As discussed in Note 14, the Payout Notes were convertible into shares of ~~Business~~common stock and the Company agreed to register the shares underlying the Payout Notes within thirty (30) days of ~~Acquiror Parties. Until December 31,~~issuance with best efforts to cause the registration statement covering such shares to become effective within one-hundred twenty (120) days of issuance. On November 14, 2017, ~~(or,~~the Company filed a registration statement on Form S-3 (the “First Registration Statement”) to register all shares that may be issued upon conversion of the Payout Notes, which was subsequently amended to include the Payout Shares issued under the Stock Grant Agreement. In connection with the Stock Grant Agreement, the Company entered into a registration rights agreement (the “Payout Registration Rights Agreement”) with the Note Holders, pursuant to which the Company agreed to register the shares of common stock under the Additional Shares under the Securities Act. The Company agreed to file a registration statement covering the resale of the Additional Shares within 30 days of the Stock Grant Agreement and cause such registration statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than 120 days following the filing date if ~~all Closings~~such registration statement is filed on Form S-3 or 150 days if such registration statement is filed on Form S-1. If such registration statement is not filed or declared effective by the Securities and Exchange Commission on or prior to such dates, or if after such registration statement is declared effective, without regard for the reason thereunder or efforts therefor, such registration statement ceases for any reason to be effective for more than an aggregate of 30 trading days during any 12-month period, which need not be consecutive, then in addition to any other rights the Note Holders may have ~~occurred prior thereto,~~under the Payout Registration Rights Agreement or under applicable law, the Company shall pay to each Note Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the product obtained by multiplying (x) $1.00 by (y) the number of shares of Common Stock held by the Note Holder included in the registration statement (such product being the “Payout Investment Amount”); provided that, in no event will the Company be liable for liquidated damages in excess of 1% of the Payout Investment Amount in any single month and that the maximum aggregate liquidated damages payable to the Note Holders under the Payout Registration Rights Agreement shall be 10% of the Payout Investment Amount. The registration rights provision contained in the Payout Notes was incorporated by reference into the Payout Registration Rights Agreement, except that the Note Holders waived the breach by the Company for failure to timely file the First Registration Statement and agreed that they are not entitled to liquidated damages as a result of such failure. Under the Payout Registration Rights Agreement, the Note Holders are entitled to liquidated damages if the First Registration Statement is not declared effective within 120 days following the date of the ~~final Closing pursuant hereto),~~Payout Notes, but the ~~Acquiror Parties shall, and shall cause each other member of~~Note Holders subsequently agreed to waive their rights to such liquidated damages until April 20, 2018. On January 23, 2018, the Acquiror Group to, operate its business in the ordinary course, and, without limiting the generality of the foregoing and, except as otherwise expressly contemplated by this Agreement or except as otherwise consented to in writing by the Contributor Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Acquiror Parties shall, and shall cause each other member of the Acquiror Group to:

(a) not offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any securities or other Interests in any member of the Acquiror Group (including, without limitation, rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, subscription agreements, commitments or rights of any kind) or any securities or obligations convertible or exchangeable into or exercisable for, or giving any PersonCompany filed a ~~right to subscribe for or acquire, any Interests in any member of the Acquiror Group, other than (i) issuances of Acquiror Parent Shares pursuant to options or warrants outstanding~~registration statement on ~~the date hereof and disclosed onSchedule 5.12(c)~~ hereof in accordance with the terms thereof, and (ii) issuances of Interests by any wholly-owned Subsidiary of a member of the Acquiror Group to another wholly-owned Subsidiary of a member of the Acquiror Group;

(b) not make any investment in or acquire Interests or other securities of, or make any capital contribution to, any Person other than a wholly-owned Subsidiary of a member of the Acquiror Group;

~~(c) except as disclosed onSchedule 6.4(c), or as specifically contemplated hereby, not amend any of the Organizational Documents of any member of the Acquiror Group;~~

~~(d) not declare or pay any dividend or make any distribution to its security holders;~~

(e) not approve any expenditure that is outside of the ordinary course of business and that is anticipated to cost more than fifty thousand dollars ($50,000) per activity or series of related activities (excepting, in each case, emergency operations required under presently existing contractual obligations and operations necessary to avoid material monetary penalty or forfeiture or nonconsent penalty under any provision of any applicable Contract or order of any Governmental Authority, all of which will be deemed to be approved, provided Acquiror Parent promptly notifies Contributor Parent of any such emergency operation);

(f) not transfer, sell, hypothecate, encumber, or otherwise dispose of any of their assets, except for (i) sales and dispositions made in the ordinary course of business and (ii) other sales and dispositions of assets individually or in the aggregate not exceeding fifty thousand dollars ($50,000);

(g) not (i) take any action to terminate, materially amend, or extend any Material Contract or (ii) enter into any agreement that, if in existence at the Execution Date would be a Material Contract unless terminable without penalty on sixty (60) days or shorter notice;

(h) maintain insurance coverage on the Acquiror Group and their assets in the amounts and of the types presently in force and not make any election to be excluded from any such coverage;

~~(i) maintain in full force and effect all Contracts (except~~Form S-3 for the ~~termination of such Contract by its own terms);~~

~~(j) not incur any Indebtedness or take or fail~~Additional Shares. The Note Holders waived their rights to ~~take any action that would cause a lien or encumbrance to arise or exist on their material assets or otherwise allow a lien to attach to or encumber the Assets;~~

~~(k) maintain all material permits and approvals issued by Governmental Authorities affecting the Acquiror Group and its material assets;~~

(l) use commercially reasonable efforts to maintain and preserve intact the current organization, business and franchises of the Acquiror Group and to preserve the rights, franchises, goodwill and relationships with their service providers, customers, lenders, suppliers, regulators and others having business relationships with the Acquiror Group;

(m) not waive, release, assign, settle or compromise any claim, action or proceeding relating to a member of the Acquiror Group or any of their Assets except for claims involving a dollar amount of $50,000 or less and that do not impose any restrictions on the Company’s ability to engage in any line of business or would reasonably be expected to have an Acquiror Material Adverse Effect;

~~(n) except as specified onSchedule 6.4(n)~~, not file any amended Tax Return, revoke or change any Tax election, change a Tax accounting period, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment unless in connection with an ongoing audit, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, in each case that would be reasonably likely to have the effect of materially increasing the Tax liability of the Acquiror Group for any period after the Initial Closing Date;

~~(o) not, except as required by the terms of any Employee Benefit Plan of any member of the Acquiror Group as in effect on the date hereof or as described inSchedule 6.4(o)~~, (i) grant, increase or accelerate the vesting or payment of, or announce or promise to grant, increase or accelerate the vesting or payment of, any wages, salaries, bonuses, incentives, severance pay, other compensation, pension or other benefits payable or potentially available (including amounts payable to the Executives whether before or after the June 30, 2017 date referred to in~~Section 5.14(c)~~ ~~that are consistent withSection 5.14(c)~~ and existing employment agreements and other compensation arrangements) to any Employee of any member of the Acquiror Group; or (ii) establish, adopt or amend (or promise to take any such action(s)) any Employee Benefit Plan of any member of the Acquiror Group or any benefits potentially available thereunder applicable to any employee thereof;

(p) not take any action to delist the Acquiror Parent Shares from NASDAQ or the Tel Aviv Stock Exchange or to list the Acquiror Parent Shares on any other securities exchange or securities trading or quotation system;

(q) not adopt any plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization or otherwise effect any transaction whereby by any Person or group acquires more than a majority of the outstanding equity interests of any member of the Acquiror Group;

~~(r) not take any action that would or would reasonably be expected to prevent or materially delay any Closing or the consummation of the Transactions;~~

(s) not merge with or into or consolidate with any other entity, acquire or dispose of any material amount of assets outside of the ordinary course of business or engage in any other transaction outside the ordinary course of business;

(t) not take any action or fail to take any action that would reasonably be expected to cause Acquiror or any other member of the Acquiror Group that is not currently treated as a corporation for U.S. federal Income Tax purposes, to not be treated as a corporation;

(u) not repurchase or otherwise acquire any shares of its capital stock for less than fair market value (other than (i) the repurchase, redemption or other acquisition or retirement for value of any such capital stock held by any current or former director or employee of any member of the Acquiror Group pursuant to any director or employee equity subscription agreement or plan, stock option agreement or similar agreement or plan or (ii)liquidated damages in connection with the ~~exercise~~late filing of ~~stock options or stock appreciation rights by way of cashless exercise); or declare, set aside or pay any dividend or other distribution payable~~such registration statement and in ~~cash, shares of its capital stock, property, rights or otherwise~~connection with ~~respect to any shares of its capital stock;~~

~~(v) not take (or omit to take) any action that would cause~~ the ~~Acquiror to become a Shell Company (as defined in Section 405 of the Securities Act); and~~

~~(w) not agree or commit to do any of the foregoing.~~effectiveness deadline for such registration statement until April 20, 2018.

~~6.5~~ ~~Operation of Business of Contributor Parties~~. Until December 31, 2017 (or, if all Closings have occurred prior thereto, the date of the final Closing pursuant hereto), the Contributor Parties shall, and shall cause each other member of the Contributor Group to, operate the Contributed Entities, the Additional Contributed Entities and the Contributed Properties, prior to their transfer to the Acquiror, in the ordinary course, and, without limiting the generality of the foregoing and, except as otherwise expressly contemplated by this Agreement or except as otherwise consented to in writing by the Acquiror Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Contributor Parties shall, and shall cause each other member of the Contributor Group to:Note 14

(a) not offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any Contributed Interests or Additional Contributed Interest (including, without limitation, rights, options, warrants, conversion rights,Common Stock

The Company’s common stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, subscription agreements, commitments or rights of any kind) or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any Contributed Interests or Additional Contributed Interests;confer upon their holders the following rights:

The terms of the ~~Organizational Documents~~Convertible Series A Preferred Stock are governed by a certificate of ~~any Contributed Entity~~designation, or ~~Additional Contributed Entity;~~the Series A Certificate of Designation, filed by the Company with the Nevada Secretary of State on May 15, 2017. Pursuant to the Series A Certificate of Designation, the Company designated 3,000,000 shares of the Company’s preferred stock as Series A Convertible Preferred Stock. As more fully described in Note 5, the Company issued 123,668 shares of Convertible Series A Preferred Stock in connection with the Contribution Agreement. Following is a summary of the material terms of the Series A Convertible Preferred Stock:

~~(c) not permit any Contributed Entity or Additional Contributed Entity to declare or pay any dividend or make any distribution to its security holders;~~

(d) not approve any expenditure by a Contributed Entity or Additional Contributed Entity that is outside of the ordinary course of the business of the Contributed Entity or Additional Contributed Entity;

~~(e) not transfer, sell, hypothecate, encumber, or otherwise dispose of any Contributed Properties or Additional Contributed Properties;~~

(g) maintain insurance coverage on the Contributed Properties and the Additional Contributed Properties in the amounts and of the types presently in force and not make any election to be excluded from any such coverage;

(h) maintain in full force and effect all Contracts (except for the termination of such Contract by its own terms) of the Contributed Entities and the Additional Contributed Entities;

(i) not incur any Indebtedness or take or fail to take any action that would cause a lien or Encumbrance to arise or exist on the Contributed Properties or Additional Contributed Properties or otherwise allow an Encumbrance to attach to or encumber the Contributed Properties or Additional Contributed Properties;

(j) maintain all material governmental permits and approvals affecting the Contributed Entities, the Additional Contributed Entities, the Contributed Properties and the Additional Contributed Properties;

(k) use commercially reasonable efforts to maintain and preserve intact the current organization, business and franchises of the Contributed Entities and the Additional Contributed Entities and to preserve

●

Dividends - Except for stock dividends or distributions for which adjustments are to be made, holders shall be entitled to receive, and the Company shall pay, dividends on shares of Convertible Series A Preferred Stock equal (on an as-if-converted-to-Common-Stock basis) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends shall be paid on shares of Convertible Series A Preferred Stock.

A-62

Redeemable Convertible Series B Preferred Stock

Convertible Series B preferred stock confer upon their holders all the rights ~~franchises, goodwill and relationships with their service providers, customers, lenders, suppliers, regulators and others having business relationships~~of Common Stock. As more fully described below, the Company issued 1,500,000 shares of Redeemable Convertible series B Preferred Stock in connection with the ~~Contributed Entities~~Securities Purchase Agreement. In addition, based on the Company’s Certificate of Designation, the Series B Shares bear the following rights and privileges:

●

Liquidation Preference - Holders of the Series B Shares shall receive cumulative dividends, pro rata among such holders, prior to and in preference to any dividend on the Company’s outstanding Common Stock and Series A Convertible Preferred Stock, at the per annum rate of 8% of the Series B Original Issue Price ($1.00). Dividends on each Series B Share will accrue daily and be cumulative from the original issued date of December 22, 2017 and shall be payable upon the occurrence of any voluntary or involuntary liquidation, dissolution or winding up of the, a conversion or a redemption. The redemption price shall be $1.00 per share, subject to appropriate adjustment. Holders shall also be entitled to receive dividends on the Series B Shares (on an as-if-converted-to-Common-Stock basis) as dividends actually paid on shares of the Company’s Common Stock when, as and if such dividends are paid on shares of the Common Stock. As of December 31, 2017, the aggregate liquidation preference amounted to $1,503. The foregoing dollar amount does not include dividends, as the Company’s Board of Directors has not declared any dividends since inception.

●

Voting - Each holder of the Series B Shares shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series B Shares held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter subject to certain conversion limitations.

●

Conversion - Each Series B Share shall be convertible at the option of the holder thereof, at any time after the date of issuance of such share, into such number of fully paid and non-assessable Common Stock as is determined by dividing the original issue price plus accrued, but unpaid, dividends by the applicable conversion price at that time in effect for such Series B Share. The Series B Shares are automatically converted to Common Stock on May 31, 2018 should voluntary conversion or redemption not occur prior to that time.

●

Redemption – Under certain conditions beyond the Company’s control, the Series B shareholders may require redemption of the Series B Shares at a price per share equal to $1.33, plus accrued, but unpaid, dividends through and including the date of such redemption.

Reverse Split and Retroactive Adjustment of Shares and Per Share Information

On September 7, 2016, the ~~Additional Contributed Entities;~~Company’s Board of Directors approved a reverse stock split in a ratio of 1-for-5 (the “2016 Reverse Split”). The amount of authorized Common Stock as well as the par value for the Common Stock were not effected. Any fractional shares resulting from the 2016 Reverse Split were rounded up to the nearest whole share.

(l) not waive, release, assign, settle or compromise any claim, action or proceeding relating to any Contributed Entity, Additional Contributed Entity, Contributed Property or Additional Contributed Property, other than asAll common stock, stock warrants, stock options and per share amounts set forth inherein are presented to give retroactive effect to the ~~schedules provided pursuant toSection 4.12~~;2016 Reverse Split for all periods presented.

~~(m) not file any amended Tax Return, revoke or change any Tax election, change a Tax accounting period, enter into any closing agreement with respect~~Change of Authorized Shares

On October 19, 2017, the Company filed Amended and Restated Articles of Incorporation to ~~Taxes, settle any Tax claim or assessment unless in connection with an ongoing audit, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of~~among the limitation period applicable to any Tax claim or assessment, in each case that would be reasonably likely to have the effect of materially increasing the Tax liability of any Contributed Entity or Additional Contributed Entity for any period after the Closing Date;

~~(n) not adopt any plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or~~ other reorganization or otherwise effect any transaction whereby by any Person or group acquires more than a majority of the outstanding equity interests of any Contributed Entity or Additional Contributed Entity;

~~(o) not take any action that would or would reasonably be expected to prevent or materially delay the Closing and the consummation of the Transactions; and~~

~~(p) not agree or commit to do any of the foregoing.~~

Notwithstanding anything to the contrary above, the Contributor Parties shall have no obligations with respect to the Contributed Properties or Contributed Interests pursuant to the above provisions (except as specifically contemplated hereby) following their contribution to the Acquiror hereunder, or with respect to any matters that would not reasonably affect the consummation of the Transactions contemplated hereby.

~~6.6~~ ~~Stockholder Approval~~~~. The conversion of the Acquiror Parent Preferred Stock and the exercise of the Warrant (as defined inSection 9.1(b)(ii)~~ below) require the vote of the stockholders of Acquiror Parent under applicable Law, the rules and regulations of NASDAQ, and/or the Organizational Documents of Acquiror Parent. As promptly as possible following the Execution Date, the Acquiror Parent shall prepare and as promptly as possible following the Initial Closing, file with the Commission a proxy statement (the “~~Proxy Statement”) and take all actions necessary under the Nevada Statute and the listing rules of NASDAQ to hold a special meeting of its stockholders (the “Special Meeting”) to authorize and approve the following matters:~~

~~(a) an~~things, increase in the number of authorized shares of common stock, $.01 par value per share, of ~~Acquiror Parent~~the Company from ~~fifty million (50,000,00)~~50,000,000 shares to ~~five hundred~~500,000,000 million ~~(500,000,000)~~ shares and to increase the number of authorized shares of preferred stock, $.01 par value per share, of ~~Acquiror Parent~~the Company from ~~five million (5,000,000)~~5,000,000 shares to ~~fifty million (50,000,000) shares;~~

(b) the issuance to the Contributor or its designee or designees of the Transaction Shares in exchange for the Contributed Entity Interests and the Additional Contributed Entity Interests, as provided herein, and the issuance of the Warrant and, upon exercise of the Warrant, the issuance of the underlying shares of Acquiror Parent Common Stock, in exchange for the Optional Entity Interests;

~~(c) the amendment and restatement of the Articles of Incorporation of the Acquiror Parent to provide as set forth inExhibit E~~ ~~hereof;~~50,000,000 shares.

~~(d)~~Contribution Agreement

As discussed in Note 5, upon the ~~amendment and restatement~~Initial Closing of the ~~Bylaws of~~First Contribution, the ~~Acquiror Parent to provide as set forth inExhibit F~~ ~~hereof;~~

(e) the election of a new Board of Directors to consist of seven (7) persons to serve until the next annual meeting of the Acquiror Parent’s stockholders or until their successors are elected and qualify, subject to their prior death, resignation or removal, of whom (i) three (3) shall be designated by the Acquiror Parent, (ii) three (3) shall be designated by Contributor Parent; and (iii) one (1) (the “~~Nonaffiliated Director”) shall be selected by the other six (6) directors;provided, however,that at least four (4) of the members of the Board of Directors as so designated shall be independent directors as provided by the rules of NASDAQ (each an “Independent Director” and, collectively, the “Independent Directors~~��). Of the board designees of the parties, one (1) of the Acquiror Parent’s designees shall be an Independent Director, two (2) of the Contributor Parent’s designees shall be Independent Directors and the Nonaffiliated Director shall be an Independent Director. The compensation committee, nominations and corporate governance committee and audit committee of the Acquiror Parent shall each consist of the Acquiror Parent’s designee who is an Independent Director, one of the Contributor Parent’s designees who is an Independent Director and the Nonaffiliated Director; and

~~(f) the approval of the Payout Notes (as defined inSection 6.17) and the issuance of the Acquiror Parent Common Stock upon conversion of the Payout Notes.~~

~~6.7~~ ~~Registration Statements; Information in Proxy Statement and Registration Statement~~.

