Incorporation</B>&#148;), and the Company&#146;s bylaws, as amended and as in effect on the date hereof (the
&#147;<B>Bylaws</B>&#148;), and the terms of all Convertible Securities and the material rights of the holders thereof in respect thereto. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(r) <U>Indebtedness and Other Contracts</U>. Neither the Company nor any of its Subsidiaries, (i)&nbsp;except as set forth in the SEC
Documents, has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its
Subsidiaries is or may become bound, (ii)&nbsp;is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to
result in a Material Adverse Effect, (iii)&nbsp;has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv)&nbsp;is in violation of any term of, or in default under, any
contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v)&nbsp;is a party to any contract, agreement or
instrument relating to any Indebtedness, the </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">13 </P>


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performance of which, in the judgment of the Company&#146;s officers, has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or
obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company&#146;s or its Subsidiaries&#146; respective businesses and which, individually
or in the aggregate, do not or could not have a Material Adverse Effect. For purposes of this Agreement: (x) &#147;<B>Indebtedness</B>&#148; of any Person means, without duplication (A)&nbsp;all indebtedness for borrowed money, (B)&nbsp;all
obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, &#147;capital leases&#148; in accordance with GAAP) (other than trade payables entered into in the ordinary course of
business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D)&nbsp;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)&nbsp;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)&nbsp;all indebtedness referred
to in clauses (A)&nbsp;through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien 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 (H)&nbsp;all Contingent Obligations (as defined below) in respect of indebtedness or
obligations of others of the kinds referred to in clauses (A)&nbsp;through (G) above; and (y) &#147;<B>Contingent Obligation</B>&#148; 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; and (z) &#147;<B>Person</B>&#148;
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any Governmental Entity or any department or agency thereof. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(s) <U>Litigation</U>. There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any
court, public board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company&#146;s
or its Subsidiaries&#146; officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in <U>Schedule 3(t)</U>. No director, officer or employee of the Company or any of its subsidiaries
has willfully violated 18 U.S.C. &#167;1519 or engaged in spoliation in reasonable anticipation of litigation. Without limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries. The SEC has </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">14 </P>


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not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the 1933 Act or the 1934. After reasonable inquiry of its employees,
the Company is not aware of any fact which might result in or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the Company nor any of its Subsidiaries is subject to any order, writ, judgment,
injunction, decree, determination or award of any Governmental Entity. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(t) <U>Insurance</U>. The Company and each of its Subsidiaries are
insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged.
Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for since January&nbsp;1, 2011 and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(u) <U>Employee Relations</U>. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any
member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer (as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its
Subsidiaries has notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such officer&#146;s employment with the Company or any such Subsidiary. No executive officer or
other key employee of the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement,
<FONT STYLE="white-space:nowrap">non-competition</FONT> agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer or other key employee (as the case may be) does not
subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting labor,
employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(v) <U>Title</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>Real Property</U>. Each of the Company and its Subsidiaries holds good title to all real property, leases in real
property, facilities or other interests in real property owned or held by the Company or any of its Subsidiaries (the &#147;<B>Real Property</B>&#148;). Except as described in the SEC Documents, the Real Property is free and clear of all material
Liens and is not subject to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for (a)&nbsp;Liens for current taxes not yet due and (b)&nbsp;zoning laws and other land use
restrictions that do not impair the present or anticipated use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">15 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) <U>Fixtures and Equipment</U>. Each of the Company and its Subsidiaries (as
applicable) has good title to, or a valid leasehold interest in, the tangible personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used by the Company or its Subsidiary in connection with the
conduct of its business (the &#147;<B>Fixtures and Equipment</B>&#148;). The Fixtures and Equipment are structurally sound, are in good operating condition and repair, are adequate for the uses to which they are being put, are not in need of
maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient for the conduct of the Company&#146;s and/or its Subsidiaries&#146; businesses (as applicable) in the manner as conducted prior to the Closing. Except as
described in the SEC Documents, each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except for (i)&nbsp;any Lien for taxes not yet due or delinquent or being contested in good faith by
appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii)&nbsp;any statutory Lien arising in the ordinary course of business by operation of law with respect to a liability that is not yet due or
delinquent, (iii)&nbsp;any Lien created by operation of law, such as materialmen&#146;s liens, mechanics&#146; liens and other similar liens, arising in the ordinary course of business with respect to a liability that is not yet due or delinquent or
that are being contested in good faith by appropriate proceedings, (iv)&nbsp;Liens (A) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price of such equipment or Indebtedness incurred solely
for the purpose of financing the acquisition or lease of such equipment, or (B)&nbsp;existing on such equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the
proceeds of such equipment, (v)&nbsp;Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of custom duties in connection with the importation of goods, (vi)&nbsp;deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money), leases, statutory obligations, indemnity, performance, surety and appeal bonds, purchase agreements and other obligations of like nature arising in the ordinary course of business,
(vii)&nbsp;any interest, Lien or title of a licensor, sublicensor, lessor or sublessor under any license or lease agreement in the property being leased or licensed as permitted hereunder, (viii)&nbsp;rights of setoff or banker&#146;s liens upon
deposits of cash in favor of banks or other depository institutions, but not securing any Indebtedness for money borrower, and (xi)&nbsp;zoning laws and other land use restrictions that do not impair the present or anticipated use of the property
subject thereto. </P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%">&nbsp;</TD>
<TD WIDTH="4%" VALIGN="top" ALIGN="left">(w)</TD>
<TD ALIGN="left" VALIGN="top"><U>Potential Products; FDA; EMEA</U>. </TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) Except as described in the SEC
Documents, the Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business as currently conducted, including without limitation all such
certificates, authorizations and permits required by the United States Food and Drug Administration (the &#147;<B>FDA</B>&#148;) or any other federal, state or foreign agencies or bodies engaged in the regulation of pharmaceuticals or biohazardous
materials, except where the failure to so possess such certificates, authorizations and </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">16 </P>


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permits, individually or in the aggregate, would not result in a Material Adverse Effect. Except as described in the SEC Documents, the Company has not received any notice of proceedings relating
to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) Except to the extent disclosed in the SEC Documents, the Company has not received any written notices or statements from
the FDA, the European Medicines Agency (the &#147;<B>EMEA</B>&#148;) or any other governmental agency, and otherwise has no knowledge or reason to believe, that (i)&nbsp;any drug candidate of the Company described in the SEC Documents (each a
&#147;<B>Potential Product</B>&#148;) may or will be rejected or determined to be <FONT STYLE="white-space:nowrap">non-approvable;</FONT> (ii)&nbsp;a delay in time for review and/or approval of a marketing authorization application or marketing
approval application in any jurisdiction for any Potential Product is or may be required, requested or being implemented; (iii)&nbsp;one or more clinical studies for any Potential Product shall or may be requested or required in addition to the
clinical studies submitted to the FDA prior to the date hereof as a precondition to or condition of issuance or maintenance of a marketing approval for any Potential Product; (iv)&nbsp;any license, approval, permit or authorization to conduct any
clinical trial of or market any product or Potential Product of the Company has been, will be or may be suspended, revoked, modified or limited, except in the cases of clauses (i), (ii), (iii) and (iv)&nbsp;where such rejections, determinations,
delays, requests, suspensions, revocations, modifications or limitations might not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) Except to the extent disclosed in the SEC Documents, to the Company&#146;s knowledge, the preclinical and clinical
testing, application for marketing approval of, manufacture, distribution, promotion and sale of the products and Potential Products of the Company is in compliance, in all material respects, with all laws, rules and regulations applicable to such
activities, including without limitation applicable good laboratory practices, good clinical practices and good manufacturing practices, except for such <FONT STYLE="white-space:nowrap">non-compliance</FONT> as would not, individually or in the
aggregate, have a Material Adverse Effect. The descriptions of the results of such tests and trials contained in the SEC Documents are complete and accurate in all material respects such that there would be no untrue statement of a material fact or
omission of a material fact necessary to make the statements in the SEC Documents, in light of the circumstances under which they are made, not misleading. The Company is not aware of any studies, tests or trial the results of which reasonably call
into question the results of the tests and trials conducted by or on behalf of the Company that are described or referred to in the SEC Documents. Except to the extent disclosed in the SEC Documents, the Company has not received notice of adverse
finding, warning letter or clinical hold notice from the FDA or any <FONT STYLE="white-space:nowrap">non-U.S.</FONT> counterpart of any of the foregoing, or any untitled letter or other correspondence or notice from the FDA or any other governmental
authority or agency or any institutional or ethical review board alleging or asserting noncompliance with any law, rule or regulation applicable in any jurisdiction, except notices, letters, and correspondences and
<FONT STYLE="white-space:nowrap">non-U.S.</FONT> counterparts thereof alleging or asserting such noncompliance as would not, individually or in the aggregate, have a Material Adverse Effect. Except to the extent disclosed in the SEC Documents, the
Company has not, either voluntarily or </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">17 </P>