(a) Promptly following the Execution Date, the Acquiror Parent shall prepare and file with the Commission two registration statements on Form S-3 (or such other form available for this purpose) (the “~~Registration Statements”) to register (a) the primary offering by the~~ Company (i) to the Executives of the Acquiror Parent Common Stock underlying the Payout Notes, and (ii) to the unaffiliated shareholders of Contributor Parent of the Acquiror Parent Common Stock distributed to such unaffiliated shareholders as a dividend by Contributor Parent and (b) the secondary offering (i) by the Contributor Parties of all the Transaction Shares (including, without limitation, the shares of Acquiror Parent Common Stock underlying the Warrant) retained by the Contributor Parties, (ii) by Maxim Group LLC of the Transaction Shares received by it as compensation for services rendered to Contributor Parent, and (ii) by certain affiliates of the Contributor Parent who receive Transaction Shares from Contributor Parent. The Registration Statement will be prepared and filed in accordance with the Registration Rights Agreement.

(b) Each of the Parties shall use its commercially reasonable efforts to provide promptly such information and financial statements and other documents as may reasonably be required for inclusion in the Proxy Statement and the Registration Statements, shall direct that its counsel cooperate with counsel to the other Parties in the preparation of the Proxy Statement and the Registration Statements and shall request the cooperation of their respective auditors in the preparation of the Proxy Statement and the Registration Statements. None of the information supplied or to be supplied by or on behalf of the any of the Parties for inclusion or incorporated by reference in the Proxy Statement and the Registration Statements will, at the time the Proxy Statement or the Registration Statements is filed with the Commission or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any 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. If any information provided any Party is discovered or any event occurs with respect to any of the Parties, or any change occurs with respect to the other information provided by the Parties included in the Proxy Statement or the Registration Statements which is required to be described in an amendment of, or a supplement to, the Proxy Statement or Registration Statements so that such document does not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall notify the other Parties promptly of such event. No Party shall be required to file with the Commission or to distribute any Proxy Statement or the Registration Statements that it reasonably believes contains any untrue statement of a material fact or omits to state any 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.

~~6.8~~ ~~Voting Agreement~~~~. The Persons identified onSchedule 6.8~~ ~~shall, on or prior to the Execution Date, have entered into a voting agreement in the form ofExhibit G, pursuant to which such Persons shall have agreed to vote all the shares of Acquiror Parent they beneficially own or own of record in favor of the matters set forth inSection 6.6~~ ~~at the Special Meeting or any adjournment or postponement thereof and for the election of directors as described inSection 6.6(a)(v)~~ ~~and the provisions of the voting agreement relating to the election of directors shall remain effective until the number of Transaction Shares~~ issued to the Contributor ~~exceeds 50%~~879,234 duly authorized, fully paid and non-assessable shares of the ~~issued~~Company’s common stock, par value $0.01 per share and ~~outstanding Parent Common~~123,668 shares of the Company’s newly designated non-voting Series A Convertible Preferred Stock, ~~on a post-issuance and fully-diluted basis.~~par value $0.01 per share for certain Contributed Properties.

Payout Notes

~~6.9~~ ~~Election of Directors; Schedule 14f-1~~.

~~(a) Prior to~~Following the Initial Closing ~~Date (i) the Board of Directors~~ of the ~~Acquiror Parent shall fix~~First Contribution under the ~~number of directors constituting~~Contribution Agreement (see also Note 5), amounts due to Dr. Dolev Rafaeli, the ~~entire Board of Directors at seven (7)~~Company’s former Chief Executive Officer and ~~(ii) each~~Dennis McGrath, the Company’s former Chief Financial Officer under their employment agreements, as well as amounts due to Dr. Yoav Ben-Dror for his services as a board member of the ~~Board of Directors of Acquiror Parent shall tender his or her resignation as~~Company’s foreign subsidiaries, were to be converted to convertible secured notes (the “Payout Notes”) after approval from the Company’s stockholders. The Payout Notes would be due one year after the stockholder approval and carry a Director, and the Board of Directors shall accept such resignations in seriatim or other appropriate manner such that the Board of Directors, on the Initial Closing Date shall consist of seven (7) persons10% interest rate. The principal would convert to ~~serve until the next annual meeting~~shares of the Acquiror Parent’s stockholders or until their successors are elected and qualify, subject to their prior death, resignation or removal, of whom (i) three (3) shall be designated by the Acquiror Parent (at least one of whom shall be an Independent Director), (ii) three (3) shall be designated by Contributor Parent (at least two of whom shall be Independent Directors), and (iii) one (1) shall be the Nonaffiliated Director;~~provided, however,~~ that at least four (4) of the members of the Board of Directors as so designated shall be Independent Directors. As required by the rules of NASDAQ, the compensation committee, nominations and corporate governance committee and audit committee of the Acquiror Parent shall each consist of the Acquiror Parent’s designee who is an Independent Director, one of the Contributor Parent’s designees who is an Independent Director and the Nonaffiliated Director. The names of the nominees, and all other information relevant to the Schedule 14f-1 referred to below, shall be furnished to the Acquiror Parent not less than fifteen (15) days prior to the Initial Closing Date.

(b) Not later than ten (10) days prior to the Initial Closing Date, the Acquiror Parent shall prepare and file with the Commission an information statement on Schedule 14f-1 pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. The Acquiror Parent shall provide the Contributor Parent with a draft thereof for approval not less than three (3) Business Days prior to the filing thereof.

~~6.10~~ ~~Governmental Reviews~~.

(a) The Contributor Parties and the Acquiror Parties shall each in a timely manner (i) make (or cause their applicable Affiliates to make) all required filings, and prepare applications to, and conduct negotiations with, obtain consents, approvals or actions of, and give all notices to each Governmental Authority or any other Person as to which such filings, applications, negotiations, consents, approvals, actions or notices are necessary or appropriate in the consummation of the transactions contemplated hereby, and (ii) provide such information as the other may reasonably request in order to make such filings, prepare such applications, conduct such negotiations, obtain such consents approvals or actions, and give such notices. Each Party shall cooperate with and use all reasonable efforts to assist the other with respect to such filings, applications and negotiations. If a Party or any of its Affiliates intends to participate in any meeting or discussion with any Governmental Authority with respect to such filings, applications, or negotiations, or the transactions contemplated by this Agreement, it shall give the other Party reasonable prior notice of, and an opportunity to participate in, such meeting or discussion. Acquiror shall bear one-half and Contributor shall bear one-half of the cost of all filing or application fees payable to any Governmental Authority with respect to the transactions contemplated by this Agreement, regardless of whether Acquiror, Contributor, or any Affiliate of any of them is required to make the payment. Each Party shall provide prompt notice to the other Party when any such filings, application, negotiation, consent, approval, action or notice referred to above in this~~Section 6.10(a)~~ is obtained, taken, made or given, as applicable, and will advise such other Party of any communications (and, unless precluded by Law, provide copies of any such written communications) with any Governmental Authority or other Person relating therewith.

~~(b) Without limiting the generality ofSection 6.10(a)~~, as soon as practicable following the date of this Agreement and in any event within fifteen (15) Business Days after the date hereof, the Parties shall make such filings as may be required by the HSR Act with respect to the transactions contemplated by this Agreement, which filings shall include a request for early termination of any applicable waiting period. Thereafter, the Parties shall file as promptly as practicable all reports or other documents required or requested by the U.S. Federal Trade Commission or the U.S. Department of Justice pursuant to the HSR Act or otherwise, including requests for additional information concerning such transactions, so that the waiting period specified in the HSR Act will expire or be terminated as soon as reasonably possible after the date of this Agreement. Each Party shall cause its counsel to furnish each of the other Parties such necessary information and reasonable assistance as such other Parties may reasonably request in connection with the Parties’ preparation of necessary filings or submissions under the provisions of the HSR Act.

~~6.11~~ ~~Audits and Filings~~.

(a) From and after the date of this Agreement, the Acquiror Parties shall, and shall use their reasonable efforts to cause their Affiliates and their and their Affiliates’ respective officers, directors, managers, employees, agents and representatives to, cooperate with the Contributor Parties, their Affiliates and their respective agents and representatives and make available to the Contributor Parties, their Affiliates and their respective agents and representatives any and all books, records, information and documents that are attributable to the Acquiror Parties’ and their Affiliates’ business, Tax, financial, or other reporting requirements and audits, including (i) any filings with any Governmental Authority and (ii) any filings that may be required by the Commission under securities Laws applicable to the Acquiror Parties and their Affiliates, including the filing by the Acquiror Parties with the Commission of one or more registration statements to register the Acquiror Parent Securities under the Securities Act or of any report required to be filed by the Acquiror Parties under the Exchange Act with respect to the Transactions (together with the Securities Act and the rules and regulations promulgated under such acts, the “~~Securities Laws”) (any such filings described inclause (ii), the “Filings”).~~

(b) From and after the date of this Agreement, the Contributor Parties shall, and shall use their reasonable efforts to cause their Affiliates and their and their Affiliates’ respective officers, directors, managers, employees, agents and representatives to, cooperate with the Acquiror Parties, their Affiliates and their respective agents and representatives and make available to the Acquiror Parties, their Affiliates and their respective agents and representatives any and all books, records, information and documents that are attributable to the Contributor Parties’ and their Affiliates’ business, Tax, financial, or other reporting requirements and audits, including any Filings.

(c) From and after the date of this Agreement, each Party shall, and shall use its reasonable efforts to cause their Affiliates to, cooperate with the independent auditors chosen by the other Party in connection with any audit by the other Party of any financial statements of such Party that the other Party or any of their Affiliates require to comply with the requirements of the Securities Laws. Such cooperation will include (i) reasonable access to the other Party’s officers, managers, employees, agents and representatives who were responsible for preparing or maintaining the financial records and work papers and other supporting documents used in the preparation of such financial statements as may be required by such Party to perform an audit or conduct a review in accordance with generally accepted auditing standards or to otherwise verify such financial statements, (ii) delivery of one or more customary representation letters from a Party to the other Party’s auditor that are reasonably requested by the such Party to allow such auditors to complete an audit (or review of any financial statements) and to issue an opinion with respect to an audit of those financial statements required pursuant to this~~Section 6.11(c),~~ (iii) using reasonable efforts to obtain the consent of the independent auditor(s) of other Party that conducted any audit of such financial statements to be named as an expert in any Filing or offering memorandum for any equity or debt financing of the such Party, and (iv) using reasonable efforts to cause the independent auditor(s) of the other Party that conducted any audit of such financial statements to provide customary “comfort letters” to any underwriter or purchaser in connection with any equity or debt financing of the other Party. Notwithstanding the foregoing, nothing herein shall expand a Party’s representations, warranties, covenants, or agreements set forth in this Agreement or give a Party, their Affiliates, or any third Person any rights to which it is not entitled hereunder.

~~6.12~~ ~~Listing of Acquiror Parent Shares~~. At each Closing, Acquiror and Acquiror Parent shall issue the Acquiror Parent Securities issuable at such Closing pursuant to this Agreement in accordance with this Agreement and all applicable Securities Laws and the rules and policies of NASDAQ and each other securities exchange on which the Acquiror Parent Shares are listed or trading. Without limiting the generality of the foregoing, Acquiror Parent shall complete all such filings with NASDAQ and such other exchange and otherwise take all such actions as may be reasonably necessary for the Acquiror ParentCompany’s Common Stock to be issued pursuant hereto (and underlying the Warrant) to be accepted by NASDAQ and such other exchange for issuance and approved for listing thereon from and after the time of Closing (or, with respect to Transaction Shares that are issued following the Closing, from and after the date of the issuance of such Transaction Shares), subject to official notice of issuance.

~~6.13~~ ~~Further Assurances~~. After each Closing, the Contributor Parties and the Acquiror Parties each agree to take such further actions and to execute, acknowledge, and deliver all such further documents as are reasonably requested by the other for carrying out the purposes of this Agreement or of any document delivered pursuant to this Agreement or the other Transaction Agreements.

~~6.14~~ ~~Required Consents~~. Each Party shall obtain all Required Consents necessary or, in the reasonable judgment of the other Party, desirable, to permit (a) the acquisition by Acquiror of the Contributed Entity Interests and the entry into the Assignment and Assumption Agreement and the performance of the obligations of the Acquiror Parties thereunder and (b) any other action required to consummate the transactions contemplated by this Agreement and the other Transaction Agreements. The Parties acknowledge that a breach or failure to perform the covenants set forth in this section shall, for the avoidance of doubt, be a material breach resulting in a failure of the conditions to Closing of the other Party, and the other Party shall be entitled to exercise their remedies set forth in~~Section 10.3~~ ~~with respect thereto.~~

~~6.15~~ ~~Amendment of Acquiror Parent Articles of Incorporation and Bylaws~~~~. Prior to the Initial Closing, Acquiror Parent shall amend and restate Bylaws in the form set forth onExhibit Fhereto and upon obtaining Shareholder Approval, the Acquiror Parent shall amend and restate the Articles of Incorporation as set forth onExhibit E~~ ~~hereto. Subject to the foregoing, Acquiror Parent shall not amend or otherwise modify its Organization Documents without the consent of Contributor Parent.~~

~~6.16~~ ~~Change of Trading Symbol~~. Acquiror Parent shall use commercially reasonable efforts to cause the trading symbol for Acquiror Parent on NASDAQ and each other securities exchange on which Acquiror Parent Shares are traded or authorized for trading to be changed to a symbol designated by Contributor Parent and which is available as a trading symbol on such exchange or exchanges.

~~6.17~~ ~~Arrangements with Acquiror Parent Executives~~~~. On the Approval Date, all outstanding compensation liabilities owed to the Executives as of such Approval Date will be converted into secured convertible promissory notes (the “Payout Notes”) in the form ofExhibit H~~ ~~hereto, with the following principal terms:~~

~~(a) Maturity one year following the Approval Date (the “Maturity Date”);~~

~~(b) Principal mandatorily convertible on the Maturity Date into unregistered Acquiror Parent Shares, with the value of the Acquiror Parent Shares to be determined on the basis of~~at the lower of (i) the Per Share Value or (ii) the VWAP with respect to on-exchange transactions in ~~Acquiror Parent Shares~~the Company’s Common Stock executed on the NASDAQ during the ~~thirty (30) Trading Days~~30 trading days prior to the ~~Maturity Date~~maturity date as reported by Bloomberg L.P. ~~(the “Note Conversion Price”), with such Acquiror Parent Shares to be issued within 10 Business Days thereafter;~~; provided, however,, that the value of the ~~Acquiror Parent Shares shall~~Company’s Common Stock should in no event be less than $1.75 per ~~share (the “Floor Price~~”). In the event that the Note Conversion Price on the Maturity Date is lower than the Floor Price, then the Acquiror Parent may, in its discretion, elect to either: (i) pay the principal amount of theshare. The Payout Notes in cash to the Executives or (ii) extend the Maturity Date for a period of sixty (60) days, at the conclusion of which the foregoing mechanism for determining the Note Conversion Price and repayment of the Payout Notes shallwould be ~~determined with finality;provided, however, that at the conclusion of such sixty (60) day period, no Floor Price shall apply in the determining the Note Conversion Price.~~

(c) 10% interest payable monthly in arrears in cash or unregistered Acquiror Parent Shares, determined at the election of each of the Executives by notice delivered not less than three (3) NASDAQ Trading Days prior to the relevant interest payment date, with the value of the Acquiror Parent Shares to be determined on the basis of the VWAP with respect to on-exchange transactions in Acquiror Parent Shares executed on the NASDAQ during the thirty (30) NASDAQ Trading Days ending five (5) NASDAQ Trading Days prior to the relevant interest payment date.

~~(d) Secured~~secured by a security interest in all assets of the ~~Acquiror Parent in the form of the Payout Notes Security Agreement set forth asExhibit I~~ ~~hereto;~~Company; provided, however,, that such security interest ~~will~~would be subordinated to any (i) claims or liens to the holders of any debt (including mortgage debt) being assumed by the ~~Acquiror Parent~~Company as a result of the ~~Transactions,~~transaction contemplated by the Agreement, and (ii) all ~~post-Closing Indebtedness~~post-closing indebtedness incurred by the ~~Acquiror Parent~~Company or its ~~Subsidiaries.~~

~~(e) Not guaranteed as to payment by any third party.~~

~~(f) Demand~~subsidiaries. The holders of the Payout Notes would have registration rights ~~requiring~~which would require the filing of a re-sale registration statement on appropriate form that registers for re-sale the shares of Common Stock underlying the Payout Notes within thirty (30) days of ~~the Approval Date~~issuance with best efforts to cause the same to become effective within ~~one-hundred twenty (120)~~120 days ~~following~~of issuance. The form of those Payout Notes was agreed to at the ~~Approval Date~~time of signing of the Contribution Agreement and ~~containing other customary provisions.~~

(g) A covenant that provides, among other things, that, if permitted to do so by Law, the Acquiror Parent shall (at its expense) will facilitate public sales of any Acquiror Parent Shares received by the Executives inwas attached as an exhibit thereto. In connection with the Payout Notes, ~~under Rule 144 promulgated under~~ the ~~Securities Act~~parties also agreed to a form of security agreement (the “Security Agreement”), which was also attached as an exhibit to the Contribution Agreement.

On October 12, 2017, following approval by the ~~first anniversary~~Company’s stockholders, the Company issued a secured convertible promissory notes (the “Payout Notes”) to Dr. Dolev Rafaeli, the Company’s former Chief Executive Officer, Dennis M. McGrath, the Company’s former President and Chief Financial Officer, and Dr. Yoav Ben-Dror, the former director of the ~~Approval Date.~~

~~6.18~~ ~~Continuing D&O Insurance~~~~. Acquiror Parent shall provide for continuing director~~Company’s foreign subsidiaries (collectively, the “Note Holders”) in the principal amounts of $3,134, $978 and ~~officer insurance coverage for the directors~~$1,515, respectively. The Payout Notes were due on October 12, 2018, carried a 10% interest rate, payable monthly in arrears commencing on December 1, 2017 (each such payment, a “Monthly Interest Payment” and ~~officers~~each date of ~~Acquiror Parent for a period of six years following the Initial Closing Date, on terms of coverage consistent in all material respects with the coverage provided on the Execution Date.~~

~~6.19~~ ~~Execution of Closing Deliverables~~~~. At each Closing the Contributor Parent shall cause the Contributor, to execute~~such payment, an “Interest Payment Date”), and ~~deliver all items called for to be executed and delivered by such Persons pursuant to, and in accordance with,Section 8.2~~ ~~of this Agreement.~~

~~6.20~~ ~~Executive Releases~~. On the Approval Date the Executives shall deliver (i) an agreement (in form and substance reasonably acceptable to the Contributor Parent) that terminates, effective on the Approval Date, any and all employment or similar agreements between the Executives and any memberswere convertible into shares of the Acquiror Group and any and all rights of the Executives under Employee Benefit Plans (including, without limitation, stock option, restricted stock and other plans) providing for any form of compensation, consideration, reimbursement or benefits to the Executives except for benefits available under COBRA for a period of 18 months following the Approval Date, and (ii) a general release in the form attached to the existing employment agreements between the Executives and the Acquiror Parent, a copy of which has been made available to the Contributor Parties.

~~6.21~~ ~~Distribution of Transaction Shares~~~~. Promptly following the date that a Registration Statement covering the resale of any Transaction Shares (or shares of Acquiror Parent~~Company’s Common Stock issued to Contributor upon the exercise of the Warrant) has been declared effective by the Commission, the Contributor Parties shall cause the distribution of the Transaction Shares (or shares of Acquiror Parent Common Stock issued to Contributor upon the exercise of the Warrant) to the partners of the Contributor and the shareholders of Contributor Parent such that no more than 50% of the Transaction Shares (and shares of Acquiror Parent Common Stock issued to Contributor upon the exercise of the Warrant) shall thereafter be held by Affiliates of the Contributor Parent and the remaining Transaction Shares (or shares of Acquiror Parent Common Stock issued to Contributor upon the exercise of the Warrant) shall be held by at least 1,000 shareholders of the Contributor Parent who are not Affiliates of the Contributor Parent. Prior to such distribution, Acquiror Parent shall hold such Transaction Shares (and shares of Acquiror Parent Common Stock issued to Contributor upon the exercise of the Warrant) and shall not transfer or otherwise dispose of such Transaction Shares (and shares of Acquiror Parent Common Stock issued to Contributor upon the exercise of the Warrant) without the unanimous consent of the board of directors of Acquiror Parent.

~~ARTICLE 7~~

~~CONDITIONS TO CLOSING~~

~~7.1~~ ~~Conditions of Contributor Parties to the Closings~~.maturity. The obligations of the Contributor Parties to consummate the transactions contemplated by this Agreement are subject, at the option of the Contributor Parties, to the satisfaction on or prior to each Closing of each of the following conditions (in each case, with respect to the assets or entities being contributed at such Closing, and the payment of the consideration therefor):

(a) The Acquiror Parties’ representations and warranties shall be true and correct in all respects as of the date of this Agreement and as of such Closing Date as though made on and as of the Closing Date, except for inaccuracies which would not, individually or in the aggregate, cause or reasonably be expected to cause an Acquiror Material Adverse Effect;

(b) The Acquiror Parties shall have performed and observed, in all material respects (and in all respects in the case of any covenants and agreements qualified by materiality or Acquiror Material Adverse Effect), all covenants and agreements to be performed or observed by Acquiror Parties under this Agreement and the other Transaction Agreements prior to or on such Closing Date;

(c) On such Closing Date, no (i) injunction, order or award restraining, enjoining or otherwise prohibiting the consummation of the Transactions shall have been issued and remain in force, (ii) suit, action, or other proceeding (excluding any such matter initiatedPayout Notes were secured by a Contributor Party or any of its Affiliates) shall be pending before any Governmental Authority or body of competent jurisdiction (or threatened) seeking to enjoin or restrain or otherwise prohibit the consummation of the Transactions; and (iii) suit, action, or other proceeding (including arbitral proceedings) shall be pending or threatened against any member of the Acquiror Group which, if determined wholly adversely to such member, would or could have an Acquiror Material Adverse Effect;

(d) The Contributor Parties shall have received all Contributor Required Consents, and the Acquiror Parties shall have received all Acquiror Required Consents, which the Contributor Parties deem necessary or desirable;

(e) All material consents and approvals of any Governmental Authority (including any under the HSR Act) required for the transfer of the Contributed Entity Interests from Contributor to Acquiror as contemplated by this Agreement, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after closing, shall have been granted, or the necessary waiting period (including any under the HSR Act) shall have expired, or early termination of the waiting period shall have been granted;

~~(f) The Acquiror Parties shall have delivered~~security interest in all of the ~~deliverables~~properties, assets and personal property of the ~~Acquiror Parties are~~Company (the “Security Agreement”).

On December 22, 2017, the Company and the Note Holders entered into a stock grant agreement (the “Stock Grant Agreement”) to cause the early conversion of the Payout Notes into an aggregate of 5,628,291 shares of the Company’s Common Stock (the “Payout Shares”), valued at $5,626 based on the quoted share price in the market for our common stock on December 22, 2017, and to effectuate the release of all security interests associated with the Payout Notes.

Pursuant to the Stock Grant Agreement, the Company also agreed to provide for the issuance of an aggregate of 1,857,336 additional shares of Common Stock to the Note Holders as consideration for the various agreements of the Note Holders contained in the Stock Grant Agreement (the “Additional Shares”), subject to stockholder approval. In addition, as promptly as possible following entry into the Stock Grant Agreement, the Company is required to ~~deliver pursuant hereto;~~

~~(g) The Contributor Parties shall have received such novations~~file a proxy statement and ~~general releases as they may reasonably require from each owner~~hold a special meeting of ~~Interests (other than~~its stockholders to authorize and approve the ~~Contributor Parties) in the Contributed Entities with respect to the assets and interests being contributed and from each creditor~~issuance of the ~~Contributed Entities, in such form as shall be satisfactory to the Contributor Parties;~~

~~(h) With respect to the Subsequent Closings, the Contributor Parent may, in its discretion, require that it receive an opinion from~~Additional Shares. As of December 31, 2017, a ~~prominent investment banking firm or adviser to the effect that the transactions contemplated with respect to each Subsequent Closing are fair to~~proxy statement was not filed, and special meeting of the stockholders ofhas not been held. Therefore, during the ~~Contributor Parent from a financial point of view;~~

(i) The shares of Acquiror Parent Common Stock issuable at such Closing shall be approved for listing on NASDAQ and each other exchange on which such shares are listed, subject only to official notice of issuance thereof;

~~(j) On or prior to the Initial Closing Date, Acquiror Parent shall have entered into the Registration Rights Agreement;~~

~~(k) On or prior to the Initial Closing Date, Acquiror Parent shall have entered into the Lock Up Agreement;~~

(l) On or prior to the Initial Closing Date, the Executives shall have resigned from their respective executive offices at the Company (it being understood, however, that their respective employment agreements will remain in full force and effect until the Approval Date) and each of the Executives shallyear ended December 31, 2017, no expenses have been appointed to such non-executive positions of the Acquiror or its subsidiaries as the Board of Directors of the Acquiror Parent shall determine and such non-executive positions shall be reasonably acceptable to the Executives and subject to the approval of the Contributor Parent; and

~~(m) On or prior to the Initial Closing Date, the Acquiror Parent shall have entered into an employment agreement with Suneet Singal in the form ofExhibit J~~ ~~hereto.~~

~~7.2~~ ~~Conditions of Acquiror Parties to the Closings~~. The obligations of Acquiror Parties to consummate the transactions contemplated by this Agreement are subject, at the option of Acquiror Parties, to the satisfaction on or prior to each Closing of each of the following conditions:

(a) The Contributor Party representations and warranties relevant to the interests being contributed at such Closing shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except for inaccuracies which would not, individually or in the aggregate, cause a Contributor Material Adverse Effect;

(b) The Contributor Parties shall have performed and observed, in all material respects (and in all respects, in the case of any covenants and agreements qualified by materiality or Contributor Material Adverse Effect), all covenants and agreements to be performed or observed by Contributor Parties under this Agreement and the other Transaction Agreements with respect to the interests being contributed at such Closing prior to or on such Closing Date;

(c) On such Closing Date, (i) no injunction, order or award restraining, enjoining, or otherwise prohibiting the consummation of the Transactions to be effected at such Closing shall have been issued and remain in force with respect to the interests being contributed on such Closing Date, (ii) no suit, action, or other proceeding (excluding any such matter initiated by any Acquiror Party or any of its Affiliates) shall be pending before any Governmental Authority or body of competent jurisdiction (or threatened) seeking to enjoin or restrain or otherwise prohibit the consummation of the Transactions to be effected at such Closing ; and (iii) no suit, action, or other proceeding (including arbitral proceedings) shall be pending or threatened against any member of the Contributor Group which, if determined wholly adversely to such member, would or could have a Contributor Material Adverse Effect;

(d) The Acquiror Parties shall have received all Acquiror Required Consents with respect to the interests to be contributed on such Closing Date and the Contributor Parties shall have received all Contributor Required Consents with respect to the interests to be contributed on such Closing Date, which the Acquiror Parties deem necessary or desirable;

(e) All material consents and approvals of any Governmental Authority (including any under the HSR Act) required for the transfer of the Contributed Entity Interests to Acquiror on such Closing Date, as contemplated under this Agreement, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after closing, shall have been granted or the necessary waiting period (including any under the HSR Act) shall have expired, or early termination of the waiting period shall have been granted;

(f) The Acquiror Parent Common Stock issuable at such Closing Date shall be approved for listing on NASDAQ and each other exchange on which such shares are listed, subject only to official notice of issuance thereof;

(g) The Contributor Parties shall have delivered all of the deliverables the Contributor Parties are required to deliver pursuant hereto with respect to the interests to be contributed on such Closing Date; and

(h) On or prior to the Initial Closing Date, the Contributor, certain Affiliates of Contributor Parent and Maxim Group LLC shall have entered into the Registration Rights Agreement with Acquiror Parent in the form of~~Exhibit D~~ ~~hereto.~~

~~ARTICLE 8~~

~~CLOSING~~

~~8.1~~ ~~Time and Place of Closing~~.

~~(a) The consummation of the contribution of the Initial Contributed Entity Interests contemplated by this Agreement (the “Initial Closing~~”) shall, unless otherwise agreed to in writing by Acquiror and Contributor, take place at the offices of Ellenoff Grossman & Schole LLP, located at 1345 Avenue of the Americas, New York, New York 10105, at 10:00 a.m., local time, on or about May 17, 2017 (subject to~~Section 10.1~~ ~~hereof), or if all conditions inArticle 7~~ to be satisfied prior to the Initial Closing have not yet been satisfied or waived, as soon thereafter as such conditions have been satisfied or waived. The date on which the Initial Closing occurs is referred to herein as the “~~Initial Closing Date.” The Initial Closing may, by mutual agreement, be undertaken remotely by electronic distribution of Initial Closing documentation.~~

~~(b) The consummation of the contribution of the Mandatory Entity Interests and the Optional Contributed Entity Interests contemplated by this Agreement (the “Subsequent Closings~~”) shall, unless otherwise agreed to in writing by Acquiror and Contributor, take place at the offices of Ellenoff Grossman & Schole LLP, located at 1345 Avenue of the Americas, New York, New York 10105, at 10:00 a.m., local time, such date or dates as the parties may agree following the satisfaction of the conditions precedent to such closings (subject to~~Section 10.1~~ ~~hereof). The date on which each Subsequent Closing occurs is referred to herein as the “Subsequent Closing Date~~” with respect to the transactions to occur on such date. Any of the Subsequent Closings may, by mutual agreement, be undertaken remotely by electronic distribution of Subsequent Closing documentation. The term “~~Closing” shall apply to the Initial Closing and each Subsequent Closing and the term “Closing Date” shall apply to the Initial Closing Date and each Subsequent Closing Date.~~

~~8.2~~ ~~Obligations of the Contributor Parties at Closings~~~~. At each Closing, upon the terms and subject to the conditions of this Agreement, and subject to the simultaneous performance by Acquiror Parties of their obligations pursuant toSection 8.3, the Contributor Parties shall deliver or cause to be delivered, among other things, the following:~~

~~(a) to Acquiror Parties, counterparts of the Assignment and Assumption Agreement, with respect to the assets or entities being contributed, duly executed by Contributor;~~

~~(b) to Acquiror Parties, a certificate of non-foreign status from each of Contributor and Contributor Parent meeting the requirements of Treasury Regulation Section 1.1445-2(b)(2);~~

~~(c) to Acquiror Parties, a certificate duly executed by Suneet Singal, dated as of the Closing, certifying on behalf of Contributor that the conditions set forth inSections 7.2(a)~~ ~~and7.2(b)~~ ~~with respect to the assets or entities being contributed, have been fulfilled;~~

(d) to Acquiror Parties, a certificate duly executed by the secretary or any assistant secretary of each of the Contributor Parties, dated as of such Closing Date, (i) attaching and certifying on behalf of each Contributor Party complete and correct copies of the resolutions or unanimous consent of the board of directors, managers, members, partners, or other equivalent governing body of such Contributor Party authorizing the execution, delivery, and performance by such Contributor Party of this Agreement and the transactions contemplated hereby with respect to the assets or entities being contributed, and (ii) certifying on behalf of such Contributor Party the incumbency of each officer of such Contributor Party executing this Agreement, any other Transaction Agreement or any document deliveredrecorded in connection with ~~such Closing;~~the Additional Shares.

~~(e) to Acquiror Parties, copies of all Contributor Required Consents received from Governmental Authorities or third Parties with respect~~Pursuant to the ~~assets or entities being contributed;~~Stock Grant Agreement, the Company also agreed to make 12 monthly payments on the first of each month commencing on January 1, 2018 in the amounts of $21, $7 and $10 to Messrs. Rafaeli, McGrath, and Ben-Dror, respectively (collectively, the “Cash Payments”). The Cash Payments equal to the interest payments that would have been made to the Note Holders absent the conversion of the Payout Notes and are consideration for certain consulting services provided by the Note Holders specified in the Stock Grant Agreement.

~~(f) to the Acquiror Parties, executed counterparts of the Lock Up Agreement in the form ofExhibit C; and~~

~~(g) all other instruments, documents, and other items reasonably necessary to effectuate the terms of this Agreement, as may be reasonably requested by Acquiror Parties.~~

~~8.3~~ ~~Obligations of Acquiror Parties at Closing~~~~. At each Closing, upon the terms and subject to the conditions of this Agreement, and subject to the simultaneous performance by the Contributor Parties of their obligations pursuant toSection 8.2, Acquiror Parties shall deliver or cause to be delivered, among other things, the following:~~

(a) to Contributor (or Contributor’s designee or designees, as may be provided in writing to Acquiror prior to the Initial Closing Date), the number of duly authorized and issued and nonassessable Transaction Shares comprising the Purchase Price with respect to the assets or entities being contributed;

(b) to Contributor, counterparts of the Assignment and Assumption Agreement with respect to the assets or entities being contributed, duly executed by Acquiror Parent on behalf of itself and the other members of the Acquiror Group;

~~(c) to Contributor, a certificate by~~In addition, Dr. Dolev Rafaeli and Dennis M. McGrath ~~dated~~resigned from the Board of Directors of the Company effective upon the last to occur of (i) receipt of all of the Payout Shares and all of the Additional Shares, (ii) receipt of all of the Cash Payments (either in accordance with the schedule provided in the Stock Grant Agreement or, at the Company’s option, in one lump sum on an accelerated basis), and (ii) the date that the Payout Shares and the Additional Shares have been registered for re-sale in accordance with the Payout Registration Rights Agreement.

In connection with the Stock Grant Agreement, the Security Agreement was automatically terminated.

Shares to former Chief Executive Officer

On December 22, 2017, Mr. Suneet Singal resigned from his position as Chief Executive Officer of the Company, effective as of January 2, 2018. In connection with such ~~Closing Date, certifying~~resignation, on ~~behalf~~December 22, 2017, the Company and Mr. Singal entered into a separation agreement (the “Agreement”), pursuant to which Mr. Singal agreed to resign and the Company agreed to issue to Mr. Singal 1,000,000 shares of ~~such Acquiror Party that~~ the ~~conditions set forth inSections 7.1(a)~~Company’s Common Stock, 333,333 shares of which will vest immediately, 333,333 shares of which will vest upon the first anniversary of the Agreement, and~~7.1(b)~~ 333,334 shares of which will vest upon the second anniversary of the Agreement.

Since the aforesaid shares of common stock were agreed to have been ~~fulfilled~~granted to Mr. Singal as a result of his resignation from the Chief Executive Officer position and Mr. Singal has no obligation to render service in the future with respect to the ~~assets or entities being contributed;~~

~~(d) to Contributor, a certificate duly executed by~~additional Shares, the ~~secretary or any assistant secretary~~Company has recognized an amount of ~~each Acquiror Party, dated~~$910 as part of the general and administrative expenses in the consolidated statement of comprehensive loss. The amount was determined based on the quoted share price in the market as of ~~such Closing Date, (i) attaching and certifying on behalf of such Acquiror Party complete and correct copies of~~ the resolutions of the Board of Directors or other equivalent governing body of such Acquiror Party authorizing the execution, delivery, and performance by such Acquiror Party of this Agreement and the transactions contemplated hereby with respect to the assets or entities being contributed, and (ii) certifying on behalf of such Acquiror Party the incumbency of each officer of such Acquiror Party executing this Agreement, any other Transaction Agreement, or any document delivered in connection with such Closing;

~~(e) to Contributor, copies of all Acquiror Required Consents received from Governmental Authorities or third Parties with respect to the assets or entities being contributed;~~

(f) to Contributor, an executed counterpart of the Registration Rights duly executed by Acquiror Parent with respect to the Acquiror Parent Common Stock being issued on such Closing Date;December 22, 2017.

~~(g) to Contributor, executed counterparts of the Lock Up~~Securities Purchase Agreement ~~in the form ofExhibit C~~;

(h) to Contributor Parent, the full and unconditional guarantee of obligations of the Contributed Entities to mortgage lenders and other parties to Contracts with the Contributed Entities with respect to the assets or entities being contributed, in such form as may be required by such parties and as is reasonably satisfactory to the Acquiror Parent pursuant to such Contracts or in order to obtain any required consents;

~~(i) to Contributor Parties, a certificate of non-foreign status from each of Acquiror and Acquiror Parent meeting the requirements of Treasury Regulation Section 1.1445-2(b)(2); and~~

~~(j) all other instruments, documents, and other items reasonably necessary to effectuate the terms of this Agreement, as may be reasonably requested by Contributor.~~

~~ARTICLE 9~~

~~ADDITIONAL CONTRIBUTIONS~~

~~9.1~~ ~~Optional Contributions~~.