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involuntarily, initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, field correction, market withdrawal or replacement, safety alert, warning, &#147;dear
doctor&#148; letter, investigator notice, or other notice or action relating to an alleged or potential lack of safety or efficacy of any product or Potential Product of the Company, any alleged product defect of any product or Potential Product of
the Company, or any violation of any material applicable law, rule, regulation or any clinical trial or marketing license, approval, permit or authorization for any product or potential product of the Company, and the Company is not aware of any
facts or information that would cause it to initiate any such notice or action and has no knowledge or reason to believe that the FDA, the EMEA or any other governmental agency or authority or any institutional or ethical review board or other <FONT
STYLE="white-space:nowrap">non-governmental</FONT> authority intends to impose, require, request or suggest such notice or action. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(x)
<U>Intellectual Property Rights</U>. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, original works of authorship, patents,
patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations therefor (&#147;<B>Intellectual Property Rights</B>&#148;) necessary
to conduct their respective businesses as now conducted and presently proposed to be conducted. Each of the patents owned by the Company or any of its Subsidiaries is listed on Schedule 3(y)(i). Except as set forth in Schedule 3(y)(ii), none of the
Company&#146;s Intellectual Property Rights have expired or terminated or have been abandoned or are expected to expire or terminate or are expected to be abandoned, within three years from the date of this Agreement. The Company does not have any
knowledge of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries, being
threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights. Neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any of the foregoing infringements
or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(y) <U>Environmental Laws</U>. The Company and its Subsidiaries (A)&nbsp;are in compliance with any and all Environmental Laws (as defined
below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C)&nbsp;are in compliance with all terms and conditions of any such permit, license
or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term &#147;<B>Environmental Laws</B>&#148; means
all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without
limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, &#147;<B>Hazardous Materials</B>&#148;) into the environment, or
otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">18 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>No Hazardous Materials</U>: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(1) have been disposed of or otherwise released from any Real Property in violation of any Environmental Laws, except where
such violation would not reasonably be expected to have a Material Adverse Effect; or </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(2) are present on, over, beneath,
in or upon any Real Property or any portion thereof in quantities that would constitute a material violation of any Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates any
Environmental Laws, which violation would have a Material Adverse Effect on the business of the Company or any of its Subsidiaries. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) Neither the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated,
recycled, disposed of or otherwise located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and polychlorinated biphenyls. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) None of the Real Property are on any federal or state &#147;Superfund&#148; list or Liability Information System
(&#147;<B>CERCLIS</B>&#148;) list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(z) <U>Subsidiary Rights</U>. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by
applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such Subsidiary. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(aa) <U>Tax Status</U>. The Company and each of its Subsidiaries (i)&nbsp;has timely made or filed all material foreign, federal and state
income and all other material tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)&nbsp;has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii)&nbsp;has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such
claim. The Company is not operated in such a manner as to qualify as a passive foreign investment company, as defined in Section&nbsp;1297 of the U.S. Internal Revenue Code of 1986, as amended (the &#147;<B>Code</B>&#148;). The net operating loss
carryforwards (&#147;<B>NOLs</B>&#148;) for United States federal income tax purposes of the consolidated group of which the Company is the common parent, if any, shall not be adversely effected by the transactions contemplated hereby. The
transactions contemplated hereby do not constitute an &#147;ownership change&#148; within the meaning of Section&nbsp;382 of the Code, thereby preserving the Company&#146;s ability to utilize such NOLs. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">19 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(bb) <U>Internal Accounting and Disclosure Controls</U>. The Company and each of its Subsidiaries
maintains internal control over financial reporting (as such term is defined in Rule <FONT STYLE="white-space:nowrap">13a-15(f)</FONT> under the 1934 Act) that is effective to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including that (i)&nbsp;transactions are executed in accordance with management&#146;s general or specific
authorizations, (ii)&nbsp;transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii)&nbsp;access to assets or incurrence of liabilities is
permitted only in accordance with management&#146;s general or specific authorization and (iv)&nbsp;the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in Rule <FONT STYLE="white-space:nowrap">13a-15(e)</FONT> under the 1934 Act) that are effective in ensuring that
information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without
limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company&#146;s management, including
its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure. During the twelve months prior to the date hereof, except as disclosed in the SEC
Documents, neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental Entity or other Person relating to any potential material weakness or significant deficiency in any part of the
internal controls over financial reporting of the Company or any of its Subsidiaries. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(cc) <U>Off Balance Sheet Arrangements</U>. There is
no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed
or that otherwise could be reasonably likely to have a Material Adverse Effect. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(dd) <U>Investment Company Status</U>. The Company is not,
and upon consummation of the sale of the Securities will not be, an &#147;investment company,&#148; an affiliate of an &#147;investment company,&#148; a company controlled by an &#147;investment company&#148; or an &#147;affiliated person&#148; of,
or &#147;promoter&#148; or &#147;principal underwriter&#148; for, an &#147;investment company&#148; as such terms are defined in the Investment Company Act of 1940, as amended. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ee) <U>Acknowledgement Regarding Buyers</U><U>&#146;</U><U> Trading Activity</U>. It is understood and acknowledged by the Company that
(i)&nbsp;following the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none of the Buyers have been asked by the Company or any of its Subsidiaries to agree, nor has any Buyer
agreed with the Company or any of its Subsidiaries, to desist from effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short) any securities of the Company, or &#147;derivative&#148;
securities based on securities issued by the Company or to hold any of the Securities for any specified term; (ii)&nbsp;any Buyer, and counterparties in &#147;derivative&#148; transactions to which any such Buyer is a party, directly or indirectly,
presently may have a &#147;short&#148; position in the Common Stock which was established prior to such Buyer&#146;s knowledge of the transactions contemplated by the Transaction Documents; and (iii)&nbsp;each Buyer
</P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">20 </P>


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shall not be deemed to have any affiliation with or control over any arm&#146;s length counterparty in any &#147;derivative&#148; transaction. The Company further understands and acknowledges
that following the public disclosure of the transactions contemplated by the Transaction Documents pursuant to the Press Release (as defined below) one or more Buyers may engage in hedging and/or trading activities at various times during the period
that the Securities are outstanding, including, without limitation, during the periods that the value and/or number of the Conversion Shares deliverable with respect to the Preferred Shares are being determined and such hedging and/or trading
activities, if any, can reduce the value of the existing stockholders&#146; equity interest in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such aforementioned
hedging and/or trading activities do not constitute a breach of this Agreement, the Certificate of Designations or any other Transaction Document or any of the documents executed in connection herewith or therewith. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ff) <U>Manipulation of Price</U>. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting
on their behalf has, directly or indirectly, (i)&nbsp;taken any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any
of the Securities, (ii)&nbsp;sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, (iii)&nbsp;paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company or any of its Subsidiaries or (iv)&nbsp;paid or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(gg) <U>U.S. Real Property Holding Corporation</U>. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any of
the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section&nbsp;897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer&#146;s request. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(hh) <U>Transfer Taxes</U>. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to
be paid in connection with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been
complied with. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) <U>Bank Holding Company Act</U>. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding
Company Act of 1956, as amended (the &#147;<B>BHCA</B>&#148;) and to regulation by the Board of Governors of the Federal Reserve System (the &#147;<B>Federal Reserve</B>&#148;). Neither the Company nor any of its Subsidiaries or affiliates owns or
controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by
the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">21 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(jj) <U>Shell Company Status</U>. The Company is not, and has never been, an issuer identified
in, or subject to, Rule 144(i). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(kk) <U>Illegal or Unauthorized Payments; Political Contributions</U>. Neither the Company nor any of its
Subsidiaries nor, to the best of the Company&#146;s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents or other representatives of the Company or any of its Subsidiaries or any other
business entity or enterprise with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services, whether or not in
contravention of applicable law, (i)&nbsp;as a kickback or bribe to any Person or (ii)&nbsp;to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not
involving the direct or indirect use of funds of the Company or any of its Subsidiaries. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ll) <U>Money Laundering</U>. The Company and its
Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all other applicable U.S. and <FONT STYLE="white-space:nowrap">non-U.S.</FONT> anti-money laundering laws and regulations, including, without
limitation, the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i)&nbsp;Executive Order 13224 of September&nbsp;23, 2001 entitled,
&#147;Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism&#148; (66 Fed. Reg. 49079 (2001)); and (ii)&nbsp;any regulations contained in 31 CFR, Subtitle B, Chapter V. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(mm) <U>Management</U>. Except as set forth in <U>Schedule</U><U></U><U>&nbsp;3(oo)</U> hereto, during the past five year period, no current or
former officer or director or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company or any of its Subsidiaries has been the subject of: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) a petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver,
fiscal agent or similar officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing of such petition or such appointment, or any corporation or business association of which such
person was an executive officer at or within two years before the time of the filing of such petition or such appointment; </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) a conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations
that do not relate to driving while intoxicated or driving under the influence); </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining any such person from, or otherwise limiting, the following activities: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(1) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other person regulated by the United States Commodity Futures Trading Commission (the &#147;<B>CFTC</B>&#148;) or an associated person of any of the foregoing, or as an investment adviser, underwriter,
broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such
activity; </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">22 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(2) Engaging in any particular type of business practice; or </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(3) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any
violation of securities laws or commodities laws; </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iv) any order, judgment or decree, not subsequently reversed, suspended
or vacated, of any authority barring, suspending or otherwise limiting for more than sixty (60)&nbsp;days the right of any such person to engage in any activity described in the preceding sub paragraph, or to be associated with persons engaged in
any such activity; </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(v) a finding by a court of competent jurisdiction in a civil action or by the SEC or other authority
to have violated any securities law, regulation or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed, suspended or vacated; or </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(vi) a finding by a court of competent jurisdiction in a civil action or by the CFTC to have violated any federal commodities
law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(nn) <U>Stock Option
Plans</U>. Each stock option granted by the Company was granted (i)&nbsp;in accordance with the terms of the applicable stock option plan of the Company and (ii)&nbsp;with an exercise price at least equal to the fair market value of the Common Stock
on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company&#146;s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no
policy or practice of the Company to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its
Subsidiaries or their financial results or prospects. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(oo) <U>No Disagreements with Accountants and Lawyers</U>. There are no material
disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees
owed to its accountants and lawyers which could affect the Company&#146;s ability to perform any of its obligations under any of the Transaction Documents. In addition, on or prior to the date hereof, the Company had discussions with its accountants
about its Financial Statements previously filed with the SEC. Based on those discussions, the Company has no reason to believe that it will need to restate any such Financial Statements or any part thereof. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(pp) <U>No Additional Agreements</U>. The Company does not have any agreement or understanding with any Buyer with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">23 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(qq) <U>Public Utility Holding Act</U>. None of the Company nor any of its Subsidiaries is a
&#147;holding company,&#148; or an &#147;affiliate&#148; of a &#147;holding company,&#148; as such terms are defined in the Public Utility Holding Act of 2005. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(rr) <U>Federal Power Act</U>. None of the Company nor any of its Subsidiaries is subject to regulation as a &#147;public utility&#148; under
the Federal Power Act, as amended. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ss) <U>Disclosure</U>. The Company confirms that neither it nor any other Person acting on its behalf
has provided any of the Buyers or their agents or counsel with any information that constitutes or could reasonably be expected to constitute material, <FONT STYLE="white-space:nowrap">non-public</FONT> information concerning the Company or any of
its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations in effecting
transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on
behalf of the Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries to each Buyer pursuant to or in connection with this Agreement and the
other Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each press release issued by the Company or any of its Subsidiaries during the twelve (12)&nbsp;months preceding
the date of this Agreement did not at the time of release contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations
(including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been so publicly disclosed.
All financial projections and forecasts that have been prepared by or on behalf of the Company or any of its Subsidiaries and made available to you have been prepared in good faith based upon reasonable assumptions and represented, at the time each
such financial projection or forecast was delivered to each Buyer, the Company&#146;s best estimate of future financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts and that the actual
results during the period or periods covered by any such financial projections or forecasts may differ from the projected or forecasted results). The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section&nbsp;1(d). </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">24 </P>


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<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>4.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>COVENANTS. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Best Efforts</U>. Each Buyer shall use its best efforts to timely
satisfy each of the covenants hereunder and conditions to be satisfied by it as provided in Section&nbsp;6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by
it as provided in Section&nbsp;7 of this Agreement. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Blue Sky</U>. The Company shall, on or before the Closing Date, take such
action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Preferred Shares for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or &#147;Blue
Sky&#148; laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to the Closing Date. Without limiting any other obligation of the
Company under this Agreement, the Company shall timely make all filings and reports relating to the offer and sale of the Preferred Shares required under all applicable securities laws (including, without limitation, all applicable federal
securities laws and all applicable &#147;Blue Sky&#148; laws), and the Company shall comply with all applicable foreign, federal, state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Preferred
Shares to the Buyers. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Reporting Status</U>. Until the earlier of (x)&nbsp;the date on which the Buyers shall have sold all of the
Underlying Securities (as defined below) or (y)&nbsp;the date no Securities are held by any Buyer (the &#147;<B>Reporting Period</B>&#148;), the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and
the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination. &#147;<B>Underlying
Securities</B>&#148; means the (i)&nbsp;the Conversion Shares, and (ii)&nbsp;any capital stock of the Company issued or issuable with respect to the Conversion Shares, the Certificate of Designations or the Preferred Shares, respectively, including,
without limitation, (1)&nbsp;as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise and (2)&nbsp;shares of capital stock of the Company into which the shares of Common Stock are converted or
exchanged and shares of capital stock of a Successor Entity (as defined in the Certificate of Designations) into which the shares of Common Stock are converted or exchanged, in each case, without regard to any limitations on conversion of the
Preferred Shares. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>Use of Proceeds</U>. The Company will use the proceeds from the sale of the Securities for general corporate
purposes, but not, directly or indirectly, for (i)&nbsp;except as set forth on Schedule 4(g), the satisfaction of any indebtedness of the Company or any of its Subsidiaries, (ii)&nbsp;the redemption or repurchase of any securities of the Company or
any of its Subsidiaries, or (iii)&nbsp;the settlement of any outstanding litigation. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(e) <U>Financial Information</U>. The Company agrees
to send the following to each holder of Preferred Shares (each, an &#147;<B>Investor</B>&#148;) during the Reporting Period (i)&nbsp;unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system,
within one (1)&nbsp;Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form <FONT STYLE="white-space:nowrap">10-K</FONT> and Quarterly Reports on Form <FONT STYLE="white-space:nowrap">10-Q,</FONT> any Current Reports
on Form <FONT STYLE="white-space:nowrap">8-K</FONT> and any registration statements (other than on Form <FONT STYLE="white-space:nowrap">S-8)</FONT> or amendments filed pursuant to the 1933 Act, (ii)&nbsp;unless the following are either filed with
the SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire), on the same day as the release thereof, facsimile copies of all press releases issued by the Company or any of its Subsidiaries
and (iii)&nbsp;unless the following are filed with the SEC through EDGAR or made permanently available on the Company&#146;s website, copies of any notices and other information made available or given to the stockholders of the Company generally,
contemporaneously with the making available or giving thereof to the stockholders.<B> </B> </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">25 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(f) <U>Listing</U>. The Company shall promptly secure the listing or designation for quotation
(as the case may be) of all of the Underlying Securities (as defined below) upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated for quotation (as the case may be)
(subject to official notice of issuance) and shall maintain such listing or designation for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the Transaction Documents on such national
securities exchange or automated quotation system. The Company shall maintain the Common Stock&#146;s listing or authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE MKT, the Nasdaq Global
Market or the Nasdaq Global Select Market (each, an &#147;<B>Eligible Market</B>&#148;). Neither the Company nor any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the Common
Stock on an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section&nbsp;4(i). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(g) <U>Fees</U>. The Company shall reimburse the lead Buyer for all reasonable costs and expenses incurred by it or its affiliates in
connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents (including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of
Kelley Drye&nbsp;&amp; Warren, LLP, counsel to the lead Buyer (which, for the avoidance of doubt, does not include any amounts due and payable to any Buyer or Kelley Drye&nbsp;&amp; Warren, LLP prior to the date hereof, the &#147;<B>Prior
Expenses</B>&#148;), any other reasonable fees and expenses in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents and due diligence and regulatory filings in
connection therewith) (the &#147;<B>Transaction Expenses</B>&#148;) and such Transaction Expenses and any remaining Prior Expenses shall be withheld by the lead Buyer from its Purchase Price at the Closing; provided, that the Company shall promptly
reimburse Kelley Drye&nbsp;&amp; Warren, LLP on demand for all Transaction Expenses not so reimbursed through such withholding at the Closing. The Company shall be responsible for the payment of any placement agent&#146;s fees, financial advisory
fees, transfer agent fees, Depository Trust Company (&#147;<B>DTC</B>&#148;) fees or broker&#146;s commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby. The Company shall pay,
and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys&#146; fees and <FONT STYLE="white-space:nowrap"><FONT STYLE="white-space:nowrap">out-of-pocket</FONT></FONT> expenses) arising
in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Buyers.<B> </B> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(h) <U>Pledge of Securities</U>. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that
the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment
of the Securities hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction
Document. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by a Buyer.<B> </B> </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">26 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>Disclosure of Transactions and Other Material Information</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>Disclosure of Transaction</U>. The Company shall, on or before 9:30&nbsp;a.m., New York time, on the first (1<SUP
STYLE="font-size:85%; vertical-align:top">st</SUP>) Business Day after the date of this Agreement, issue a press release (the &#147;<B>Press Release</B>&#148;) reasonably acceptable to the Buyers disclosing all the material terms of the transactions
contemplated by the Transaction Documents. On or before 9:30 a.m., New York time, on the first (1<SUP STYLE="font-size:85%; vertical-align:top">st</SUP>) Business Day after the date of this Agreement, the Company shall file a Current Report on Form <FONT
STYLE="white-space:nowrap">8-K</FONT> describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction Documents (including, without
limitation, this Agreement (and all schedules to this Agreement) and the form of Certificate of Designations) (including all attachments, the &#147;<B><FONT STYLE="white-space:nowrap">8-K</FONT> Filing</B>&#148;). From and after the filing of the <FONT
STYLE="white-space:nowrap">8-K</FONT> Filing, the Company shall have disclosed all material, <FONT STYLE="white-space:nowrap">non-public</FONT> information (if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of
their respective officers, directors, employees or agents prior to the date hereof. In addition, effective upon the filing of the <FONT STYLE="white-space:nowrap">8-K</FONT> Filing, the Company acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers
or any of their affiliates, on the other hand, shall terminate. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) <U>Limitations on Disclosure</U>. The Company shall
not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide any Buyer with any material, <FONT STYLE="white-space:nowrap">non-public</FONT> information
regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be granted or withheld in such Buyer&#146;s sole discretion). In the event of a breach of any of the
foregoing covenants, including, without limitation, Section&nbsp;4(o) of this Agreement, or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries, or any of its or their respective
officers, directors, employees and agents (as determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, <FONT STYLE="white-space:nowrap">non-public</FONT> information, as applicable, without the prior approval by the Company, any of its
Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, affiliates,
stockholders or agents, for any such disclosure. To the extent that the Company delivers any material, <FONT STYLE="white-space:nowrap">non-public</FONT> information to a Buyer without such Buyer&#146;s consent, the Company hereby covenants and
agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, <FONT STYLE="white-space:nowrap">non-public</FONT> information. Subject to the foregoing, neither the Company,
its Subsidiaries nor any Buyer shall issue any press </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">27 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; font-size:10pt; font-family:Times New Roman">
releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to make
the Press Release and any press release or other public disclosure with respect to such transactions (i)&nbsp;in substantial conformity with the <FONT STYLE="white-space:nowrap">8-K</FONT> Filing and contemporaneously therewith and (ii)&nbsp;as is
required by applicable law and regulations (provided that in the case of clause (i)&nbsp;each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without the prior
written consent of the applicable Buyer (which may be granted or withheld in such Buyer&#146;s sole discretion), except as required by applicable law or regulation, the Company shall not (and shall cause each of its Subsidiaries and affiliates to
not) disclose the name of such Buyer in any filing, announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly
acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed
that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, <FONT STYLE="white-space:nowrap">non-public</FONT> information regarding the Company or
any of its Subsidiaries. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) <U>Other Confidential Information</U>. In addition to other remedies set forth in this
Section&nbsp;4(l), and without limiting anything set forth in any other Transaction Document, at any time after the Closing Date if the Company, any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides
any Buyer with material <FONT STYLE="white-space:nowrap">non-public</FONT> information relating to the Company or any of its Subsidiaries (each, the &#147;<B>Confidential Information</B>&#148;), the Company shall, as promptly as practicable,
publicly disclose such Confidential Information on a Current Report on Form <FONT STYLE="white-space:nowrap">8-K</FONT> or otherwise (each, a &#147;<B>Disclosure</B>&#148;). From and after such Disclosure, the Company shall have disclosed all
Confidential Information provided to such Buyer by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition,
effective upon such Disclosure, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(j) <U>Conduct of Business</U>. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or
regulation of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(k) <U>Participation Right</U>. Until the eighteen month anniversary of the date hereof, neither the Company nor any of its Subsidiaries shall,
directly or indirectly, effect any Subsequent Placement (as defined below) unless the Company shall have first complied with this Section&nbsp;4(o). The Company acknowledges and agrees that the right set forth in this Section&nbsp;4(o) is a right
granted by the Company, separately, to each Buyer. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">28 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) At least three (3)&nbsp;Trading Days (as defined in the Notes) prior to any
proposed or intended Subsequent Placement, the Company shall deliver to each Buyer a written notice (each such notice, a &#147;<B><FONT STYLE="white-space:nowrap">Pre-Notice</FONT></B>&#148;), which <FONT STYLE="white-space:nowrap">Pre-Notice</FONT>
shall not contain any information (including, without limitation, material, <FONT STYLE="white-space:nowrap">non-public</FONT> information) other than: (A)&nbsp;if the proposed Offer Notice (as defined below) constitutes or contains material,
non-public information, a statement asking whether the Investor is willing to accept material <FONT STYLE="white-space:nowrap">non-public</FONT> information or (B)&nbsp;if the proposed Offer Notice does not constitute or contain material, <FONT
STYLE="white-space:nowrap">non-public</FONT> information, (x)&nbsp;a statement that the Company proposes or intends to effect a Subsequent Placement, (y)&nbsp;a statement that the statement in clause (x)&nbsp;above does not constitute material, <FONT
STYLE="white-space:nowrap">non-public</FONT> information and (z)&nbsp;a statement informing such Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the
written request of a Buyer within three (3)&nbsp;Trading Days after the Company&#146;s delivery to such Buyer of such <FONT STYLE="white-space:nowrap">Pre-Notice,</FONT> and only upon a written request by such Buyer, the Company shall promptly, but
no later than one (1)&nbsp;Trading Day after such request, deliver to such Buyer an irrevocable written notice (the &#147;<B>Offer Notice</B>&#148;) of any proposed or intended issuance or sale or exchange (the &#147;<B>Offer</B>&#148;) of the
securities being offered (the &#147;<B>Offered Securities</B>&#148;) in a Subsequent Placement, which Offer Notice shall (A)&nbsp;identify and describe the Offered Securities, (B)&nbsp;describe the price and other terms upon which they are to be
issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C)&nbsp;identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and
(D)&nbsp;offer to issue and sell to or exchange with such Buyer in accordance with the terms of the Offer such Buyer&#146;s pro rata portion of 45% of the Offered Securities, provided that the number of Offered Securities which such Buyer shall have
the right to subscribe for under this Section&nbsp;4(o) shall be (x)&nbsp;based on such Buyer&#146;s pro rata portion of the aggregate original principal amount of the Notes purchased hereunder by all Buyers (the &#147;<B>Basic Amount</B>&#148;),
and (y)&nbsp;with respect to each Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase or acquire should the
other Buyers subscribe for less than their Basic Amounts (the &#147;<B>Undersubscription Amount</B>&#148;), which process shall be repeated until each Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) To accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the
third (3rd) Business Day after such Buyer&#146;s receipt of the Offer Notice in the event that the Offer relates to an underwritten Subsequent Placement (as applicable, the &#147;<B>Offer Period</B>&#148;), setting forth the portion of such
Buyer&#146;s Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the &#147;<B>Notice of
Acceptance</B>&#148;). If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in
addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic
Amounts subscribed for (the &#147;<B>Available</B> </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">29 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; font-size:10pt; font-family:Times New Roman">
<B>Undersubscription Amount</B>&#148;), each Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as
the Basic Amount of such Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the
Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Buyer a new Offer Notice and the Offer Period shall expire on the third (3rd) Business Day after
such Buyer&#146;s receipt of such new Offer Notice. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) The Company shall have five (5)&nbsp;Business Days from the
expiration of the Offer Period above (A)&nbsp;to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Buyer (the &#147;<B>Refused Securities</B>&#148;) pursuant to a
definitive agreement(s) (the &#147;<B>Subsequent Placement Agreement</B>&#148;), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and
interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B)&nbsp;to publicly announce (x)&nbsp;the execution of such Subsequent Placement Agreement,
and (y)&nbsp;either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II)&nbsp;the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form <FONT
STYLE="white-space:nowrap">8-K</FONT> with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and
on the terms specified in Section&nbsp;4(o)(iii) above), then each Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of
Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Buyer elected to purchase pursuant to Section&nbsp;4(o)(ii) above multiplied by a fraction, (i)&nbsp;the numerator of which shall be the
number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section&nbsp;4(o) prior to such reduction) and (ii)&nbsp;the denominator of
which shall be the original amount of the Offered Securities. In the event that any Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the
reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Buyers in accordance with Section&nbsp;4(o)(i) above. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Buyer shall
acquire from the Company, and the Company shall issue to such Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section&nbsp;4(o)(iv) above if such Buyer has so elected, upon the terms
and conditions specified in the Offer. The purchase by such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Buyer of a separate purchase agreement relating to such Offered
Securities reasonably satisfactory in form and substance to such Buyer and its counsel. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">30 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(vi) Any Offered Securities not acquired by a Buyer or other Persons in
accordance with this Section&nbsp;4(o) may not be issued, sold or exchanged until they are again offered to such Buyer under the procedures specified in this Agreement. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(vii) The Company and each Buyer agree that if any Buyer elects to participate in the Offer, neither the Subsequent Placement
Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the &#147;<B>Subsequent Placement Documents</B>&#148;) shall include any term or provision whereby such Buyer shall be required to agree to any
restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company
or any instrument received from the Company. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(viii) Notwithstanding anything to the contrary in this Section&nbsp;4(o) and
unless otherwise agreed to by such Buyer, the Company shall either confirm in writing to such Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered
Securities, in either case, in such a manner such that such Buyer will not be in possession of any material, <FONT STYLE="white-space:nowrap">non-public</FONT> information, by the fifth (5<SUP STYLE="font-size:85%; vertical-align:top">th</SUP>)
Business Day following delivery of the Offer Notice. If by such fifth (5<SUP STYLE="font-size:85%; vertical-align:top">th</SUP>) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no
notice regarding the abandonment of such transaction has been received by such Buyer, such transaction shall be deemed to have been abandoned and such Buyer shall not be in possession of any material,
<FONT STYLE="white-space:nowrap">non-public</FONT> information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Buyer
with another Offer Notice and such Buyer will again have the right of participation set forth in this Section&nbsp;4(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Buyer in any sixty (60)&nbsp;day period,
except as expressly contemplated by the last sentence of Section&nbsp;4(o)(ii). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ix) The restrictions contained in this
Section&nbsp;4(o) shall not apply in connection with the issuance of any Excluded Securities (as defined below). The Company shall not circumvent the provisions of this Section&nbsp;4(o) by providing terms or conditions to one Buyer that are not
provided to all. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(x) For the purpose of this Section&nbsp;4(o) the following definitions shall apply: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(1) &#147;<B>Approved Stock Plan</B>&#148; means any employee benefit plan which has been approved by the board of directors of
the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as
such. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">31 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(2) &#147;<B>Excluded Securities</B>&#148; means any (i)&nbsp;shares of Common
Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1)&nbsp;all such issuances (taking into account the
shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i)&nbsp;do not, in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date hereof and
(2)&nbsp;the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any
manner that adversely affects any of the Buyers; (ii)&nbsp;shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that
are covered by clause (i)&nbsp;above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or
other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities
(other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i)&nbsp;above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock
issued pursuant to an Approved Stock Plan that are covered by clause (i)&nbsp;above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options
to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i)&nbsp;above) are otherwise materially changed in any manner that adversely affects any of the Buyers; and (iii)&nbsp;the Conversion Shares. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(3) &#147;<B>Subsequent Placement</B>&#148; means any, direct or indirect, issuance, offer, sale, grant of any option or right
to purchase, or otherwise disposition of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation,
any &#147;equity security&#148; (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant,
disposition or announcement occurring at any time after the date. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(l) <U>Passive Foreign Investment Company</U>. The Company shall conduct
its business, and shall cause its Subsidiaries to conduct their respective businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign investment company within the meaning of Section&nbsp;1297 of
the Code. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(m) <U>Corporate Existence</U>. So long as any Buyer beneficially owns any Preferred Shares, the Company shall not be party to
any Fundamental Transaction (as defined in the Certificate of Designations) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Certificate of Designations. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">32 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(n) <U>Regulation M</U>. The Company will not take any action prohibited by Regulation M under
the 1934 Act, in connection with the distribution of the Securities contemplated hereby. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(o) <U>Closing Documents</U>. On or prior to
fourteen (14)&nbsp;calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered, to each Buyer and Kelley Drye&nbsp;&amp; Warren, LLP a complete closing set of the executed Transaction Documents, Securities and any
other document required to be delivered to any party pursuant to Section&nbsp;7 hereof or otherwise. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(p) Floor Acknowledgement. The
parties hereto acknowledge and agree that, with respect to the Notes, the &#147;<B>Conversion Price Floor</B>&#148; means $0.05, and this floor will <U>not</U> be adjusted upward for any reverse split of the Common Stock. </P>
<P STYLE="font-size:18pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>5.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>REGISTER; LEGEND. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Register</U>. The Company shall maintain at its principal
executive offices (or such other office or agency of the Company as it may designate by notice to each holder of Securities), a register for the Preferred Shares in which the Company shall record the name and address of the Person in whose name the
Preferred Shares have been issued (including the name and address of each transferee), the number of Preferred Shares held by such Person and the number of Conversion Shares issuable upon conversion of the Preferred Shares held by such Person. The
Company shall keep the register open and available at all times during business hours for inspection of any Buyer or its legal representatives.<B> </B> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Legends</U>. Certificates and any other instruments evidencing the Securities shall not bear any restrictive or other legend.<B> </B>
</P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>FAST Compliance</U>. While any Preferred Shares remain outstanding, the Company shall maintain a transfer agent that participates
in the DTC Fast Automated Securities Transfer Program.<B> </B> </P> <P STYLE="font-size:18pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>6.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>CONDITIONS TO THE COMPANY&#146;S OBLIGATION TO SELL. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) The obligation of the Company
hereunder to issue and sell the Preferred Shares<B> </B>to each Buyer at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company&#146;s sole
benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) Such Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the
Company. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of
any Buyer, the amounts withheld pursuant to Section&nbsp;4(j)) for the Preferred Shares being purchased by such Buyer at the Closing by wire transfer of immediately available funds in accordance with the Flow of Funds Letter. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">33 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) The representations and warranties of such Buyer shall be true and correct
in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific
date), and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Closing
Date. </P> <P STYLE="font-size:18pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>7.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>CONDITIONS TO EACH BUYER&#146;S OBLIGATION TO PURCHASE. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) The obligation of each
Buyer hereunder to purchase its Preferred Shares at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for each Buyer&#146;s sole benefit and may be
waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i)
The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents and the Company shall have duly executed and delivered to such Buyer such aggregate number of Preferred Shares set forth across from such Buyer&#146;s
name in column (3)&nbsp;of the Schedule of Buyers being purchased by such Buyer at the Closing pursuant to this Agreement. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) Such Buyer shall have received the opinion of Wexler, Burkhart, Hirschberg&nbsp;&amp; Unger, LLP, the Company&#146;s
counsel, dated as of the Closing Date, in the form reasonably acceptable to such Buyer. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) The Company shall have
delivered to such Buyer a certified copy of the Certificate of Incorporation and the Certificate of Designations as certified by the Delaware Secretary of State within ten (10)&nbsp;days of the Closing Date. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iv) The Company shall have delivered to such Buyer a certificate, in the form reasonably acceptable to such Buyer, executed by
the Secretary of the Company and dated as of the Closing Date, as to (i)&nbsp;the resolutions consistent with Section&nbsp;3(a) as adopted by the Company&#146;s board of directors in a form reasonably acceptable to such Buyer, (ii)&nbsp;the
Certificate of Incorporation of the Company and (iii)&nbsp;the Bylaws of the Company, each as in effect at the Closing. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(v) Each and every representation and warranty of the Company contained in the Transaction Documents shall be true and correct
in all respects as of the date when made and in all material respects (without duplication of any materiality qualifier contained therein) as of the Closing Date as though originally made at that time (except for representations and warranties that
speak as of a specific date, which shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such specific date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date that have not been waived by all Buyers. Such Buyer shall have received a
certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form reasonably acceptable to such
Buyer. </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">34 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(vi) The Company shall have delivered to such Buyer a letter from the
Company&#146;s transfer agent certifying the number of shares of Common Stock outstanding on the Business Day immediately prior to the Closing Date. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(vii) The Common Stock (A)&nbsp;shall be designated for quotation or listed (as applicable) on the Principal Market and
(B)&nbsp;shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor, except as disclosed in the SEC Documents, shall suspension by the SEC or the Principal Market have been
threatened (with a reasonable prospect of delisting or suspension occurring after giving effect to all applicable notice, appeal, compliance and hearing periods), as of the Closing Date, either (I)&nbsp;in writing by the SEC or the Principal Market
or (II)&nbsp;by falling below the minimum maintenance requirements of the Principal Market. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(viii) The Company shall have
obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, if any. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ix) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(x) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have
or result in a Material Adverse Effect. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(xi) Such Buyer shall have received a letter on the letterhead of the Company,
duly executed by the Chief Executive Officer of the Company, setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company (the &#147;<B>Flow of Funds Letter</B>&#148;). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(xii) From the date hereof to the Closing Date, (i)&nbsp;trading in the Common Stock shall not have been suspended by the SEC
or the Principal Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, (ii)&nbsp;at any time prior to the Closing Date, trading in securities
generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium
have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case, in the reasonable judgment of each Buyer, makes it impracticable or inadvisable to purchase the Securities at the Closing </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">35 </P>