~~(a)~~ ~~Optional Entity Interests~~. On ~~or before~~ December ~~31,~~22, 2017, the ~~Contributor Parties shall have the right, but not the obligation, to contribute to the Acquiror all of their right, title and interest in and to either or both of the following two entities~~Company entered into a Securities Purchase Agreement (the “~~Optional Entity Interests”):~~

(i) All of the Contributor Parties’ interests in the property known as “La Lobera,” located in Punta Banda, Delegation of Maneadero, Urbanization District “General Abelardo L. Rodriguez,” Ensenada, Baja California, being described in that certain Property Title No. 553, File No. 90570, issued on or about September 30, 1964, consisting of 100 hectares of land, or the entity which owns such property (“~~Punta Brava”); and~~

~~(ii) All of the Contributor Parties’ interests in Melrose Plantation, Daufuskie Island, SC 29915 or the entity which owns such property (“Melrose”).~~

~~(b)~~ ~~Consideration for Optional Entity Interests~~. In consideration of the contribution of the Optional Entity Interests, the Acquiror Parent shall issue to the Contributor the following securities on the date of the closing of the contribution of the Optional Entity Interests (the “~~Optional Entity Interest Closing”):~~

~~(i) Transaction Shares with a value (the “Optional Transaction Share Value”) of $86,450,000 (which is 130% of $66,500,000 (the “Contributor Basis~~”), of which $44,000,000 of such Contributor Basis is attributable to Punta Brava and $22,500,000 of such Contributor Basis is attributable to Melrose), with the number of such additional Transaction Shares being determined by dividing the Optional Transaction Share Value by the Per Share Value; provided, however, that the Optional Transaction Share Value stated above assumes that (and it shall be a condition precedent to the Acquiror Parties obligations at the Optional Entity Interest Closing that) the Contributor Basis has been fully paid for in cash or cash equivalents (which term shall include, among other things, commercial paper, Treasury bills or notes, government securities, money market holdings, marketable securities, and operating partnership units) by the Contributor Parties and that the Contributor Parties have no requirement to (A) make any additional payments of any kind relating to the property represented by the Additional Entity Interests, (B) deliver any additional equity or other consideration of any kind to any Person in connection with the acquisition of the property represented by the Additional Entity Interests, or (C) repay any Indebtedness or make any debt service or similar payments relating to Indebtedness that Encumbers the property represented by the Additional Entity Interests. The Transaction Shares issuable under this~~Section 9.1(b)(i)~~ shall be comprised entirely of shares of Acquiror Parent Common Stock if the issuance of such Transaction Shares has been approved by the shareholders of the Acquiror Parent in accordance with NASDAQ rules prior to the issuance thereof and such additional Transaction Shares shall be comprised entirely of shares of Acquiror Parent Preferred Stock if such approval has not yet been obtained.

~~(ii) A five (5) year warrant, in the form ofExhibit K~~ ~~hereto (the “Warrant~~”) to purchase 25,000,000 shares of Acquiror Parent Common Stock (with 16,666,667 of such shares being attributable to Punta Brava and 8,333,333 of such shares being attributable to Melrose) at an exercise price of $3.00 per share that shall vest with respect to the number of underlying shares specified in the table below upon the achievement of the milestone specified in the table below. The number of warrant shares and the exercise price will be equitably adjusted in the event of a stock split, stock combination, recapitalization or similar transaction.

~~Milestone to be Achieved~~	~~Number of Warrant Shares to Vest~~

~~First revenues of at least $500,000 from either asset sales or real estate income – Punta Brava~~		~~8,333,334~~

~~Upon Ground-Breaking with respect to the golf course (Shovels in the ground) - Punta Brava~~		~~8,333,333~~

~~First revenues of at least $500,000 from either asset sales or real estate income – Melrose~~		~~4,666,667~~

~~Upon Ground-Breaking with respect to residential home lots (Shovels in the ground)- Melrose~~		~~4,666,666~~

~~Total~~		~~25,000,000~~

~~(c)~~ ~~Closing Deliveries for Optional Entity Interests~~. If the Contributor Parties elect to contribute the Optional Entity Interests, then, as a condition to the Optional Entity Interest Closing, the Parties shall make the following deliveries to each other at or prior to the Optional Entity Interest Closing.

(i) The Acquiror Parties shall deliver to the Contributor Parties: (A) the number of duly authorized and issued and nonassessable Transaction Shares as is required to be delivered pursuant to~~Section 9.1(b)(i)~~, (B) the Warrant, (C) signed counterparts to an Assignment and Assumption Agreement relating to the Optional Entity Interests, (D) an officer’s certificate certifying to the Contributor Parties that the representations and warranties of the Acquiror Parties contained in~~Article 5~~ of this Agreement are true and correct, except for (1) inaccuracies which would not, individually or in the aggregate, cause or reasonably be expected to cause an Acquiror Material Adverse Effect and (2) other reasonable exceptions to be specified on a schedule that result from events occurring between the Initial Closing and the Optional Entity Interest Closing; and (E) all other instruments, documents and other items reasonably necessary to effectuate the contribution of the Optional Entity Interests, or as may be reasonably requested by the Acquiror Parties.

(ii) The Contributor Parties shall deliver to the Acquiror Parties: (A) signed counterparts to an Assignment and Assumption Agreement relating to the Optional Entity Interests; (B) an officer’s certificate certifying to the Acquiror Parties that the representations and warranties of the Contributor Parties contained in~~Article 4~~ of this Agreement are true and correct as they relate to the Optional Entity Interests and the properties associated with the Optional Entity Interests, except for (1) inaccuracies which would not, individually or in the aggregate, cause or reasonably be expected to cause an Acquiror Material Adverse Effect and (2) other reasonable exceptions to be specified on a schedule that result from events occurring between the Closing and the Optional Entity Interest Closing; (C) if Punta Brava is contributed, then an officer’s certificate certifying to the Acquiror Parties that the following representations and warranties are true and correct in all respects: (I) Punta Brava is a party to a valid and binding unexpired agreement (the “~~Design and Marketing Agreement~~”“Purchase Agreement”) with ~~a design firm (the “Design Firm”) owned by Tiger Woods or another celebrity golfer of equivalent stature (the “Celebrity Golfer~~”) under which all contractual obligations of the parties to the Design and Marketing Agreement through the Optional Entity Interest Closing date have been fully performed by, including without limitation, any payment obligations under the Design and Marketing Agreement due on or prior to the date Optional Entity Interest Closing date and that the Design and Marketing Agreement requires the Design Firm to design the golf course at Punta Brava and permits Punta Brava to utilize the name and likeness of the Celebrity Golfer to promote the golf course at Punta Brava for a period of at least ten (10) years following the Optional Entity Interest Closing date and (II) the Design and Marketing Agreement contains customary terms and conditions as are standard for similar agreements in the industry; and (D) all other instruments, documents and other items reasonably necessary to effectuate the contribution of the Optional Entity Interests, or as may be reasonably requested by the Acquiror Parties.

~~(d)~~ ~~Other Matters Relating to the Optional Entity Interest Contribution~~.

~~(i) The Optional Entity Interest Closing shall occur on or before December 31, 2017 or not at all.~~

(ii) If the Contributor Parties elect to contribute either Punta Brava or Melrose but not both Punta Brava and Melrose, the number of Transaction Shares and Warrants issuable to the Contributor at the Optional Entity Interest Closing shall be adjusted accordingly based upon the relative Optional Transactional Share Values described above. The conditions precedent for the contribution of Punta Brava and/or Melrose must be satisfied or waived as described above before the Contributor Parties make an election to contribute Punta Brava and/or Melrose.

(iii) If the Contributor Parties seek a waiver of any condition precedent to the contribution of the Optional Entity Interests, such waiver must be approved unanimously by the board of directors of the Acquiror Parent.

~~9.2~~ ~~Mandatory Contributions~~.

~~(a)~~ ~~Mandatory Entity Interests. Upon the satisfaction or waiver of the conditions specified inSection 9.2(e)~~ ~~(the “Mandatory Contribution Conditions”) on or before December 31, 2017, the Contributor Parties shall contribute to the Acquiror all of their right, title and interest in and to the following two entities (the “Mandatory Entity Interests”):~~

(i) All of the Contributor Parties’ interests in Goat Head Hill Resort Development Fee, Ltd., which is the owner of the Contributor Parties interests in Dutchman’s Bay, Block # 412296A, Parcel #68 and Goat Head Hill, Block #52148A, Parcel #317 (“~~Antigua”); and~~

~~(ii) All of the Contributor Parties’ interests in Amarillo Ambassador 265, LLC (“Amarillo”).~~

~~(b)~~ ~~Consideration for Mandatory Entity Interests~~. In consideration of the contribution of the Mandatory Entity Interests and subject to the satisfaction or waiver of the Mandatory Contribution Conditions prior to December 31, 2017, the Acquiror Parent shall issue to the Contributor on the date of the closing of the contribution of the Mandatory Entity Interests (the “~~Mandatory Entity Interest Closing”), Transaction Shares with a value (the “Mandatory Transaction Share Value~~”) of $20,000,000 (which Mandatory Transaction Share Value is allocated $14,109,000 to Antigua and $5,891,000 to Amarillo and will be reduced accordingly if one, but not the other, Mandatory Entity Interest is contributed as a result of the failure to satisfy applicable Mandatory Contribution Conditions or other conditions precedent or concurrent to their contribution), with the number of such additional Transaction Shares being determined by dividing the Mandatory Transaction Share Value by the Per Share Value. The Transaction Shares issuable under this~~Section 9.2(b)~~ shall be comprised entirely of shares of Acquiror Parent Common Stock if the issuance of such Transaction Shares has been approved by the shareholders of the Acquiror Parent in accordance with NASDAQ rules prior to the issuance thereof and such additional Transaction Shares shall be comprised entirely of shares of Acquiror Parent Preferred Stock if such approval has not yet been obtained.

~~(c)~~ ~~Determinations Relating to Punta Brava and Melrose~~. Upon the determination by the Contributor that the conditions set forth herein have been satisfied with respect either of the Mandatory Interest Entities, the Contributor shall deliver written notice of such determination to the Acquiror Parent together with (i) an Officer’s Certificate that certifies that each of the conditions precedent to the contribution of the Mandatory Interest Entities has been satisfied, and (ii) the such materials as may be necessary to reasonably support the Contributor’s certificate that such conditions have been satisfied. The Acquiror Parent shall, within ten (10) days following the receipt of such notice, advise the Contributor Parent whether or not it agrees with such determination, and, if it does not so agree, specifying the reasons therefor in reasonable detail. The Acquiror Parent shall not unreasonably fail to agree with the determination of the Contributor. If the Acquiror Parent does not agree with the determination of the Contributor, then the Contributor may, in its discretion, elect either (i) to endeavor, together with the Acquiror Parent, in good faith, to resolve any disagreement on or before December 31, 2017, or (ii) to withdraw the relevant Mandatory Interest Entity from this Agreement. Under no circumstances shall either the failure to resolve any disagreement or the determination of Contributor to withdraw an asset from this Agreement result in or impose any liability whatsoever to any of the Parties hereto, or to any other Person or entity.

~~(d)~~ ~~Closing Deliveries for Mandatory Entity Interests.~~ In addition to the Mandatory Contribution Conditions, it shall be a condition to the Mandatory Entity Interest Closing that the Parties make the following deliveries to each other at or prior to the Mandatory Entity Interest Closing.

(i) The Acquiror Parties shall deliver to the Contributor Parties: (A) the number of duly authorized and issued and nonassessable Transaction Shares as is required to be delivered pursuant to~~Section 9.2(b)~~, (B) signed counterparts to an Assignment and Assumption Agreement relating to the Mandatory Entity Interests, (C) an officer’s certificate certifying to the Contributor Parties that the representations and warranties of the Acquiror Parties contained in~~Article 5~~ of this Agreement are true and correct, except for (1) inaccuracies which would not, individually or in the aggregate, cause or reasonably be expected to cause an Acquiror Material Adverse Effect and (2) other reasonable exceptions to be specified on a schedule that result from events occurring between the Initial Closing and the Mandatory Entity Interest Closing; and (D) all other instruments, documents and other items reasonably necessary to effectuate the contribution of the Mandatory Entity Interests, or as may be reasonably requested by the Acquiror Parties.

(ii) The Contributor Parties shall deliver to the Acquiror Parties: (A) signed counterparts to an Assignment and Assumption Agreement relating to the Mandatory Entity Interests; (B) an officer’s certificate certifying to the Acquiror Parties that the representations and warranties of the Contributor Parties contained in~~Article 4~~ of this Agreement are true and correct as they relate to the Mandatory Entity Interests and the properties associated with the Mandatory Entity Interests, except for (1) inaccuracies which would not, individually or in the aggregate, cause or reasonably be expected to cause an Acquiror Material Adverse Effect and (2) other reasonable exceptions to be specified on a schedule that result from events occurring between the Initial Closing and the Mandatory Entity Interest Closing; (C) if Antigua is contributed, an officer’s certificate certifying to the Acquiror Parties that the Citizenship by Investment Unit has approved the Antigua Contributed Property as an approved project for purposes of the Citizen by Investment Program, and (D) all other instruments, documents and other items reasonably necessary to effectuate the contribution of the Mandatory Entity Interests, or as may be reasonably requested by the Acquiror Parties.

~~(e)~~ ~~Mandatory Contribution Conditions~~.

(i) The following conditions must be satisfied prior to the contribution of Antigua at the Mandatory Entity Interest Closing: (A) the memorandum of agreement, dated July 28, 2015 (the “~~MOA”) among BrownMcLennon, First Capital Real Estate Investment (“FCREI”) and the Government of Antigua and Barbuda (“GOAB~~”) shall have been amended to reflect that BrownMcLennon’s expected 24 units in the LLC (as defined in the MOA) have been transferred to FCREI in consideration for BrownMcLennon being engaged as an independent contractor, to act as broker for the Contributor Parties or their affiliates in connection with the sale of timeshare interests and/or other residential units for which BrownMcLennon would be entitled to a commission from FCREI and all performance dates shall have been extended by at least twelve (12) months; and (B) the conditions specified in Section 4A of the MOA (other than the conditions specified in Sections 4A(9) through, and including 4A(17)) shall have been satisfied or irrevocably waived in writing by GOAB and no new material conditions shall have been substituted therefor.

(ii) The following condition must be satisfied prior to the contribution of Amarillo at the Mandatory Entity Interest Closing: The dispute between the Contributing Parties and Silverlake Park, LLC (the “~~Claimant~~”) pursuant to which the Claimant has attempted to transfer by quitclaim deed 75% of the Contributing Parties’ interest in Amarillo shall have been finally adjudicated or settled in favor of the Contributing Parties and such judgment or settlement shall indicate that the Contributing Parties have full ownership rights in Antigua that may be transferred to the Acquiror Parties free and clear of all Encumbrances (other than existing liens in favor of lenders arising prior to the Initial Closing) or other restrictions and no future payment or other obligation of the Acquiror Parties shall exist under such judgment or settlement.

(iii) The following conditions must be satisfied by the Acquiror Parent prior to the first Mandatory Interest Closing: (1) the Articles of Incorporation of the Acquiror Parent shall have been amended and restated in the form of~~Exhibit E~~ ~~hereto, and (ii) all necessary corporate approvals shall have been obtained in order that the Transaction Shares issuable pursuant to Section 9.2(b) hereof shall be Acquiror Parent Common Stock.~~

~~(f)~~ ~~Other Matters Relating to the Mandatory Entity Interest Contribution~~.

~~(i) The Mandatory Entity Interest Closing shall occur on or before December 31, 2017 or not at all.~~

(ii) If the Mandatory Contribution Conditions or other conditions precedent for one of Antigua or Amarillo are satisfied or waived, but not for both, then only the Mandatory Entity Interests of the entity whose Mandatory Contribution Conditions and conditions precedent have been satisfied or waived shall be contributed, but not those of the other entity and the number of Transaction Shares shall be adjusted accordingly based upon the relative Mandatory Transaction Share Values described above.

(iii) If the Contributor Parties seek a waiver of any Mandatory Contribution Condition or other condition precedent to the contribution of the Mandatory Entity Interests, such waiver must be approved unanimously by the board of directors of the Acquiror Parent.

~~ARTICLE 10~~

~~TERMINATION~~

~~10.1~~ ~~Termination~~. This Agreement may be terminated at any time prior to Closing: (a) by the mutual prior written consent of the Contributor Parties and the Acquiror Parties, (b) by either the Acquiror Parties or the Contributor Parties by giving written notice to the other on or before the twentieth (20^th) day following the date hereof that indicates that the results of its due diligence investigation into the other Party is not satisfactory to it, or (c) by either the Contributor Parties or the Acquiror Parties if the Closing has not occurred on or before 5:00 pm local time in New York on May 17, 2017;~~provided~~,~~however, that the Contributor Parties shall be entitled to an automatic 45 day extension of such date if requested by the Contributor Parties in writing (May 17, 2017 or such extended date being the “End Date”);provided~~,~~further however, that, no Party shall be entitled to terminate this Agreement underSection 10.1(c)~~ if the Closing has failed to occur as a result of such Party’s or its Affiliates’ breach of any representations or warranties set forth herein or such Party’s failure to perform or observe such Party’s or its Affiliates’ covenants and agreements hereunder (including the failure to perform the obligations of such Party with respect to Closing the transactions contemplated hereunder if and when required) in each case in a manner that causes the conditions of the other Party not to be satisfied (a “~~Material Breach”);provided, however~~, that none of the following shall constitute a Material Breach (i) the failure to satisfy a condition or complete an action that is outside of the control of a party, including, without limitation, the failure to obtain the vote or consent of a party’s shareholders, if required or deemed desirable, (ii) the failure to obtain the consent, approval or other action of any third party or Governmental Authority or any similar failure to satisfy a requirement, including, without limitation, the Commission, NASDAQ or the Tel Aviv Stock Exchange including, without limitation, the effectiveness of the Registration Statement (iii) the determination that the Registration Statement or any other required disclosure or similar document of the Acquiror Parties or the Contributor Parties will require the historical financial statements of the Contributor Parent if the matters set forth in clauses (i), (ii) or (iii) above shall prevent a Closing as set forth above, and notwithstanding anything to the contrary in this Agreement, the Closing shall be deferred until the matters set forth in such clauses have been satisfied, and either Party may terminate this Agreement, without penalty or damages, if a Closing has not occurred on or before August 15, 2017.

~~10.2~~ ~~Effect of Termination~~~~. If this Agreement is terminated pursuant toSection 10.1, this Agreement shall become void and of no further force or effect (except for the provisions ofSection 10.3~~ ~~andArticle 11~~ ~~(and the definitions used in such Section and Article), all of which shall continue in full force and effect).~~

~~10.3~~ ~~Damages for Failure to Complete the Closing~~.

(a) In the event that (i) the Acquiror Parties have satisfied all obligations they are required to satisfy prior to any of the Closings contemplated hereby (other than those obligations that have been waived in writing by the Contributor Parties) and the Acquiror Parties stand ready, willing and able to satisfy each of their obligations required to be satisfied at the Closing) and (ii) the Contributor Parties are in Material Breach, then the Acquiror Parties shall be entitled to elect, in their sole discretion, to either (x) seek specific performance of this Agreement, or (y) terminate this Agreement and to receive an amount in cash equal to their direct out-of-pocket expenses incurred in connection with the negotiation and preparation for Closing, supported by reasonable documentation. Upon the occurrence of a termination by the Acquiror Parties pursuant to this~~Section 10.3(a)~~, the Contributor Parties shall, within twenty (20) days, pay to the Acquiror Parties in cash the aforesaid amount by wire transfer of immediately available funds to a bank account or accounts to be designated in writing by the Acquiror Parties.