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<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>8.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>TERMINATION. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">In the event that the Closing shall not have occurred with respect to a
Buyer within two (2)&nbsp;Business Days of the date hereof, then such Buyer shall have the right to terminate its obligations under this Agreement with respect to itself at any time on or after the close of business on such date without liability of
such Buyer to any other party; provided, however, (i)&nbsp;the right to terminate this Agreement under this Section&nbsp;8 shall not be available to such Buyer if the failure of the transactions contemplated by this Agreement to have been
consummated by such date is the result of such Buyer&#146;s breach of this Agreement and (ii)&nbsp;the abandonment of the sale and purchase of the Preferred Shares shall be applicable only to such Buyer providing such written notice, provided
further that no such termination shall affect any obligation of the Company under this Agreement to reimburse such Buyer for the expenses described in Section&nbsp;4(j) above. Nothing contained in this Section&nbsp;8 shall be deemed to release any
party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under
this Agreement or the other Transaction Documents. </P> <P STYLE="font-size:24pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" BORDER="0" CELLPADDING="0" CELLSPACING="0" WIDTH="100%">
<TR style = "page-break-inside:avoid">
<TD WIDTH="4%" VALIGN="top" ALIGN="left"><B>9.</B></TD>
<TD ALIGN="left" VALIGN="top"><B>MISCELLANEOUS. </B></TD></TR></TABLE> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(a) <U>Governing Law; Jurisdiction; Jury Trial</U>. All questions
concerning the construction, validity, enforcement and interpretation of this Agreement 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. The Company 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 under any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address
for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company&#146;s obligations to such
Buyer or to enforce a judgment or other court ruling in favor of such Buyer. <B>EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR </B><B>UNDER ANY
OTHER TRANSACTION DOCUMENT OR </B><B>IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT</B><B>, ANY OTHER TRANSACTION DOCUMENT</B><B> OR ANY TRANSACTION CONTEMPLATED HEREBY</B><B> OR THEREBY</B><B>.</B><B> </B> </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">36 </P>


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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(b) <U>Counterparts</U>. This Agreement may be executed in two or more identical counterparts,
all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile transmission or by an
<FONT STYLE="white-space:nowrap">e-mail</FONT> which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such signature page were an original thereof. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(c) <U>Headings; Gender</U>. The
headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine,
feminine, neuter, singular and plural forms thereof. The terms &#147;including,&#148; &#147;includes,&#148; &#147;include&#148; and words of like import shall be construed broadly as if followed by the words &#147;without limitation.&#148; The terms
&#147;herein,&#148; &#147;hereunder,&#148; &#147;hereof&#148; and words of like import refer to this entire Agreement instead of just the provision in which they are found. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(d) <U>Severability; Maximum Payment Amounts</U>. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid
or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the
subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as
possible to that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document (and without implication that the following is required or applicable),
it is the intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the case may be), or payable to or received by any of the Buyers, under the Transaction Documents (including without
limitation, any amounts that would be characterized as &#147;interest&#148; under applicable law) exceed amounts permitted under any applicable law. Accordingly, if any obligation to pay, payment made to any Buyer, or collection by any Buyer
pursuant the Transaction Documents is finally judicially determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed to have been made by mutual mistake of such Buyer, the Company and its
Subsidiaries and such amount shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment shall be effected, to the
extent necessary, by reducing or refunding, at the option of such Buyer, the amount of interest or any other amounts which would constitute unlawful amounts required to be paid or actually paid to such Buyer under the Transaction Documents. For
greater certainty, to the </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">37 </P>