(b) In the event that (i) the Contributor Parties have satisfied all obligations they are required to satisfy prior to any of the Closings contemplated hereby (other than those obligations that have been waived in writing by the Acquiror Parties) and the Contributor Parties stand ready, willing and able to satisfy each of their obligations required to be satisfied at the Closing) and (ii) the Acquiror Parties are in Material Breach, then the Contributor Parties shall be entitled to elect, in their sole discretion, to either (x) seek specific performance of this Agreement, or (y) terminate this Agreement and to receive an amount in cash equal to their direct out-of-pocket expenses incurred in connection with the negotiation and preparation for Closing, supported by reasonable documentation. Upon the occurrence of a termination by the Contributor Parties pursuant to this~~Section 10.3(b)~~, the Acquiror Parties shall, within twenty (20) days, pay to the Contributor Parties in cash the aforesaid amount by wire transfer of immediately available funds to a bank account or accounts to be designated in writing by the Contributor Parties.

~~ARTICLE 11~~

~~MISCELLANEOUS~~

~~11.1~~ ~~Limitation on Actions~~. Except as specifically set forth herein, the representations, warranties, covenants, and agreements set forth herein shall not survive, and shall be of no further force or effect after, the Closing Date.

~~11.2~~ ~~Counterparts~~. This Agreement may be executed in counterparts, each of which shall be deemed an original instrument, but all such counterparts together shall constitute but one agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

~~11.3~~ ~~Notices~~. All notices that are required or may be given pursuant to this Agreement shall be sufficient in all respects if given in writing, in English and by personal delivery (if signed for receipt), by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or transmitted via electronic mail (following appropriate confirmation of receipt by return email, including an automated confirmation of receipt) and shall be deemed to have been made and the receiving Party charged with notice, when received except that if received after 5:00 p.m. (in the recipient’s time zone) on a Business Day or if received on a day that is not a Business Day, such notice, request or communication will not be effective until the next succeeding Business Day. All notices shall be addressed as follows:

~~If to Acquiror Parties:~~

~~PhotoMedex, Inc.~~

~~2300 Computer Drive, Building G~~

~~Willow Grove, PA 19090~~

~~Attention: Dr. Dolev Rafaeli~~

~~Email: dolev@radiancy.com~~

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

~~BEVILACQUA PLLC~~
~~1629 K Street, NW, Suite 300~~

~~Washington, DC 20006~~

~~Attention: Louis A. Bevilacqua, Esq.~~

~~Email: lou@bevilacquapllc.com~~

~~If to Contributor Parties:~~

~~First Capital Real Estate Trust Incorporated~~

~~60 Broad Street, 34th Floor~~

~~New York NY 10004~~

~~Attention: Suneet Singal~~

~~Email: s@firstcapitalre.com~~

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

~~Ellenoff Grossman & Schole LLP~~
~~1345 Avenue of the Americas, 11~~^th ~~Floor~~

~~New York, NY 10105~~

~~Attention: Barry I. Grossman, Esq.~~

~~Email: bigrossman@egsllp.com~~

Either Party may change its address for notice by notice to the other in the manner set forth above. All notices shall be deemed to have been duly given at the time of receipt by the Party to which such notice is addressed.

~~11.4~~ ~~Expenses~~. Except as otherwise provided in this Agreement, all expenses incurred by the Contributor Parties in connection with or related to the authorization, preparation or execution of this Agreement, and the Exhibits and Schedules hereto and thereto, and all other matters related to the Closing, including all fees and expenses of counsel, accountants and financial advisers employed by the Contributor Parties, shall be borne solely and entirely by the Contributor Parties, and all such expenses incurred by Acquiror Parties shall be borne solely and entirely by Acquiror Parties.

~~11.5~~ ~~Governing Law~~. This Agreement and the legal relations between the Parties shall be governed by and construed under and in accordance with the laws of the State of New York, without regard to conflicts of law principles that would result in the application of any law other than the laws of the State of New York

~~11.6~~ ~~Dispute Resolution~~. Each Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive personal jurisdiction of the United States District Court for the Southern District of New York, or if such court does not have jurisdiction, any New York State court sitting in the County of New York, New York with respect to any dispute, claim or controversy arising out of or in relation to or in connection with this Agreement, and each of the Parties agrees that any action instituted by it against the other with respect to any such dispute, controversy or claim will be instituted exclusively in the New York State and United States District Court for the Southern District of New York. Each Party (a) irrevocably submits to the exclusive jurisdiction of such courts, (b) waives any objection to laying venue in any such action or proceeding in such courts, (c) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over it, and (d) agrees that service of process upon it may be effected by mailing a copy thereof by registered mail (or any substantially similar form of mail), postage prepaid, to it at its address specified in~~Section 11.3~~. The foregoing consents to jurisdiction and service of process shall not constitute general consents to service of process in the State of New York for any purpose except as provided herein and shall not be deemed to confer any rights on any Person other than the Parties to this Agreement.THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANOTHER IN ANY MATTER WHATSOEVER ARISING OUT OF OR IN RELATION TO OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, NOTHING HEREIN SHALL DIVEST A COURT OF COMPETENT JURISDICTION OF THE RIGHT AND POWER TO GRANT A TEMPORARY RESTRAINING ORDER, TO GRANT TEMPORARY INJUNCTIVE RELIEF, OR TO COMPEL SPECIFIC PERFORMANCE OF ANY DECISION OF AN ARBITRAL TRIBUNAL MADE PURSUANT TO THIS PROVISION.

~~11.7~~ ~~Captions~~~~. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.~~

~~11.8~~ ~~Waivers~~. Any failure by any Party to comply with any of its obligations, agreements or conditions herein contained may be waived by the Party to whom such compliance is owed by an instrument signed by the Party to whom compliance is owed and expressly identified as a waiver, but not in any other manner. No waiver of, or consent to a change in, any of the provisions of this Agreement shall be deemed or shall constitute a waiver of, or consent to a change in, other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

~~11.9~~ ~~Assignment~~. No Party shall assign or otherwise transfer all or any part of this Agreement to any third Person other than an Affiliate, nor shall any Party delegate any of its rights or duties hereunder (including by change of control, merger, consolidation, or stock purchase) to any third Person other than an Affiliate, without the prior written consent of the other Party and any transfer or delegation made without such consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Notwithstanding the foregoing, Acquiror may, by providing written notice to Contributor, but without Contributor’s consent, assign its rights and delegate its duties hereunder in whole (but not in part) to an Affiliate of Acquiror;~~provided, however, such assignment shall not be permitted if it would reasonably be anticipated to increase the liability of any member of the Contributing Group with respect to Taxes.~~

~~11.10~~ ~~Entire Agreement~~. This Agreement and the documents to be executed hereunder and the Exhibits and Schedules attached hereto constitute the entire agreement among the Parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties pertaining to the subject matter hereof. In entering into this Agreement, none of the Parties has relied on any statement, representation, warranty, covenant, or agreement of any other Party or its representatives other than those expressly contained in this Agreement.

~~11.11~~ ~~Amendment~~~~. This Agreement may be amended or modified only by an agreement in writing signed by the Contributor Parties and the Acquiror Parties and expressly identified as an amendment or modification.~~

~~11.12~~ ~~No Third-Person Beneficiaries~~~~. Nothing in this Agreement shall entitle any Person other than the Acquiror Parties and the Contributor Parties to any claim, cause of action, remedy or right of any kind.~~

~~11.13~~ ~~Severability~~. If any provision of this Agreement, or any application thereof, is held invalid, illegal or unenforceable in any respect under any Law, this Agreement shall be reformed to the extent necessary to conform, in each case consistent with the intention of the Parties, to such Law, and, to the extent such provision cannot be so reformed, then such provision (or the invalid, illegal or unenforceable application thereof) shall be deemed deleted from (or prohibited under) this Agreement, as the case may be, and the validity, legality and enforceability of the remaining provisions contained herein (and any other application of such provision) shall not in any way be affected or impaired thereby.

~~11.14~~ ~~Business Day~~. If the date specified in this Agreement for giving any notice or taking any action is not a Business Day (or if the period during which any notice is required to be given or any action taken expires on a date which is not a Business Day), then the date for giving such notice or taking such action (and the expiration of such period during which notice is required to be given or action taken) shall be the next day which is a Business Day.

~~11.15~~ ~~References~~. In this Agreement: (a) references to any gender includes a reference to all other genders; (b) references to the singular includes the plural, and vice versa; (c) reference to any Article or Section means an Article or Section of this Agreement; (d) reference to any Exhibit or Schedule means an Exhibit or Schedule to this Agreement, all of which are incorporated into and made a part of this Agreement; (e) unless expressly provided to the contrary, “hereunder”, “hereof”, “herein” and words of similar import are references to this Agreement as a whole and not any particular Section or other provision of this Agreement; (f) references to “$” or “dollars” means United States Dollars; and (g) “include” and “including” mean include or including without limiting the generality of the description preceding such term.

~~11.16~~ ~~Construction~~. Acquiror and Contributor are capable of making such investigation, inspection, review and evaluation of the Contributed Entity Interest and the Acquiror Group, respectively, as a prudent purchaser would deem appropriate under the circumstances, including with respect to all matters relating to their value, operation and suitability. Contributor Parties and Acquiror Parties have had the opportunity to exercise business discretion in relation to the negotiation of the details of the transaction contemplated hereby. This Agreement is the result of arm’s-length negotiations from equal bargaining positions. It is expressly agreed that this Agreement shall not be construed against any Party, and no consideration shall be given or presumption made, on the basis of the Persons who drafted this Agreement or any particular provision thereof.

~~11.17~~ ~~Limitation on Damages~~. Notwithstanding anything to the contrary contained herein, none of the Acquiror Parties, the Contributor Parties, or any of their respective Affiliates shall be entitled to consequential, special, or punitive damages in connection with this Agreement and the transactions contemplated hereby (other than consequential, special, or punitive damages suffered by third Persons for which responsibility is allocated between the Parties in this Agreement) and each of the Acquiror Parties and the Contributor Parties, for itself and on behalf of its Affiliates, hereby expressly waives any right to consequential, special, or punitive damages in connection with this Agreement and the transactions contemplated hereby (other than consequential, special, or punitive damages suffered by third Persons for which responsibility is allocated between the Parties in this Agreement).

~~11.18~~ ~~Recourse Only Against Parties~~. All claims, obligations, liabilities, or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement, or the negotiation, execution, or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made only against (and are expressly limited to) the entities that are expressly identified as parties in the preamble to this Agreement or any successor or permitted assign of any such Parties (“~~Contracting Parties~~”). No Person who is not a Contracting Party, including without limitation any director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney, or representative of, and any financial advisor or lender to, any Contracting Party, or any director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney, or representative of, and any financial advisor or lender to, any of the foregoing (“~~Nonparty Affiliates~~”), shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance, or breach; and, to the maximum extent permitted by law, each Contracting Party hereby waives and releases all such liabilities, claims, causes of action, and obligations against any such Nonparty Affiliates. Without limiting the foregoing, to the maximum extent permitted by law, (a) each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose liability of a Contracting Party on any Nonparty Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise; and (b) each Contracting Party disclaims any reliance upon any Nonparty Affiliates with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement.

~~[Signature Page Follows]~~

~~IN WITNESS WHEREOF~~~~, this Agreement has been signed by each of the Parties as of the date first above written.~~

	~~CONTRIBUTOR:~~

	~~FIRST CAPITAL REAL ESTATE OPERATING~~
	~~PARTNERSHIP, L.P.~~

	~~By: First Capital Real Estate Trust Incorporated, its~~ ~~general partner~~

	~~By:~~	~~/s/ Suneet Singal~~
	~~Name:~~	~~Suneet Singal~~
	~~Title:~~	~~Chief Executive Officer~~

	~~CONTRIBUTOR PARENT:~~

	~~FIRST CAPITAL REAL ESTATE TRUST~~
	~~INCORPORATED~~

	~~By:~~	~~/s/ Suneet Singal~~
	~~Name:~~	~~Suneet Singal~~
	~~Title:~~	~~Chief Executive Officer~~

	~~ACQUIROR:~~

	~~FC GLOBAL REALTY OPERATING PARTNERSHIP, LLC~~

	~~By:~~	~~/s/ Dolev Rafaeli~~
	~~Name:~~	~~Dolev Rafaeli~~
	~~Title:~~	~~President~~

	~~ACQUIROR PARENT:~~

	~~PHOTOMEDEX, INC~~

	~~By:~~	~~/s/ Dolev Rafaeli~~
	~~Name:~~	~~Dolev Rafaeli~~
	~~Title:~~	~~Chief Executive Officer~~

~~Exhibits~~

~~Exhibit A – Assignment and Assumption Agreement~~

~~Exhibit B – Certificate of Designation~~

~~Exhibit C – Lock Up Agreement~~

~~Exhibit D – Registration Rights Agreement~~

~~Exhibit E – Amended and Restated Articles of Incorporation of Acquiror Parent~~

~~Exhibit F – Amended and Restated Bylaws of Acquiror Parent~~

~~Exhibit G – Voting Agreement~~

~~Exhibit H – Form of Payout Notes~~

~~Exhibit I – Payout Notes Security Agreement~~

~~Exhibit J – Employment Agreement with Suneet Singal~~

~~Exhibit K – Warrant~~

~~Exhibit A~~

~~Assignment and Assumption Agreement~~

~~ASSIGNMENT AND ASSUMPTION AGREEMENT~~

~~THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is entered into as of the __ day of ____, 2017, by and between First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership (“Assignor”), First Capital Real Estate Trust Incorporated (“Assignor Parent”), FC Global Realty Operating Partnership,~~Opportunity Fund I-SS, LLC, a Delaware limited liability company (the “Investor”), under which the Investor may, but is not obligated to, invest up to $15 million in the Company in a series of closings over a period prior to December 31, 2018, in exchange for which the Investor will receive shares of the Company’s newly designated Redeemable Convertible Series B Preferred Stock (“~~Assignee~~Series B Shares) at a purchase price of $1.00 per share (the “Option”).

On December 22, 2017 (the “Initial Date”), the Company and the Investor completed the first closing under the Purchase Agreement, pursuant to which the Investor exercised a portion of the Option and provided $1,500 to the Company in exchange for 1,500,000 shares of Series B Shares.

Proceeds from any subsequent closings must be used to invest in Income Generating Properties (as that term is defined in the Purchase Agreement) that have been approved by the Company’s Board of Directors or as otherwise agreed to between the Company and the Investor in writing prior to such subsequent closings.

Under ASC 480, “Distinguishing Liabilities from Equity” preferred stock that is not redeemable or is redeemable solely at the option of the issuer shall be included in stockholders’ equity. If the instrument meets any of the following criteria, mezzanine classification between liabilities and stockholders’ equity would be required:

●

it is redeemable at a fixed or determinable price on a fixed or determinable date or dates

●

it is redeemable at the option of the holder; or

●

It has conditions for redemption which are not solely within the control of the issuer, such as stocks which must be redeemed out of future earnings

In addition, per ASC 480, deemed liquidation events that require (or permit at the holders options) the redemption of only one or more of a particular class of equity instrument for cash or other assets cause those instruments to be considered contingently redeemable and therefore, subject to mezzanine classification.

Since the Series B Shares have conditional redemption provisions which are outside of the control of the Company and also contain a deemed liquidation preference, the Series B Shares were classified as mezzanine financing at their initial fair value at the Initial Date. Subsequent measurement is unnecessary if it is not probable that the instrument will become redeemable. If it is probable that the equity instrument will become redeemable the following measurement methods shall be applied in accordance with either of the following methods and shall be applied in a consistent manner:

●

Accrete changes in the redemption value over the period from the date of issuance (or from the date that it becomes probable that the instrument will become redeemable, if later) to the earliest redemption date of the instrument using an appropriate methodology, usually the interest method. Changes in the redemption value are considered to be changes in accounting estimates.

●

Recognize changes in the redemption value (for example, fair value) immediately as they occur and adjust the carrying amount of the instrument to equal the redemption value at the end of each reporting period. This method would view the end of the reporting period as if it were also the redemption date for the instrument.

Under ASC 480, the aforementioned written call Option is considered freestanding, as the Company believes it is legally detachable and separately exercisable. As the option is exercisable for shares subject to possible redemption at the option of the holder, as of the Initial Date, the Option was measured at fair value in total amount of $5,584 and recorded as a non-current financial liability on the consolidated balance sheet as of December 31, 2017. Excess of the initial value of the option liability over the proceeds received, amounting to $4,084, was charged immediately into the consolidated statement of comprehensive loss as financing expenses. As such, there were no residual proceeds to allocate to the Series B preferred shares at the Initial Date.

The Option is marked to market in each reporting period when changes in the fair value of the Option are charged into statement of comprehensive loss. Consequently, during the year ended December 31, 2017, the Company recorded finance income of $1,194 related to change in the fair value of the instrument during the period from the Initial Date through December 31, 2017.

In addition, the Company has incurred direct and incremental issuance costs amounting to $42 which were charged immediately into the consolidated statement of comprehensive loss as finance expenses, as the Option was presented at fair value at the Initial Date.

On December 22, 2017, each Series B Share was convertible into 1.24789 shares of common stock valued at $1.00 per share. As a result, Beneficial Conversion Feature (the “BCF”) amounting to approximately $372 was measured assuming full conversion. However, the conversion of the Preferred Stock is subject to certain contingencies, which impact the timing and amount of the BCF. As of December 31, 2017, the Company should record a BCF for the Preferred Stock for any shares convertible at that time without requiring stockholder approval through the planned proxy statement. However, as no residual proceeds were allocable to the Series B Shares, no BCF was recognized at December 31, 2017.

The fair value of the Option was based on management estimates and values derived from a calculation to provide an approximate indication of value. The fair value of Option was estimated at the Initial Date and December 31, 2017 by using hybrid method that includes scenario of conversion and scenario liquidation and the Black-Scholes option pricing model. In the first scenario, the Series B Preferred Stock price applied in the model was assumed based on the as-converted price on the date of estimation. Expected volatility was estimated by using a group of peers in the real estate development, homebuilding and income-producing properties sectors, and applying a 75% percentile ranking based on the total capitalization of the Company. In the second scenario, the option was estimated based on the value of the option in a proposed liquidation scenario. A probability weighting was applied to determine the expected value of the option.