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extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by such Buyer under any of the Transaction Documents or related thereto are held to be within
the meaning of &#147;interest&#148; or another applicable term to otherwise be violative of applicable law, such amounts shall be <FONT STYLE="white-space:nowrap">pro-rated</FONT> over the period of time to which they relate. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(e) <U>Entire Agreement; Amendments</U>. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and
thereto and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any
transactions by any Buyer with respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the
instruments referenced herein and therein contain the entire understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained in this Agreement or any other Transaction Document shall
(or shall be deemed to)&nbsp;(i) have any effect on any agreements any Buyer has entered into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date hereof with respect to any prior investment
made by such Buyer in the Company or (ii)&nbsp;waive, alter, modify or amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement entered into prior
to the date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received from the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments
shall continue in full force and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. For clarification purposes, the
Recitals are part of this Agreement. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below), and any amendment to any provision of this Agreement made in
conformity with the provisions of this Section&nbsp;9(e) shall be binding on all Buyers and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that it (A)&nbsp;applies to less than all of the
holders of the Securities then outstanding or (B)&nbsp;imposes any obligation or liability on any Buyer without such Buyer&#146;s prior written consent (which may be granted or withheld in such Buyer&#146;s sole discretion). No waiver shall be
effective unless it is in writing and signed by an authorized representative of the waiving party, provided that the Required Holders may waive any provision of this Agreement, and any waiver of any provision of this Agreement made in conformity
with the provisions of this Section&nbsp;9(e) shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be effective to the extent that it (1)&nbsp;applies to less than all of the holders of the
Securities then outstanding (unless a party gives a waiver as to itself only) or (2)&nbsp;imposes any obligation or liability on any Buyer without such Buyer&#146;s prior written consent (which may be granted or withheld in such Buyer&#146;s sole
discretion). No consideration (other than reimbursement of legal fees) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration also is
offered to all of the parties to the Transaction Documents or all holders of Preferred Shares (as the case may be). From the date hereof and while any Preferred Shares are outstanding, the Company shall not be permitted to receive any consideration
from a Buyer or a holder of Preferred Shares that is not otherwise contemplated by the Transaction Documents in order to, directly or indirectly, induce the </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">38 </P>


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Company or any Subsidiary (i)&nbsp;to treat such Buyer or holder of Preferred Shares in a manner that is more favorable than to other similarly situated Buyers or holders of Preferred Shares, or
(ii)&nbsp;to treat any Buyer(s) or holder(s) of Preferred Shares in a manner that is less favorable than the Buyer or holder of Preferred Shares that is paying such consideration; provided, however, that the determination of whether a Buyer has been
treated more or less favorably than another Buyer shall disregard any securities of the Company purchased or sold by any Buyer. The Company has not, directly or indirectly, made any agreements with any Buyers relating to the terms or conditions of
the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment or
promise or has any other obligation to provide any financing to the Company, any Subsidiary or otherwise. As a material inducement for each Buyer to enter into this Agreement, the Company expressly acknowledges and agrees that (x)&nbsp;no due
diligence or other investigation or inquiry conducted by a Buyer, any of its advisors or any of its representatives shall affect such Buyer&#146;s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the
Company&#146;s representations and warranties contained in this Agreement or any other Transaction Document and (y)&nbsp;unless a provision of this Agreement or any other Transaction Document is expressly preceded by the phrase &#147;except as
disclosed in the SEC Documents,&#148; nothing contained in any of the SEC Documents shall affect such Buyer&#146;s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company&#146;s representations and
warranties contained in this Agreement or any other Transaction Document. &#147;<B>Required Holders</B>&#148; means (I)&nbsp;prior to the Closing Date, Buyers entitled to purchase, in the aggregate, at least a majority of the number of Preferred
Shares at the Closing and (II)&nbsp;on or after the Closing Date, holders of, in the aggregate, at least a majority of the Underlying Securities as of such time (excluding any Underlying Securities held by the Company or any of its Subsidiaries as
of such time) issued or issuable hereunder or pursuant to the Certificate of Designations or the (or the Buyers, with respect to any waiver or amendment of Section&nbsp;4(o)); provided, that such Buyers or holders of Underlying Securities, as
applicable, must include Hudson Bay Master Fund Ltd. so long as it holds at least 20% of the Underlying Securities (on an <FONT STYLE="white-space:nowrap">as-converted</FONT> and <FONT STYLE="white-space:nowrap">as-exercised</FONT> basis without
regard to any limitations on conversion or exercise thereof) initially held by Hudson Bay Master Fund Ltd. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(f) <U>Notices</U>. Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i)&nbsp;upon receipt, when delivered personally; (ii)&nbsp;upon
receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or electronic mail; or (iii)&nbsp;one (1) Business Day after deposit with an overnight courier
service with next day delivery specified, in each case, properly addressed to the party to receive the same. The addresses, facsimile numbers and <FONT STYLE="white-space:nowrap">e-mail</FONT> addresses for such communications shall be: </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">39 </P>