The following are the key underlying assumptions that were used:

Option Value:

	December 22, 2017		December 31, 2017
Dividend yield (%)		0		0
Expected volatility (%)		36.9		36.9
Risk free interest rate (%)		1.72		1.74
Strike price		1.00		1.00
Series B Preferred Stock price		1.24		1.13
Probability of if-converted scenario (%)		90		90
Probability assumed liquidation scenario (%)		10		10
Expected term of Option (years)		1.0		1.0

In the absence of voluntary conversion and assuming no breaches as described above under “Redemption”, the Series B Shares automatically convert on May 31, 2018. As such, accretion adjustments to the carrying amount of the Series B Shares to the automatic conversion date of May 31, 2018 are recorded as deemed dividends.

The table below summarizes the change in the mezzanine financing during the year ended December 31, 2017:

	December 31, 2017

Opening balance	$	—
Proceeds from issuance of Series B Shares		1,500
Recognition of written call Option as a discount of Series B Shares		(1,500	)
Amortization of discount		84
Accretion of cumulative dividend		3

Closing balance	$	87

In addition, upon the Purchase Agreement, the Company agreed the following:

●

To nominate two directors to the Company’s Board of Directors upon request of the Investor (see also Note 17).

●

So long as the shares of Series B Shares purchased by the Investor are outstanding, the Company’s debt (as defined by U.S. generally accepted accounting principles) shall not exceed 45% of its fixed assets without the prior written consent of the Requisite Holders. As of December 31, 2017, the covenant has been met by the Company.

●

Subject to stockholder approval, to amend the Certificate of Designation for the Company’s Series A Shares to change the conversion price from $2.5183 to $1.12024 such that each share of Series A Share will be initially convertible into 56.2 shares of Common Stock instead of 25 shares of Common Stock.

The above inducement is considered as modification for which the fair value of the Series A Shares shall be measured pre-and post-modification subject to the stockholders’ approval. Should the fair value change by greater than 10% as a result of the modification, any original Series A Shares will be considered extinguished with the incremental value reflected in expense. Should the modification not result in a greater than 10% change, the modification of the conversion feature for the Series A Shares will be treated analogous to modification for stock compensation arrangements. Any incremental value, will be recorded as a deemed dividend to the Series A Shareholders.

As of December 31, 2017, the stockholders’ approval has not been taken place.

Common Stock Options

The Company has a Non-Employee Director Stock Option Plan. This plan has authorized 74,000 shares; of which 2,135 shares had been issued or were reserved for issuance as awards of shares of common stock, and 12,079 shares were reserved for outstanding stock options. As of December 31, 2017 the number of shares available for future issuance pursuant to this plan is 71,865.

In addition, the Company has a 2005 Equity Compensation Plan (“2005 Equity Plan”) which has authorized 1,200,000 shares, of which 467,328 shares had been issued or were reserved for issuance as awards of shares of common stock, and 143,815 shares were reserved for outstanding options. There are no further shares available for future issuance pursuant to this plan.

A summary of stock option transactions under the Non-Employee Director Stock Option Plan and the 2005 Equity Plan during the years ended December 31, 2017 and 2016 were as follows:

	Number of Stock Options			Weighted Average Exercise Price
Outstanding at December 31, 2015		150,138			67.99
Granted		—			—
Exercised		—			—
Expired/cancelled		(15,988	)		82.26
Outstanding at December 31, 2016		134,150		$	85.22
Granted		—			—
Exercised		—			—
Expired/cancelled		(133,150	)		91.43
Outstanding at December 31, 2017		1,000		$	75.00
Exercisable at December 31, 2017		800		$	75.00

A summary of non-vested restricted stock during the years ended December 31, 2017 and 2016, were as follows:

	Shares of restricted stock			Weighted Average Grant-Date Fair Value
Non-vested at December 31, 2015		258,572			10.57
Granted		—			—
Vested/cancelled		(129,211	)		10.04
Non-vested at December 31, 2016		129,361			11.11
Granted		—			—
Vested/cancelled		(122,861	)		14.69
Non-vested at December 31, 2017		6,500			9.25

The total equity-based compensation expense related to all of the Company’s equity-based awards, recognized during the years ended December 31, 2017 and 2016, as part of the discontinuing operation in total amount of $69 and $1,969, respectively. In addition, during the years ended December 31, 2017, an amount of $2,364 was recorded as general and administrative expenses as part of continuing operation.

At December 31, 2017, there was $35 of total unrecognized compensation cost related to non-vested stock awards that based on their original vesting terms was expected to be recognized over a weighted-average period of .17 years. Following the completion of the transaction described in Note 17, such compensation will be accelerated.

Note 15

Income Taxes:

On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act of 2017 (the “Tax Act”). The Tax Act makes broad and complex changes to the U.S. tax code, including, but not limited to, reducing the U.S. federal corporate tax rate from 35 percent to 21 percent; eliminating the corporate alternative minimum tax (AMT) and changing how existing AMT credits can be realized; creating a new limitation on deductible interest expense; changing rules related to uses and limitations of net operating loss carryforwards created in tax years beginning after December 31, 2017; limitations on the deductibility of certain executive compensation.

In December 2017, the SEC issued Staff Accounting Bulletin No. 118 (“SAB 118”), which addresses situations where the accounting is incomplete for the income tax effects of the Act. SAB 118 directs taxpayers to consider the impact of the Act as “provisional” when the Company does not have the necessary information available, prepared or analyzed (including computations) to finalize the accounting for the change in tax law. Companies are provided a measurement period of up to one year to obtain, prepare, and analyze information necessary to finalize the accounting for provisional amounts or amounts that cannot be estimated as of December 31, 2017.

With regards to the Tax Act impact on the tax provision as it relates to the Company for the year-ending December 31, 2017, we have recognized the provisional impact of tax reform related to the revaluation of deferred tax assets and liabilities from 35% to 21% of $17.3 million (As Restated) tax expense, which is offset by a reduction in the valuation allowance.

Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in operations in the period that includes the enactment date.

A valuation allowance is provided when it is more likely than not that some portion or all of a deferred tax asset will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income and the reversal of deferred tax liabilities during the period in which the related temporary difference becomes deductible. The benefit of tax positions taken or expected to be taken in the Company’s income tax returns are recognized in the consolidated financial statements if such positions are more likely than not of being sustained.

For the years ended December 31, 2016, and 2015, the following table summarizes the components of income before income taxes from continuing operations and the provision for income taxes:

	Year Ended December 31,
	2017			2016
Loss from continuing operations before income tax:
U.S. (As Restated)	$	(16,261	)	$	—
Israel		(453	)		—
UK		(219	)		—
Loss from continuing operations before income taxes (As Restated)	$	(16,933	)	$	—

Income tax expense (benefit):
United States - Federal tax:
Current	$	—		$	—
Deferred		—			—

United States - State tax:
Current		—			—
Deferred:		—			—

Israel:
Current		—			—
Deferred					—

UK:
Current		—			—
Deferred		—			—

Other foreign:
Current		—			—
Deferred:		—			—

Income tax expense (benefit)	$	—		$	—

For the years ended December 31, 2017 and 2016, the following table reconciles the federal statutory income tax rate to the effective income tax rate:

	Year Ended December 31,
	2017			2016
Federal Tax rate		34	%		34	%

Federal tax expense (benefit) at 34% (As Restated)	$	(5,758	)	$	—
State and local income tax, net of Federal benefit		(271	)		—
Foreign rate differential		519			—
Increase in taxes from permanent differences in stock-based compensation		333			—
Increase in taxes from permanent difference in Intangible asset impairment		—			—
US taxation of foreign earnings – Subpart F		—			—
Return to provision and other adjustments		289			—
Impact of deferred tax adjustments		—			—
Federal Tax reform (As Restated)		17,260			—
Change in valuation allowance (As Restated)		(12,372	)		—

Income tax expense (benefit)	$	—		$

As of December 31, 2017, the Company had approximately $125 million of Federal net operating loss carryforwards in the United States. A 100% valuation allowance has been recorded against these tax attributes and the net deferred tax assets of the U.S. group of companies. Based on current operating conditions and the availability of projected future sources of taxable income, the Company determined that it was not more likely than not that the net deferred tax assets of the U.S. companies would be realized in the future. The Federal NOLs expire generally from 2022 to 2037.

After conversion to U.S. dollars, Photo Therapeutics Limited had approximately $12.8 million of net operating loss carryforwards in the U.K. A 100% valuation allowance has been applied against these loss carryforwards.

The following table summarizes the components of deferred income tax assets and (liabilities):

	December 31,
	2017			2016

Loss carryforwards	$	29,693		$	30,770
AMT credits		112			112
Foreign tax credits		12,308			12,308
Accrued employment expenses		11			2,652
Amortization and write-offs		875			1,299
Capitalized R&D costs		1,013			1,342
Deferred revenues		—			6,263
Depreciation		635			1,224
Doubtful accounts		—			225
Inventory reserves		—			459
Tax on undistributed earnings		(517	)		(517	)
Other accruals and reserves (As Restated)		1,737			602
Return allowances		—			456

Gross deferred tax asset (As Restated)		45,867			57,195

Less: valuation allowance (As Restated)		(45,867	)		(57,195	)

Net deferred tax asset	$	—		$	—

Among other non-current liabilities		—			—

Taxes, which may apply in the event of a disposal of investments in subsidiaries, have not been included in computing the deferred taxes, as the Company anticipates it would liquidate those subsidiaries that can be closed on a tax free basis

FC Global Realty Inc. (formerly PhotoMedex, Inc.) files corporate income tax returns in the United States, both in the Federal jurisdiction and in various State jurisdictions. The Company is subject to Federal income tax examination for calendar years 2014 through 2017 and is also generally subject to various State income tax examinations for calendar years 2014 through 2017. Photo Therapeutics Limited files in the United Kingdom. Radiancy (Israel) Limited files in Israel. The Israeli subsidiary is subject to tax examination for calendar years 2013 through 2017.

The Israeli subsidiary is entitled to reduced tax rates regarding income that is subject to tax pursuant to the “approved enterprise” until end of year 2012 and “preferred enterprise” from year 2013. Other income is subject to the regular corporate income tax rate. For the year 2015 and thereafter, all income in Israel was taxed at the regular corporate income tax rate.

Change in Israel rates. Effective for tax periods beginning 1 January 2014, the standard corporate income tax rate was increased from 25% to 26.5%. On January 4, 2016, the plenary Knesset passed the Law for Amendment of the Income Tax Ordinance No. 216 which provides, inter alia, for a reduction of the Companies Tax rate commencing from 2016 and thereafter by the rate of 1.5% such that the rate will be 25%.

Change in U.K. rates. In addition, effective for tax periods beginning on April 1, 2014, the United Kingdom tax rate was reduced from 23% to 21%. A further enacted decrease in the tax rate to 20% took effect on April 1, 2015. The rate further reduced to 19% effective April 1, 2017. These changes in rate will affect the tax provision with regard to the tax attributes of Photo Therapeutics Limited, the United Kingdom subsidiary.

Unrecognized Tax Benefits. The Company is subject to income taxation in the U.S., Israel, the U.K., and Colombia. Unrecognized tax benefits reflect the difference between positions taken or expected to be taken on income tax returns and the amounts recognized in the financial statements. Resolution of the related tax positions through negotiations with the relevant tax authorities or through litigation could take years to complete. It is difficult predict the timing of resolution for tax positions since such timing is not entirely within the control of the Company.

The Company and its subsidiaries file income tax returns in all of the countries listed above.

Management conducted an analysis of the facts and law surrounding the then existing income tax uncertainties, and found that such liability as may have arisen was of a much lesser magnitude and is able to be extinguished by loss carryforwards and carrybacks,

Reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:

Balance at December 31, 2015	$	1,921
Additions / Settlements due 2016		—
Balance at December 31, 2016	$	1,921
Additions / Settlements due 2017		—
Balance at December 31, 2017	$	1,921

Note 16

Significant Customer Concentration:

No single customer accounted for more than 10% of total company revenues of discontinued operations for the years ended December 31, 2017 and 2016.

Note 17

Subsequent Events:

Second Closing under Securities Purchase Agreement

On January 24, 2018, the Company and the Investor, as discussed in Note 13, completed a second closing under the Purchase Agreement, pursuant to which the Investor provided $2,225 to the Company in exchange for 2,225,000 shares of the Company’s Series B Preferred Stock. The issuance of these securities was made in reliance upon an exemption from the registration requirements of Section 5 of the Securities Act of 1933, as amended. The proceeds from this closing shall be used to perform due diligence and invest in Income Generating Properties (as defined in the Purchase Agreement) that have been approved by the Company’s Board of Directors.

Amended and Restated Separation Agreement

On February 12, 2018, the Company entered into an Amended and Restated Separation Agreement (the “Restated Agreement”), pursuant to which the Company has agreed to pay Mr. Stephen Johnson, its former Chief Financial officer, an amount of $123 in 11 installments as follows: the first 6 installments of $10 each, and the following five installments of $12.5 each. The first payment was made on February 15, 2018, and subsequent payments are to be made on or before the 15th day of each succeeding month, with the final installment to be paid on or before December 15, 2018. The Company will also provide a health (medical, dental and/or vision) insurance reimbursement payment for Mr. Johnson and his family, for a period of 11 months, in the agreed upon amount of $3 per month.

In addition, the Company has agreed to issue to Mr. Johnson 271,000 shares of the Company’s common stock, subject to appropriate adjustment for any stock splits, stock or business combinations, recapitalizations or similar events occurring after the date of the Restated Agreement. Those shares will be issued on any business day during the period commencing on the date that is six months after the date of the Restated Agreement and ending on the date that is three business days after such six-month anniversary.

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing

On February 20, 2018, the Company received written notification (the “Notice”) from Nasdaq that the closing bid price of its common stock had been below the minimum $1.00 per share for the previous 30 consecutive business days, and that the Company is therefore not in compliance with the requirements for continued listing on Nasdaq under Nasdaq Marketplace Rule 5550(a)(2). The Notice provides the Company with an initial period of 180 calendar days, or until August 19, 2018, to regain compliance with the listing rules. The Company will regain compliance if the closing bid price of its common stock is $1.00 per share or higher for a minimum period of ten consecutive business days during this compliance period, as confirmed by written notification from Nasdaq.

If the Company does not achieve compliance by August 19, 2018, the Company expects that Nasdaq would provide notice that its securities are subject to delisting from the Capital Market.

Departure and Election of certain Directors

Effective March 4, 2018, Suneet Singal, the Company’s former Chief Executive Officer, has resigned from the Company’s Board of Directors. In addition, effective March 5, 2018, Darrel Menthe has also resigned from the Company’s Board of Directors. Their resignations were not in connection with any known disagreement with the Company on any matter.

Under the provisions of the Stock Purchase Agreement dated December 22, 2017 (see also Note 14), Opportunity Fund I-SS, LLC has notified the Company that it may exercise its right to appoint two replacement directors to the Company’s Board of Directors.

Letter Agreement with OFI

Under the Purchase Agreement, the proceeds from the first closing were to be used for working capital and general corporate purposes, the proceeds from the second closing were to be used to perform due diligence and invest in Income Generating Properties (as defined in the Purchase Agreement) that have been approved by the Board of Directors of the Company, and proceeds from subsequent closings were to be used to invest in Income Generating Properties (as defined in the Purchase Agreement) that have been approved by the Board of Directors of the Company or as otherwise agreed to between the Company and OFI in writing prior to such subsequent closings.

On March 16, 2018, the Company and OFI entered into a letter agreement, pursuant to which OFI agreed that the Company may use all proceeds for the purposes and uses described in a budget agreed to between the Company and OFI at the time the letter agreement was signed. In connection with such letter agreement, the Company agreed to provide OFI, on a quarterly basis, on or prior to 15 days after the end of each quarter, a report that describes, in reasonable detail, the actual expenses incurred, and payments made during such period compared to the expenses and payments specified in the budget for such period, certified by the Chief Financial Officer of the Company.

ANNEX B

REMEDIATION AGREEMENT

ThisRemediation Agreement (hereinafter the “Agreement”) is dated as of September 24, 2018, by and ~~PhotoMedex Inc.~~betweenFC Global Realty Incorporated, a Nevada corporation (“~~Assignee Parent~~(the “Company”).,Opportunity Fund I-SS, LLC, a Delaware limited liability company (“OFI”), and the other parties signatory hereto.

~~RECITALS~~

~~WHEREAS, Assignor, Assignor Parent, Assignee and Assignee Parent have entered into an Interest Contribution Agreement dated March 31, 2017 (the “Contribution Agreement”), pursuant to which the Assignor has agreed to sell and transfer to Assignee all of its right, title and interest in and to (i) the properties set forth on Exhibit I hereto (the “Contributed Real Properties”) and (ii) the entities set forth on Exhibit II hereto (the “Contributed Entities”, and together with the Contributed Real Properties, the “Contributed Assets”);~~

~~WHEREAS, the Contributed Entities have rights or interests in and to the Contributed Properties (as such term is defined in the Contribution Agreement);~~

WHEREAS, Assignor or Assignor Parent has either (singly or together) guaranteed certain obligations of the Contributed Entities or undertaken or agreed to perform certain services on behalf of the Contributed Entities or the Contributed Properties, as set forth on Exhibit III hereto (such guarantees or other obligations, the “~~Guaranteed Obligations”); and~~

~~WHEREAS, Assignor or Assignor Parent has entered into agreements, commitments or obligations with respect to the Contributed Real Properties, as set forth on Exhibit IV hereto (the “Contributed Agreements”).~~

~~NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:~~

~~Capitalized terms used but not otherwise defined in this Agreement have the meanings given said terms in the Contribution Agreement.~~

Assignor hereby irrevocably assigns to Assignee, and Assignee hereby irrevocably accepts from Assignor, all of Assignor’s rights, title and interests in and to the Contributed Assets and the Contributed Agreements. In order to reflect the assignment of Interests in the Contributed Entities, the Contributor Parties shall amend and restate the operating agreement or other constituent instruments of the Contributed Entities or otherwise amend the schedule of members or equity owners to reflect Acquiror as the owner of such Interests and shall deliver to the Acquiror Parties an Interest assignment instrument reflecting such assignment.

Assignee hereby irrevocably agrees to assume and perform all of the obligations of the Assignor and the Assignor Parent pursuant to the Contributed Agreements and the Guaranteed Obligations, in the same manner and to the same extent as if the Assignee were the original obligor or obligors thereunder.

To the fullest extent permitted by law, each party shall indemnify, defend and hold harmless the other parties, their respective officers, directors, shareholders, employees, agents, representatives, consultants, and contractors from and against any and all suits, judgments, actions, liabilities, costs, penalties, fines, damages, claims and expenses (including, without limitation, reasonable attorney’s fees) arising out of, resulting from, the breach or threatened breach by the other party of its obligations hereunder.

~~Assignee Parent does hereby unconditionally and irrevocably guarantee the payment and performance, when due, of each of the obligations of Assignee pursuant hereto.~~

~~Each of the parties hereto hereby represents and warrants to the other as follows:~~

~~(a) The execution, delivery and performance of this Agreement are within such party’s powers and have been duly authorized by all necessary limited liability company, corporate or other action.~~

(b) This Agreement constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, fraudulent transfer or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles (whether considered in a proceeding at law or in equity) and an implied covenant of good faith and fair dealing.

(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, regulatory body or any other third party is required for the due execution, delivery and performance by each party to this Agreement.

~~This Agreement will be binding upon and will inure to the benefit of parties hereto and their respective successors and assigns.~~

Each party shall, upon the request of the other, from time to time, execute and deliver promptly to such other party all instruments and documents of further assurances or otherwise and will do any and all such acts and things as may be reasonably required to carry out the obligations of such party hereunder and to consummate the transactions contemplated hereby.

~~This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument.~~

~~10.~~

~~THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.~~

~~11.~~

Any one or more of the provisions in this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality and unenforceability without affecting the validity, legality and enforceability of the remaining provisions of this Agreement; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

~~IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written by their respective duly authorized officers.~~

	~~ASSIGNOR:~~

	~~FIRST CAPITAL REAL ESTATE OPERATING PARTNERSHIP, L.P.~~

	~~By: First Capital Real Estate Trust Incorporated, its general partner~~

	~~By:~~
	~~Name:~~
	~~Title:~~

	~~ASSIGNOR PARENT:~~

	~~FIRST CAPITAL REAL ESTATE TRUST INCORPORATED~~

	~~By:~~
	~~Name:~~
	~~Title:~~

	~~ASSIGNEE:~~

	~~FC GLOBAL REALTY OPERATING PARTNERSHIP, LLC~~

	~~By:~~
	~~Name:~~
	~~Title:~~

	~~ASSIGNEE PARENT:~~

	~~PHOTOMEDEX, INC~~

	~~By:~~
	~~Name:~~
	~~Title:~~

~~Exhibit I to Assignment and Assumption Agreement~~

~~Exhibit II to Assignment and Assumption Agreement~~

~~Exhibit III to Assignment and Assumption Agreement~~

~~Exhibit IV to Assignment and Assumption Agreement~~

~~Exhibit B~~

~~Certificate of Designation~~

~~EXHIBIT B~~

~~PHOTOMEDEX, INC.~~

~~CERTIFICATE OF DESIGNATION OF PREFERENCES,~~

~~RIGHTS AND LIMITATIONS~~

~~SERIES~~A~~CONVERTIBLE PREFERRED STOCK~~

~~PURSUANT TO SECTION 78.1955 OF THE~~

~~NEVADA REVISED STATUTES~~

~~The undersigned, __________ and ____________, do hereby certify that:~~

~~1. They are the President and Secretary, respectively, of PhotoMedex, Inc., a Nevada corporation (the “Corporation”).~~

~~2. The Corporation is authorized to issue five million (5,000,000) shares of preferred stock, $.01 par value per share, none of which have been issued.~~

~~3. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):~~

WHEREAS, the articles of incorporation of the Corporation provide for a class of its authorized stock known as preferred stock, consisting of five million (5,000,000) shares, $.01 par value per share, issuable from time to time in one or more series;

WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and

WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Contribution Agreement, up to [__________] shares of the preferred stock which the Corporation has the authority to issue, as follows:

NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:

~~TERMS OF PREFERRED STOCK~~

~~Section 1~~. ~~Definitions. For the purposes hereof, the following terms shall have the following meanings:~~

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

“~~Alternate Consideration” shall have the meaning set forth in Section 7(d).~~

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

“~~Closing” means the Closing pursuant to Section 8.1 of the Contribution Agreement.~~

“~~Closing Date~~” means the Trading Day on which all of the Transaction Documents (as defined in the Contribution Agreement) have been executed and delivered by the applicable parties thereto and all conditions precedent to the Corporation’s obligations to deliver the Securities have been satisfied or waived.

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

“~~Common Stock” means the Corporation’s common stock, par value $.01 per share, and stock of any other class of securities into which such securities may hereafter be reclassified or changed.~~

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

“~~Contribution Agreement~~” means the Interest Contribution Agreement, dated March 31, 2017, among the Corporation, First Capital Real Estate Operating Partnership, L.P., First Capital Real Estate Trust Incorporated, and FC Global Realty Operating Partnership, LLC, as amended, modified or supplemented from time to time in accordance with its terms.

“~~Conversion Amount” means the sum of the Stated Value at issue.~~

“~~Conversion Date” shall have the meaning set forth in Section 6(a).~~

“~~Conversion Price” shall have the meaning set forth in Section 6(b).~~

“~~Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.~~

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

“~~Fundamental Transaction” shall have the meaning set forth in Section 7(d).~~

“~~GAAP” means United States generally accepted accounting principles.~~

“~~Holder” shall have the meaning given such term in Section 2.~~

“~~Issuable Maximum” shall have the meaning set forth in Section 6(d).~~

“~~Liquidation” shall have the meaning set forth in Section 5.~~

“~~New York Courts” shall have the meaning set forth in Section 8(d).~~

“~~Notice of Conversion” shall have the meaning set forth in Section 6(a).~~

“~~Original Issue Date~~” means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred Stock.

“~~Person~~” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“~~Preferred Stock” shall have the meaning set forth in Section 2.~~

“~~Securities” means the Preferred Stock, the Warrants, the Warrant Shares and the Underlying Shares.~~

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

“~~Stated Value” shall have the meaning set forth in Section 2, as the same may be increased pursuant to Section 3.~~

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

“~~Subsidiary” means any subsidiary of the Corporation as set forth onSchedule 5.1~~ ~~of the Contribution Agreement and shall, where applicable, also include any direct or indirect subsidiary of the Corporation formed or acquired after the date of the Contribution Agreement.~~

“~~Successor Entity” shall have the meaning set forth in Section 7(d).~~

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

“~~Transfer Agent~~” means Broadridge Corporate Issuer Solutions the current transfer agent of the Corporation with a mailing address of 5 Dakota Drive, Suite 300, Lake Success, NY 11042 and any successor transfer agent of the Corporation.

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

“~~Warrants~~” means, collectively, the Common Stock purchase warrants delivered to the Holder at the Optional Entity Interest Closing in accordance with Section 9.1(b) of the Contribution Agreement, which Warrants shall be exercisable according to the vesting schedule in the table set forth in Section 9.1(b)(ii) of the Contribution Agreement and have a term of exercise equal to five years, in the form of~~Exhibit K~~ ~~attached to the Contribution Agreement.~~

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

~~Section 2~~. ~~Designation, Amount and Par Value. The series of preferred stock shall be designated as its Series A Convertible Preferred Stock (the “Preferred Stock”) and the number of shares so designated shall be up to [_____________] (which shall not be subject to increase without the written consent of all of the holders of the Preferred Stock (each, a “Holder” and collectively, the “Holders”)). Each share of Preferred Stock shall have a par value of $0.01 per share and a stated value equal to $[______] (the “Stated Value”).~~

~~Section 3~~. ~~Dividends~~. Except for stock dividends or distributions for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends shall be paid on shares of Preferred Stock.

~~Section 4~~. ~~Voting Rights~~. Except as otherwise provided herein or as otherwise required by law, the Preferred Stock shall have no voting rights. However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights of the Holders, (c) increase the number of authorized shares of Preferred Stock, or (d) enter into any agreement with respect to any of the foregoing.

~~Section 5~~. ~~Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation~~”), the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that a holder of Common Stock would receive if the Preferred Stock were fully converted (disregarding for such purposes any conversion limitations hereunder) to Common Stock which amounts shall be paid~~pari passu~~ ~~with all holders of Common Stock. The Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.~~

~~Section 6~~. ~~Conversion~~.

a) ~~Conversions at Option of Holder~~. Each share of Preferred Stock shall be convertible, at any time and from time to time from and after the Original Issue Date at the option of the Holder thereof, into that number of shares of Common Stock (subject to the limitations set forth in Section 6(d)) determined by dividing the Stated Value of such share of Preferred Stock by the Conversion Price. Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as~~Annex A~~ ~~(a “Notice of Conversion~~”). Each Notice of Conversion shall specify the number of shares of Preferred Stock to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the date the applicable Holder delivers by facsimile such Notice of Conversion to the Corporation (such date, the “~~Conversion Date~~”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted, in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.

b) ~~Conversion Price. The conversion price for the Preferred Stock shall equal $[_____], subject to adjustment herein (the “Conversion Price”).~~

c) ~~Mechanics of Conversion~~.

i. ~~Delivery of Conversion Shares Upon Conversion~~. The Corporation shall, as soon as practicable after the Conversion Date (i) issue and deliver to such holder of Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof and a certificate for the number (if any) of the shares of Preferred Stock represented by the surrendered certificate that were not converted into Common Stock and (ii) pay in cash such amount as provided in Section 6(c)(iii) in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion.

~~ii.~~ ~~Reservation of Shares Issuable Upon Conversion~~. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the Contribution Agreement) be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Preferred Stock. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

~~iii.~~ ~~Fractional Shares~~. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.

~~iv.~~ ~~Transfer Taxes and Expenses~~. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

d) ~~Issuance Limitations~~. Notwithstanding anything herein to the contrary, if the Corporation has not obtained Shareholder Approval, then the Corporation may not issue, upon conversion of the Preferred Stock, a number of shares of Common Stock which, when aggregated with any shares of Common Stock issued on or after the Original Issue Date and prior to such Conversion Date (i) to any party under the terms of the Contribution Agreement, (ii) in connection with any conversion of Preferred Stock issued pursuant to the Contribution Agreement, (iii) in connection with the exercise of any Warrants issued pursuant to the Contribution Agreement, (iv) in connection with the conversion of the Payout Notes (as defined in the Contribution Agreement), and (v) in connection with the exercise of any warrants issued to any registered broker-dealer as a fee in connection with the issuance of the Securities pursuant to the Contribution Agreement, would exceed [________]¹ ~~shares of Common Stock (subject to adjustment for forward and reverse stock splits, recapitalizations and the like) (such number of shares, the “Issuable Maximum~~”). Each Holder shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the original Stated Value of such Holder’s Preferred Stock by (y) the aggregate Stated Value of all Preferred Stock issued on the Original Issue Date to all Holders. In addition, each Holder may allocate its pro-rata portion of the Issuable Maximum among Preferred Stock and Warrants held by it in its sole discretion. Such portion shall be adjusted upward ratably in the event a Holder no longer holds any Preferred Stock or Warrants and the amount of shares issued to such Holder pursuant to such Holder’s Preferred Stock and Warrants was less than such Holder’s pro-rata share of the Issuable Maximum. For avoidance of doubt, unless and until any required Shareholder Approval is obtained and effective, warrants issued to any registered broker-dealer as a fee in connection with the Securities issued pursuant to the Contribution Agreement as described in clause (iv) above shall provide that such warrants shall not be allocated any portion of the Issuable Maximum and shall be unexercisable unless and until such Shareholder Approval is obtained and effective.

~~Section 7~~. ~~Certain Adjustments~~.

a) ~~Stock Dividends and Stock Splits~~. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, this Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

b) ~~Subsequent Rights Offerings~~. In addition to any adjustments pursuant to Section 7(a) above, if at any time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “~~Purchase Rights~~”), then the Holder of will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on exercise hereof) immediately before 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.

¹ ~~19.99% of the number of shares of Common Stock outstanding on the Trading Day immediately preceding the date of the Contribution Agreement.~~

c) ~~Pro Rata Distributions~~. During such time as this Preferred Stock is outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to 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) (a “~~Distribution~~”), at any time after the issuance of this Preferred Stock, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete Conversion of this Preferred Stock (without regard to any limitations on Conversion hereof) immediately before the date of which a record is taken for such Distribution, 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 participation in such Distribution.

d) ~~Fundamental Transaction~~. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “~~Fundamental Transaction~~”), then, upon any subsequent conversion of this Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock), the number of shares of Common Stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “~~Alternate Consideration~~”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “~~Successor Entity~~”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents (as defined in the Contribution Agreement) in accordance with the provisions of this Section 7(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Preferred Stock, deliver to the Holder in exchange for this Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Preferred Stock (without regard to any limitations on the conversion of this Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such 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 Designation and the other Transaction Documents (as defined in the Contribution Agreement) referring to the “Corporation” 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 Designation and the other Transaction Documents (as defined in the Contribution Agreement) with the same effect as if such Successor Entity had been named as the Corporation herein.

e) ~~Calculations~~. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.

f) ~~Notice to the Holders~~.

i. ~~Adjustment to Conversion Price~~. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

~~ii.~~ ~~Notice to Allow Conversion by Holder~~. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of this Preferred Stock, and shall cause to be delivered to each Holder at its last address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert the Conversion Amount of this Preferred Stock (or any part hereof) during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

~~Section 8~~. ~~Miscellaneous~~.

a) ~~Notices~~. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: Secretary, facsimile number [________], e-mail address Mpupach@photomedex.com or such other facsimile number, e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 8(a). Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of such Holder appearing on the books of the Corporation, or if no such facsimile number or address appears on the books of the Corporation, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

b) ~~Absolute Obligation~~. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.

c) ~~Lost or Mutilated Preferred Stock Certificate~~. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.

d) ~~Governing Law~~. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (as defined in the Contribution Agreement) (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “~~New York Courts~~”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents (as defined in the Contribution Agreement)), 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 such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation 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 other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

e) ~~Waiver~~. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.

f) ~~Severability~~. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.

g) ~~Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.~~

h) ~~Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.~~

i) ~~Status of Converted or Redeemed Preferred Stock~~. Shares of Preferred Stock may only be issued pursuant to the Contribution Agreement. If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series A Preferred Stock.

~~*********************~~

~~ANNEX A~~

~~NOTICE OF CONVERSION~~

~~(To be Executed by the Registered Holder in order to Convert Shares of Preferred Stock)~~

~~The undersigned hereby elects to convert the number of shares of Series A Convertible Preferred Stock indicated below into shares of common stock, par value $.01 per share (the “Common Stock”), of PhotoMedex, Inc. a Nevada corporation (the “Corporation~~”), according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.

~~Conversion calculations:~~

~~Date to Effect Conversion: ________________________________________________~~

~~Number of shares of Preferred Stock owned prior to Conversion: ___________________~~

~~Number of shares of Preferred Stock to be Converted: ___________________________~~

~~Stated Value of shares of Preferred Stock to be Converted: _______________________~~

~~Number of shares of Common Stock to be Issued: ______________________________~~

~~Applicable Conversion Price:______________________________________________~~

~~Number of shares of Preferred Stock subsequent to Conversion: ___________________~~

~~Address for Delivery: _______________________~~

~~DWAC Instructions:~~

~~Broker no: _________~~

~~Account no: ___________~~

	~~[HOLDER]~~

	~~By:~~
		~~Name:~~
		~~Title:~~

~~Exhibit C~~

~~Lock Up Agreement~~

~~LOCK-UP and resale restriction AGREEMENT~~

~~This lock-up and resale restriction agreement (the “~~~~Agreement~~~~”) is made and entered into the ____ day of ____________, 2017, by and among PhotoMedex, a Nevada corporation (the “~~~~Company~~~~”), First Capital Real Estate Trust Incorporated (“~~~~First Capital~~~~”) and the persons executing this Agreement (each a “~~~~Holder~~~~” and, collectively, the “~~~~Holders~~~~”).~~

RECITALS

A. ~~First Capital, First Capital Real Estate Operating Partnership, L.P.~~On October 12, 2017, the Company issued to Dolev Rafaeli, Dennis M. McGrath and Yoav Ben-Dror (each a “Note Holder” and, collectively the “Note Holders”) Secured Convertible Promissory Notes in the principal amounts of $3,133,934, $977,666 and $1,515,000, respectively (the “~~Contributor~~Notes”). Pursuant to the terms of the Notes, the principal was to convert to shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), at maturity at the lower of (i) the Per Share Price, which equated to a price of $2.5183 or (ii) the volume-weighted average price (“VWAP”) with respect to on-exchange transactions in the Company’s Common Stock executed on The Nasdaq Stock Market (“Nasdaq”) (or such other market on which the Company’s stock may then trade) during the thirty (30) trading days prior to the maturity date, as reported by Bloomberg L.P.; provided, however, that there was a conversion floor of $1.75 per share (the “Floor Price”).

B. On December 22, 2017, the Company and the Note Holders entered into a stock grant agreement (the “Stock Grant Agreement”) to, among other things, cause the early conversion of the Notes into an aggregate of 5,628,291 shares of the Company’s Common Stock (the “Payout Shares”), resulting in a conversion price of $0.9997, which is less than the Floor Price. In addition, pursuant to the Stock Grant Agreement, the Company agreed to (i) issue an additional 1,857,336 shares of Common Stock to the Note Holders as consideration for the various agreements of the Note Holders contained in the Stock Grant Agreement (the “Additional Shares”), including the Note Holders’ agreement to give up their first priority security interest and convert the Notes to equity and (ii) provide the Note Holders with certain cash payments (the “Cash Payments”) in consideration for services to be provided by the Note Holders, in an amount equal to the amount of interest foregone by the Note Holders as a result of the conversion of the Notes.

C. On December 22, 2017, the Company and OFI entered into a Securities Purchase Agreement (the “OFI Purchase Agreement”) pursuant to which OFI may invest up to $15,000,000 in the Company in a series of closings, in exchange for which OFI will receive shares of the Company’s Series B Preferred Stock at a purchase price of $1.00 per share. To date, the Company and OFI completed the three closing under the OFI Purchase Agreement, pursuant to which OFI provided, in the aggregate $3,825,000 to the Company in exchange for an aggregate of 3,825,000 shares of the Company’s Series B Preferred Stock.

D. Pursuant to the terms of the Certificate of Designation for the Series B Preferred Stock (the “Series B Certificate of Designation”), the Series B Preferred Stock, which votes on an as-converted basis, was issued to OFI with a conversion price that constitutes a discount to the market price of the Common Stock at the date of issuance of the Series B Preferred Stock, resulting in the Series B Preferred Stock having a greater voting rights than the existing shares of Common Stock, which violates the Nasdaq Voting Rights rule. On April 20, 2018, the Company and ~~FC Global Realty Operating Partnership, LLC (the “~~~~Acquiror~~~~”) have~~OFI entered into a ~~Contribution~~Supplemental Agreement ~~dated March 31, 2017~~ (the “~~Contribution~~Supplemental Agreement”), pursuant to which ~~the Contributor has~~(i) OFI agreed to ~~contribute~~limit the voting power of the Series B Preferred Stock, to address this violation, and (ii) the parties thereto corrected a violation of the Listing Rules of The Nasdaq Stock Market that require approval from the Company’s stockholders prior to the ~~Acquiror its interests in and to certain entities and real properties in exchange for certain securities~~issuance of Common Stock upon conversion of the ~~Company. Capitalized terms used herein~~Series B Preferred Stock issued under the OFI Purchase Agreement that are in excess of 19.99% of the Company’s issued and ~~not otherwise defined herein shall have~~outstanding Common Stock on the ~~respective meanings set forth~~date of initial issuance of the Series B Preferred Stock to OFI, which resulted from a provision in the ~~Contribution Agreement.~~OFI Purchase Agreement that incorrectly stated that such percentage is to be calculated as of the applicable conversion date of the Series B Preferred Stock instead of the date of initial issuance thereof.