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<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Delcath Systems, Inc. </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">1633
Broadway, Suite 22C </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">New York, New York 10019 </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Telephone: (212) <FONT STYLE="white-space:nowrap">489-2100</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Facsimile: (212) <FONT STYLE="white-space:nowrap">489-2102</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Attention: Chief Executive Officer </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman"><FONT STYLE="white-space:nowrap">E-Mail:</FONT> jsimpson@delcath.com </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; font-size:10pt; font-family:Times New Roman">With a copy (for informational purposes only) to: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Wexler, Burkhart, Hirschberg&nbsp;&amp; Unger, L.P. </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">377 Oak Street, Concourse Level </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Garden City, NY 11530 </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Telephone: (516) <FONT STYLE="white-space:nowrap">222-2230</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Facsimile: (516) <FONT STYLE="white-space:nowrap">745-6449</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Attention: Jolie Kahn, Esq. </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman"><FONT
STYLE="white-space:nowrap">E-Mail:</FONT> jkahn@wbhulaw.com </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">If to the Transfer Agent: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">American Stock Transfer&nbsp;&amp; Trust Company, LLC </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">6201 15th Avenue </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Brooklyn, New
York 11219 </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Telephone: (718) <FONT STYLE="white-space:nowrap">921-8200</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Facsimile: (718) <FONT STYLE="white-space:nowrap">765-8713</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Attention: Leicia Savinetti </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman"><FONT
STYLE="white-space:nowrap">E-Mail:</FONT> lsavinetti@amstock.com </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; font-size:10pt; font-family:Times New Roman">If to a Buyer, to its address,
<FONT STYLE="white-space:nowrap">e-mail</FONT> address and facsimile number set forth on the Schedule of Buyers, with copies to such Buyer&#146;s representatives as set forth on the Schedule of Buyers, </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; font-size:10pt; font-family:Times New Roman">with a copy (for informational purposes only) to: </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Kelley Drye&nbsp;&amp; Warren LLP </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">101 Park Avenue </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">New York, NY
10178 </P> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Telephone: (212) <FONT STYLE="white-space:nowrap">808-7540</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Facsimile: (212) <FONT STYLE="white-space:nowrap">808-7897</FONT> </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman">Attention: Michael A. Adelstein, Esq. </P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:13%; font-size:10pt; font-family:Times New Roman"><FONT STYLE="white-space:nowrap">E-mail:</FONT> madelstein@kelleydrye.com </P>
<P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">or to such other address, <FONT STYLE="white-space:nowrap">e-mail</FONT> address and/or facsimile number and/or to the attention of such other Person as the
recipient party has specified by written notice given to each other party five (5)&nbsp;days prior to the effectiveness of such change, provided that Kelley Drye&nbsp;&amp; Warren LLP shall only be provided copies of notices sent to the lead Buyer.
Written confirmation of receipt </P>
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(A)&nbsp;given by the recipient of such notice, consent, waiver or other communication, (B)&nbsp;mechanically or electronically generated by the sender&#146;s facsimile machine or <FONT
STYLE="white-space:nowrap">e-mail</FONT> containing the time, date, recipient facsimile number and, with respect to each facsimile transmission, an image of the first page of such transmission or (C)&nbsp;provided by an overnight courier service
shall be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii)&nbsp;above, respectively. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(g) <U>Successors and Assigns</U>. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns, including any purchasers of any of the Preferred Shares (but excluding any purchasers of Underlying Securities, unless pursuant to a written assignment by such Buyer). The Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Required Holders (as defined below), including, without limitation, by way of a Fundamental Transaction (as defined in the Certificate of Designations) (unless the Company is in
compliance with the applicable provisions governing Fundamental Transactions set forth in the Certificate of Designations). A Buyer may assign some or all of its rights hereunder in connection with any transfer of any of its Securities without the
consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(h)
<U>No Third Party Beneficiaries</U>. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other
Person, other than the Indemnitees referred to in Section&nbsp;9(k). </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) <U>Survival</U>. The representations, warranties, agreements and
covenants shall survive the Closing. Each Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder.<U> </U> </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(j) <U>Further Assurances</U>. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(k) <U>Indemnification</U>. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(i) In consideration of each Buyer&#146;s execution and delivery of the Transaction Documents and acquiring the Securities
thereunder and in addition to all of the Company&#146;s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless each Buyer and each holder of any Securities and all of their stockholders,
partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons&#146; agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated
by this Agreement) (collectively, the &#147;<B>Indemnitees</B>&#148;) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective
of whether any such Indemnitee is a party to the action for which indemnification hereunder is </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">41 </P>


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sought), and including reasonable attorneys&#146; fees and disbursements (the &#147;<B>Indemnified Liabilities</B>&#148;), incurred by any Indemnitee as a result of, or arising out of, or
relating to (i)&nbsp;any misrepresentation or breach of any representation or warranty made by the Company or any Subsidiary in any of the Transaction Documents, (ii)&nbsp;any breach of any covenant, agreement or obligation of the Company or any
Subsidiary contained in any of the Transaction Documents or (iii)&nbsp;any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the
Company or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from (A)&nbsp;the execution, delivery, performance or enforcement of any of the Transaction Documents, (B)&nbsp;any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (C)&nbsp;any disclosure properly made by such Buyer pursuant to Section&nbsp;4(l), or (D)&nbsp;the status of such Buyer or holder of the
Securities either as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action or proceeding
for injunctive or other equitable relief), in each case, other than as a result of any misrepresentation or breach of any representation or warranty made by such Buyer or holder of the Securities. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) Promptly after receipt by an Indemnitee under this Section&nbsp;9(k) of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof is to be made against the Company under this Section&nbsp;9(k), deliver to the Company a written
notice of the commencement thereof, and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and the Indemnitee;
provided, however, that an Indemnitee shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the Company if: (A)&nbsp;the Company has agreed in writing to pay such fees and expenses; (B)&nbsp;the
Company shall have failed promptly to assume the defense of such Indemnified Liability and to employ counsel reasonably satisfactory to such Indemnitee in any such Indemnified Liability; or (C)&nbsp;the named parties to any such Indemnified
Liability (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnitee and
the Company (in which case, if such Indemnitee notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, then the Company shall not have the right to assume the defense thereof and such counsel shall be
at the expense of the Company), provided further, that in the case of clause (C)&nbsp;above the Company shall not be responsible for the reasonable fees and expenses of more than one (1)&nbsp;separate legal counsel for the Indemnitees. The
Indemnitee shall reasonably cooperate with the Company in connection with any negotiation or defense of any such action or Indemnified Liability by the Company and shall furnish to the Company all information reasonably available to the Indemnitee
which relates to such action or Indemnified Liability. The Company shall keep the </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">42 </P>


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Indemnitee reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. The Company shall not be liable for any settlement of any action,
claim or proceeding effected without its prior written consent, provided, however, that the Company shall not unreasonably withhold, delay or condition its consent. The Company shall not, without the prior written consent of the Indemnitee, consent
to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability in respect to such
Indemnified Liability or litigation, and such settlement shall not include any admission as to fault on the part of the Indemnitee. Following indemnification as provided for hereunder, the Company shall be subrogated to all rights of the Indemnitee
with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not
relieve the Company of any liability to the Indemnitee under this Section&nbsp;9(k), except to the extent that the Company is materially and adversely prejudiced in its ability to defend such action. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) The indemnification required by this Section&nbsp;9(k) shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, within ten (10)&nbsp;days after bills are received or Indemnified Liabilities are incurred. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iv) The indemnity agreement contained herein shall be in addition to (A)&nbsp;any cause of action or similar right of the
Indemnitee against the Company or others, and (B)&nbsp;any liabilities the Company may be subject to pursuant to the law. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(l)
<U>Construction</U>. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. No specific representation or
warranty shall limit the generality or applicability of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock and any other numbers in this Agreement that relate to the Common Stock shall be
automatically adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions that occur with respect to the Common Stock after the date of this Agreement. Notwithstanding anything in this
Agreement to the contrary, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow, identification of the
availability of, and/or securing of, securities of the Company in order for such Buyer (or its broker or other financial representative) to effect short sales or similar transactions in the future. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(m) <U>Remedies</U>. Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities,
shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law.
Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to
exercise all other </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">43 </P>


<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">
rights granted by law. Furthermore, the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such Subsidiary&#146;s (as the
case may be) obligations under the Transaction Documents, any remedy at law would inadequate relief to the Buyers. The Company therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent
injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The remedies provided in this Agreement and the other
Transaction Documents shall be cumulative and in addition to all other remedies available under this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(n) <U>Withdrawal Right</U>. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Subsidiary does not timely perform its related obligations within the periods therein provided, then such
Buyer may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company or such Subsidiary (as the case may be), any relevant notice, demand or election in whole or in part without prejudice to its future actions
and rights. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(o) <U>Payment Set Aside; Currency</U>. To the extent that the Company makes a payment or payments to any Buyer hereunder or
pursuant to any of the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents are in United
States Dollars (&#147;<B>U.S. </B><B>Dollars</B>&#148;), and all amounts owing under this Agreement and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the
U.S.&nbsp;Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. &#147;<B>Exchange </B><B>Rate</B>&#148;<B> </B>means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this
Agreement, the U.S.&nbsp;Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(p) <U>Judgment
Currency</U>. If for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document in any court in any jurisdiction it becomes necessary to convert into any other currency
(such other currency being hereinafter in this Section&nbsp;9(p) referred to as the &#147;<B>Judgment Currency</B>&#148;) an amount due in U.S. Dollars under this Agreement, the conversion shall be made at the Exchange Rate prevailing on the
Business Day immediately preceding: </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">44 </P>


<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(1) the date actual payment of the amount due, in the case of any proceeding in
the courts of New York or in the courts of any other jurisdiction that will give effect to such conversion being made on such date: or </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:8%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(2) the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the
date as of which such conversion is made pursuant to this Section&nbsp;9(p)(2) being hereinafter referred to as the &#147;<B>Judgment Conversion Date</B>&#148;). </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(ii) If in the case of any proceeding in the court of any jurisdiction referred to in Section&nbsp;9(p)(1) above, there is a
change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of U.S. Dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the
Exchange Rate prevailing on the Judgment Conversion Date. </P> <P STYLE="margin-top:6pt; margin-bottom:0pt; margin-left:4%; text-indent:4%; font-size:10pt; font-family:Times New Roman">(iii) Any amount due from the Company under this provision shall
be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Agreement or any other Transaction Document. </P>
<P STYLE="margin-top:6pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman">(q) <U>Independent Nature of Buyers&#146; Obligations and Rights</U>. The obligations of each Buyer under the Transaction Documents are several
and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not so constitute, a partnership, an association, a joint venture or any other kind
of group or entity, or create a presumption that the Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by the
Transaction Documents or any matters, and the Company acknowledges that the Buyers are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by the
Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such
Buyer in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection with monitoring such Buyer&#146;s investment in the Securities or enforcing its rights under the
Transaction Documents. The Company and each Buyer confirms that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation of the transaction contemplated hereby with the advice of its own counsel and
advisors. Each Buyer shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other
Buyer to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of the Company, not the action or
</P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">45 </P>


<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">
decision of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested to do so by any Buyer. It is expressly understood
and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its Subsidiaries and the Buyers collectively and not between
and among the Buyers. </P> <P STYLE="margin-top:12pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">[<I>signature pages follow</I>] </P>
 <p STYLE="margin-top:0pt;margin-bottom:0pt ; font-size:8pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center">46 </P>


<p Style='page-break-before:always'>
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 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman"><B>IN WITNESS WHEREOF,</B> each Buyer and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above. </P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><DIV ALIGN="right">
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="40%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt">


<TR>
<TD WIDTH="6%"></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD WIDTH="92%"></TD></TR>


<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" COLSPAN="3"><B>COMPANY:</B></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16" COLSPAN="3"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" COLSPAN="3"><B>DELCATH SYSTEMS, INC.</B></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top">By:</TD>
<TD VALIGN="bottom" STYLE="BORDER-BOTTOM:1px solid #000000">&nbsp;</TD>
<TD VALIGN="top" STYLE="BORDER-BOTTOM:1px solid #000000">&nbsp;</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Name:</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Title:</TD></TR>
</TABLE></DIV>

<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman"><B>IN WITNESS WHEREOF,</B> each Buyer and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above. </P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><DIV ALIGN="right">
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="40%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt">


<TR>
<TD WIDTH="6%"></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD WIDTH="92%"></TD></TR>


<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" COLSPAN="3"><B>BUYER:</B></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16" COLSPAN="3"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" COLSPAN="3"><B>HUDSON BAY MASTER FUND LTD</B></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top">By:</TD>
<TD VALIGN="bottom" STYLE="BORDER-BOTTOM:1px solid #000000">&nbsp;</TD>
<TD VALIGN="top" STYLE="BORDER-BOTTOM:1px solid #000000">&nbsp;</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Name:</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Title:</TD></TR>
</TABLE></DIV>

<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; text-indent:4%; font-size:10pt; font-family:Times New Roman"><B>IN WITNESS WHEREOF,</B> each Buyer and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above. </P> <P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P><DIV ALIGN="right">
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="40%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt">


<TR>
<TD WIDTH="6%"></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD WIDTH="92%"></TD></TR>


<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" COLSPAN="3"><B>BUYER:</B></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16" COLSPAN="3"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top" COLSPAN="3"><B>ALTO OPPORTUNITY Master Fund, <FONT STYLE="white-space:nowrap">SPC-</FONT> Segregated Master Portfolio A</B></TD></TR>
<TR STYLE="font-size:1pt">
<TD HEIGHT="16"></TD>
<TD HEIGHT="16" COLSPAN="2"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top">By:</TD>
<TD VALIGN="bottom" STYLE="BORDER-BOTTOM:1px solid #000000">&nbsp;</TD>
<TD VALIGN="top" STYLE="BORDER-BOTTOM:1px solid #000000">&nbsp;</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Name:</TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="top">Title:</TD></TR>
</TABLE></DIV>

<p Style='page-break-before:always'>
<HR  SIZE="3" style="COLOR:#999999" WIDTH="100%" ALIGN="CENTER">

 <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman" ALIGN="center"><B>SCHEDULE OF BUYERS </B></P>
<P STYLE="font-size:12pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<TABLE CELLSPACING="0" CELLPADDING="0" WIDTH="100%" BORDER="0" STYLE="BORDER-COLLAPSE:COLLAPSE; font-family:Times New Roman; font-size:10pt" ALIGN="center">


<TR>
<TD WIDTH="19%"></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD WIDTH="30%"></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD></TD>
<TD></TD>
<TD></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD></TD>
<TD></TD>
<TD></TD>
<TD VALIGN="bottom" WIDTH="2%"></TD>
<TD WIDTH="33%"></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="bottom" ALIGN="center"><B>(1)</B></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" ALIGN="center"><B>(2)</B></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" COLSPAN="2" ALIGN="center"><B>(3)</B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" COLSPAN="2" ALIGN="center"><B>(4)</B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" ALIGN="center"><B>(9)</B></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:8pt">
<TD VALIGN="bottom" NOWRAP ALIGN="center" STYLE="border-bottom:1.00pt solid #000000"> <P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>Buyer</B></P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" ALIGN="center" STYLE="border-bottom:1.00pt solid #000000"> <P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>Address and Facsimile Number</B></P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" COLSPAN="2" ALIGN="center" STYLE="border-bottom:1.00pt solid #000000"><B>Aggregate<BR>Number&nbsp;of<BR>Preferred<BR>Shares</B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" COLSPAN="2" ALIGN="center" STYLE="border-bottom:1.00pt solid #000000"><B>Purchase<BR>Price</B></TD>
<TD VALIGN="bottom">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="bottom" ALIGN="center" STYLE="border-bottom:1.00pt solid #000000"> <P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:8pt; font-family:Times New Roman" ALIGN="center"><B>Legal Representative&#146;s<BR>Address and Facsimile
Number</B></P></TD></TR>


<TR BGCOLOR="#cceeff" STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman"><B>Hudson Bay Master Fund Ltd.</B></P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Please deliver any notices other than <FONT STYLE="white-space:nowrap">Pre-Notices</FONT> to:</P>
<P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">777 Third Avenue, 30th Floor<BR>New York, NY 10017<BR>Attention: Yoav Roth<BR>Facsimile:
(212) <FONT STYLE="white-space:nowrap">571-1279</FONT><BR><FONT STYLE="white-space:nowrap">E-mail:</FONT> investments@hudsonbaycapital.com<BR>Residence: Cayman Islands</P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Please deliver any <FONT STYLE="white-space:nowrap">Pre-Notice</FONT> to:</P> <P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">777 Third Ave., 30th Floor</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">New York, NY 10017</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Facsimile: (646) <FONT STYLE="white-space:nowrap">214-7946</FONT></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Attention: Scott Black</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">General Counsel and Chief Compliance
Officer</P> <P STYLE="font-size:6pt; margin-top:0pt; margin-bottom:1pt">&nbsp;</P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top">&nbsp;</TD>
<TD VALIGN="top" ALIGN="right">501.5</TD>
<TD NOWRAP VALIGN="top">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top">$</TD>
<TD VALIGN="top" ALIGN="right">425,000</TD>
<TD NOWRAP VALIGN="top">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Kelley Drye&nbsp;&amp; Warren LLP</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">101 Park Avenue</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">New York, NY 10178</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">Telephone: (212) <FONT STYLE="white-space:nowrap">808-7540</FONT></P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">Facsimile: (212) <FONT STYLE="white-space:nowrap">808-7897</FONT></P>
<P STYLE="margin-top:0pt; margin-bottom:1pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">Attention: Michael A. Adelstein, Esq.</P></TD></TR>
<TR STYLE="page-break-inside:avoid ; font-family:Times New Roman; font-size:10pt">
<TD VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman"><B>Alto Opportunity Master Fund, <FONT STYLE="white-space:nowrap">SPC-</FONT> Segregated Master
Portfolio A</B></P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"> <P STYLE="margin-top:0pt; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">Please deliver any notices to:</P>
<P STYLE="font-size:6pt;margin-top:0pt;margin-bottom:0pt">&nbsp;</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">1180 Avenue of the Americas, Suite 842</P>
<P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">New York, NY 10036</P> <P STYLE="margin-top:0pt; margin-bottom:0pt; font-size:10pt; font-family:Times New Roman">Facsimile: (646) <FONT
STYLE="white-space:nowrap">849-1267</FONT></P> <P STYLE="margin-top:0pt; margin-bottom:1pt; font-size:10pt; font-family:Times New Roman">Attn: Waqas Khatri</P></TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top">&nbsp;</TD>
<TD VALIGN="top" ALIGN="right">88.5</TD>
<TD NOWRAP VALIGN="top">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top">$</TD>
<TD VALIGN="top" ALIGN="right">75,000</TD>
<TD NOWRAP VALIGN="top">&nbsp;</TD>
<TD VALIGN="bottom">&nbsp;&nbsp;</TD>
<TD VALIGN="top"> <P STYLE=" margin-top:0pt ; margin-bottom:0pt; margin-left:1.00em; text-indent:-1.00em; font-size:10pt; font-family:Times New Roman">None.</P></TD></TR>
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