E. The Company was notified by letter from Nasdaq dated April 10, 2018, that it is not in compliance with Nasdaq’s Listing Rule 5550(b)(1), which requires the Company to maintain a minimum of $2.5 million in stockholders’ equity.

B. Each Holder (i) is either an existing stockholder of the Company or, (ii) as a result of one or more of the Closings of the Transactions contemplated in the Contribution Agreement, has acquired securities of the Company.

~~C. As a condition precedent to the Closing, each Holder is required~~F. The parties hereto desire to enter into this Agreement and take all necessary steps contemplated by this Agreement in order to comply with Listing Rule 5550(b)(1) and address the ~~Company~~concerns of the Staff of the Nasdaq regarding the shareholder approval violations described above.

G. FC Global will hold a special meeting of its shareholders (the “Shareholders’ Meeting”) as soon as possible after the date hereof in order to obtain the approval of the FC Global shareholders (the “Shareholder Approval”) of this Agreement and ~~First Capital.~~the transactions contemplated hereby, including, the conversion of the Series C Preferred Stock and the Series D Preferred Stock into Common Stock.

AGREEMENT

NOW, THEREFORE,~~, for good and valuable~~ in consideration of the ~~receipt and sufficiency of which is hereby acknowledged,~~mutual promises herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

1. ~~Restrictions on Transfer~~Unwinding of Transactions with the Note Holders. ~~No Holder shall, directly or indirectly, prior~~The Company and the Note Holders hereby agree to the ~~termination~~following:

(a) Termination of ~~this Agreement:~~ the Stock Grant Agreement. Upon execution of the Agreement, the Stock Grant Agreement will automatically terminate and will be of no further force or effect and no party shall have any liability to any other party arising thereunder.

(b) Cancellation of the Payout Shares.

(i) ~~transfer, assign, sell, lend, sell short, gift-over, pledge, encumber, hypothecate, exchange~~Each of the Note Holders hereby agrees to surrender to the Company the Payout Shares issued to it under the Stock Grant Agreement free and clear of all claims, charges, liens, contracts, rights, options, security interests, mortgages, encumbrances and restrictions of every kind and nature, in each case, to the extent incurred by each of the Note Holders or ~~otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution), or offer or solicit to do~~ any of ~~the foregoing, of any or all~~its assignees (collectively, “Claims”) for cancellation concurrently with, and against delivery of, the ~~equity securities and/or~~issuance of Series C Preferred Stock pursuant to Section 1(c) hereof (it being acknowledged that any ~~debt or similar securities that are convertible into equity securities~~rights of the Company ~~held by him, her~~to or it, including any additional equity securities and/or any debt or similar securities that are convertible into equity securities of the Company which Holder may subsequently acquire, including all additional equity securities which may be issued to Holder upon the exercise of any options, warrants or other securities convertible into or exchangeable for securities of the Company (all such securities of such Holder, “~~Subject Securities~~~~”) or any right or interest therein, or consent~~with respect to any of the ~~foregoing (any~~Payout Shares other than under this Agreement shall not be a Claim). After such ~~action, a “~~~~Transfer~~~~”), (ii) enter~~cancellation and receipt of the Series C Preferred Stock by each of the Note Holders or ~~offer to enter into any derivative arrangement~~its assignees, each of the Note Holders acknowledges and agrees that all such Payout Shares shall no longer be outstanding, and each of the Note Holders shall have no further rights with respect to the Payout Shares or ~~create~~the equity ownership in the Company represented thereby.

(ii) Each of the Note Holders hereby represents and warrants that such Note Holder owns the Payout Shares issued to it under the Stock Grant Agreement beneficially and of record, free and clear of all Claims other than Claims in favor of the Company or ~~suffer~~any assignee of the Company under this Agreement or otherwise. Each Note Holder has never transferred or agreed to ~~exist~~transfer its Payout Shares, other than pursuant to this Agreement. There is no restriction affecting the ability of each Note Holder to transfer the legal and beneficial title and ownership of its Payout Shares to the Company for cancellation other than restrictions, if any, ~~liens~~in favor of the Company or ~~encumbrances~~any assignee of the Company. Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the performance of this Agreement in compliance with its terms and conditions by each Note Holder will conflict with or result in any violation of any agreement, judgment, decree, order, statute or regulation applicable to such Note Holder, or any breach of any agreement to which such Note Holder is a party, or constitute a default thereunder, or result in the creation of any Claim of any kind or nature on, or with respect to the such Note Holder or its assets.

(iii) At the request of the Company and without further consideration, each Note Holder will execute and deliver such other instruments of sale, transfer, conveyance, assignment and confirmation as may be reasonably requested in order to effectively transfer, convey and assign to the Company for cancellation its Payout Shares.

(c) Issuance of Series C Preferred Stock. Upon the execution of this Agreement, the Company shall issue to the Note Holders, in the aggregate, a total of 7,485,627 shares of newly-designated Series C Preferred Stock in such amounts as set forth inExhibit A hereto (the “Series C Shares”). The Series C Preferred Stock has the rights, preferences, and limitations specified in the Certificate of Designation of the Series C Preferred Stock in the form attached hereto asExhibit B. The Series C Preferred Stock will automatically convert into 7,485,627 shares of the Company’s Common Stock upon Shareholder Approval being obtained.

(d) Resignations of Dr. Dolev Rafaeli and Mr. Dennis McGrath. Section 5 of the Stock Grant Agreement provided for the resignations of Dr. Dolev Rafaeli and Mr. Dennis McGrath effective upon certain events as described therein. Notwithstanding the termination of the Stock Grant Agreement as provided for in Section 1(a) above, Dr. Dolev Rafaeli and Mr. Dennis McGrath agree that such resignation will survive the termination of the Stock Grant Agreement, but become effective upon the last to occur of (i) receipt of all of the shares of Common Stock underlying the Series C Shares and (ii) the date that the shares of Common Stock underlying the Series C Shares are registered for re-sale in accordance with the Registration Rights Agreement (as defined below). Dr. Dolev Rafaeli and Dennis McGrath hereby represent and warrant to the Company that their resignation is not the result of any disagreement that either of them has with the Company or the Board of Directors regarding the Company’s financial or accounting policies or operations.

2. Unwinding of Transactions with OFI. The Company and OFI hereby agree to the following:

(a) Termination of the OFI Purchase Agreement and the Supplemental Agreement.

(i) Subject to Section 2(a)(ii) below, upon execution of the Agreement, the OFI Purchase Agreement will automatically terminate and will be of no further force or effect, including, without limitation, OFI’s option under the OFI Purchase Agreement to purchase additional shares of Series B Preferred Stock and no party shall have any liability to any other party arising thereunder.

(ii) Notwithstanding Section 2(a)(i) above, the representations and warranties (the “Reps and Warranties”) contained in Article 3 of the OFI Purchase Agreement and the indemnification provisions contained in Article 6 of the OFI Purchase Agreement, are hereby incorporated by reference into this Agreement as if set forth in full herein. The Reps and Warranties are being made as of the date hereof and subject to the exceptions to such Reps and Warranties set forth on a disclosure schedule to be provided by the Company.

(iii) Upon execution of the Agreement, the Supplement Agreement will automatically terminate and will be of no further force or effect and no party shall have any liability to any other party arising thereunder.

(b) Cancellation of the Series B Stock.

(i) OFI hereby agrees to surrender to the Company the Series B Preferred Stock issued to OFI under the OFI Purchase Agreement free and clear of all Claims for cancellation concurrently with, and against delivery of, the issuance of Series D Preferred Stock pursuant to Section 2(c) hereof (it being acknowledged that any rights of the Company to or with respect to any ~~or all~~ of the ~~Subject Securities or any right or interest therein, in either case that would reasonably~~Series B Preferred Stock other than under this Agreement shall not be ~~expected to prevent or delay~~a Claim). After such ~~Holder’s compliance with his, her~~cancellation and receipt of the Series D Preferred Stock by OFI or its ~~obligations hereunder; or (iii) enter of offer to enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer.~~

2. ~~Stop Transfer Orders~~.~~Each Holder hereby~~assignees, OFI acknowledges and agrees that all such Series B Preferred Stock shall no longer be outstanding, and OFI shall have no further rights with respect to the Series B Preferred Stock or the equity ownership in the Company represented thereby.

(ii) OFI hereby represents and warrants that OFI owns the Series B Preferred Stock beneficially and of record, free and clear of all Claims other than Claims in favor of the Company or any assignee of the Company under this Agreement or otherwise. OFI has never transferred or agreed to transfer the Series B Preferred Stock, other than pursuant to this Agreement. There is no restriction affecting the ability of OFI to transfer the legal and beneficial title and ownership of the Series B Preferred Stock to the Company for cancellation other than restrictions, if any, in favor of the Company or any assignee of the Company. Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the performance of this Agreement in compliance with its terms and conditions by OFI will conflict with or result in any violation of any agreement, judgment, decree, order, statute or regulation applicable to OFI, or any breach of any agreement to which OFI is a party, or constitute a default thereunder, or result in the creation of any Claim of any kind or nature on, or with respect to OFI or its assets.

(iii) At the request of the Company and without further consideration, OFI will execute and deliver such other instruments of sale, transfer, conveyance, assignment and confirmation as may be reasonably requested in order to effectively transfer, convey and assign to the Company for cancellation the Series B Preferred Stock.

(c) Issuance of Series D Preferred Stock. On the date hereof, the Company shall ~~be entitled, during~~issue to OFI a total of 6,217,490 shares of newly-designated Series D Preferred Stock. The Series D Preferred Stock has the ~~term~~rights, preferences, and limitations specified in the Certificate of this Agreement, to cause any transfer agent for the Subject Securities to decline to effect any Transfer and to note stop transfer restrictions on the stock register and other records relating to Subject Securities, and each Holder agrees to execute and deliver any further documents reasonably requested by the Company in furtheranceDesignation of the ~~same.~~Series D Preferred Stock in the form attached hereto asExhibit C. The Series D Preferred Stock will automatically convert into shares of the Company’s Common Stock upon Shareholder Approval being obtained.

3. (d) ~~Permitted Transfers~~~~. Notwithstanding the foregoing, the restrictions set forth herein shall not apply to the following Transfers of Subject Securities by a Holder:~~

a. if such Holder is an individual (A) for nominal consideration or as a gift to any member of such Holder’s “immediate family” (defined for purposes of this Agreement as the spouse, parents, lineal descendants, the spouse of any lineal descendant,Purchase and brothers and sisters) or a trust for the benefit of such Holder or any member of such Holder’s immediate family, or (B) upon the death of such Holder pursuant to a will or other instrument taking effect upon the death of such Holder, or pursuant to the applicable laws of descent and distribution to such Holder’s estate, heirs or distributees; and

~~b. if the Holder is a corporation, partnership, limited liability company or other entity, any Transfer to an Affiliate~~Sale of the ~~Holder if such Transfer is not for value;~~

~~provided, however, that in the case of any Transfer described in clauses (a) or (b) above, it shall be a condition~~Additional Series D Preferred Stock. Subject to the Transfer that (x) the transferee executes and delivers to the Company, not later than one business day prior to such Transfer, a written agreement that is reasonably satisfactory in form and substance to the Company to be bound by all of the terms of this Agreement and the Contribution Agreement (any references to immediate family in the agreement executed by such transferee shall expressly refer only to the immediate family of the Holder and not to the immediate family of the transferee) and (y) if the Holder is required to file a report under Section 16(a) of the Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial ownership of the Subject Securities or any securities convertible into or exercisable or exchangeable for the Subject Securities, the Holder shall include a statement in such report to the effect that, in the case of any Transfer pursuant to (i) above, such Transfer is being made as a gift or by will or intestate succession or, in the case of any Transfer pursuant to (ii) above, such Transfer is being made to a shareholder, partner or member of, or owner of a similar equity interest in, the Holder and is not a Transfer for value.

~~c. For purposes hereof, “~~~~Affiliate~~~~” shall mean, with respect to any entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such entity. For purposes hereof, “~~~~control~~” (including the terms “controlled by” and “under common control with”), as used with respect to any entity or person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity or person, whether through the ownership of voting securities or otherwise.

4. ~~Transfers in Violation Void~~~~. Any attempted sale, transfer or other disposition in violation of this Agreement shall be null and void.~~

5. ~~Binding Effect; Waiver~~. ~~This Agreement shall be binding upon the Holder, its agents, heirs, successors, assigns and beneficiaries. Any waiver by the Company of any of~~ the terms and conditions of this Agreement, on the last day of each month, commencing on September 30, 2018, OFI shall purchase from the Company $100,000 of shares of Series D Preferred Stock for a purchase price of $0.65 per share. OFI shall continue to purchase $100,000 of shares, at a purchase price of $0.65 per share, each month until it has purchased an aggregate of $500,000 of shares of Series D Preferred Stock (not including the shares issued pursuant to Section 2(c) above) (collectively, the “Series D Shares”); provided that, upon closing of any material business combination involving the Company that is approved by OFI, OFI shall purchase an additional $1,500,000 of shares of Series D Preferred Stock at a purchase price of $0.65. Notwithstanding the foregoing, from and after the date that Shareholder Approval has been obtained, instead of purchasing Series D Shares for $0.65 per share pursuant to this Section 2(d), OFI shall be required to purchase shares of Common Stock at a price of $0.65 per share. Each purchase and sale of Series D Shares, or shares of Common Stock, as applicable, contemplated by this Section 2(d) (each, a “Closing”) shall be subject to the following conditions:

(i) The representations and warranties of OFI contained in this Agreement shall be true and correct as of the date when made and as of the Closing as though made on and as of such date.

(ii) OFI shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing.

(iii) The representations and warranties of the Company contained in this Agreement and the Reps and Warranties incorporated by reference herein pursuant to Section 2(a)(ii) shall be true and correct as of the date when made and as of the Closing as though made on and as of such date.

(iv) The Company shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing.

(v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any ~~instance must~~court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement.

(vi) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably could have or result in a Material Adverse Effect (as defined in the OFI Purchase Agreement) or a material adverse change with respect to the Company or its subsidiaries.

(vii) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Series D Shares or shares of Common Stock, as applicable, all of which shall be in full force and effect.

(viii) At each Closing, the Company shall have delivered (A) a stock certificate for the requisite number of Series D Shares or shares of Common Stock, as applicable, to be delivered to OFI at such Closing and (B) a certificate executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the applicable Closing, certifying to the fulfillment of the conditions specified in Sections 2(d)(iii) to 2(d)(vii).

(ix) At each Closing, OFI shall have delivered payment for the requisite number of Series D Shares or shares of Common Stock, as applicable, in United States dollars and in immediately available funds, by wire transfer to the account designated in writing by the Company for such purpose.

3. Termination of Additional Agreements.

(a) Termination of Voting Agreement. Upon the execution of the Agreement, the Shareholder Voting Support and ~~must~~Confidentiality Agreement, dated as of December 22, 2017 (and any amendments thereto), by and among the Note Holders and the Securityholders (as defined therein) will automatically terminate and will be ~~duly executed~~of no further force or effect and no party shall have any liability to any other party arising thereunder.

(b) Termination of Voting Agreement. Upon execution of the Agreement, the Shareholder Voting Support and Confidentiality Agreement, dated as of December 22, 2017 (and any amendments thereto), by and among OFI and the Securityholders (as defined therein) will automatically terminate and will be of no further force or effect and no party shall have any liability to any other party arising thereunder.

(c) Exchange and Cancellation Agreement. Upon execution of the Agreement, the Exchange and Cancellation Agreement, dated as of April 20, 2018 (and any amendments thereto), by and among the Company and OFI will automatically terminate and will be of no further force or effect and no party shall have any liability to any other party arising thereunder.

(d) Registration Rights Agreements. Upon the execution of the Agreement, (i) the Registration Rights Agreement, dated as of December 22, 2017 (and any amendments thereto) by and between the Company and OFI and (ii) the Registration Rights Agreement, dated as of December 22, 2017 (and any amendments thereto) by and between the Company and the ~~Holder~~Note Holders will each automatically terminate and will be of no further force and effect and no party shall ~~not be deemed or construed~~have any liability to ~~be a waiver of such term or condition for the future, or of~~ any ~~subsequent breach thereof.~~other party arising thereunder.

6. 4. ~~Termination~~Services Agreements. ~~This~~Concurrent with the entry into this Agreement, ~~and all rights and obligations~~the Company is entering into a services agreement with each of the ~~parties hereunder, shall terminate~~Note Holders on the ~~first anniversary~~terms specified therein, pursuant to which the support services previously provided by each of the ~~Approval Date or sooner upon~~Note Holders under the ~~consent~~Stock Grant Agreement will continue in exchange for cash compensation from the Company as specified in such agreements; provided, however, that such cash payments will be directly tied to the nature and amount of the ~~Company~~services being provided by the Note Holders, and ~~First Capital.~~provided further, that such services agreements will be approved by the non-interested members of the Company’s board of directors.

7. 5. ~~Miscellaneous~~Registration Rights Agreement. ~~Facsimile~~Upon execution ~~and delivery~~ of this Agreement, ~~is legal, valid~~the Company will enter into a registration rights agreement with the Note Holders and ~~binding execution and delivery for all purposes. This Agreement~~OFI in the form attached hereto asExhibit D.

6. Shareholder Approval.

(a) Proxy Statement.

(i) The Company shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns. This Agreement (including the documents referred to herein) constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relatedprepare in ~~any way to the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one~~consultation with OFI and the ~~same instrument. The Section headings contained in this Agreement are inserted for convenience only~~Note Holders, and ~~shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be governed by and construed in accordance~~file with the ~~laws of~~Securities and Exchange Commission (the “SEC”) a preliminary proxy statement relating to (i) the State of New York without regard to principles of conflicts of laws. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. Each of the parties will bear his or its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated ~~hereby. Each arty acknowledges~~thereby and ~~agrees that the other party would be damaged irreparably in the event any~~(ii) conversion of the ~~provisions~~Series C Preferred Stock and the Series D Preferred Stock (a “Proxy Statement”) promptly after the date of this Agreement ~~are not performed~~(and in ~~accordance with their specific terms or otherwise are breached. Accordingly, each party agrees that~~no event later than thirty (30) days after the ~~other party shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement~~date hereof) and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the Parties and the matter, in addition to any other remedy to which they may be entitled, at law or in equity.use its reasonable best efforts to:

~~[Signature page follows]~~

~~IN WITNESS WHEREOF~~,(A) obtain and furnish the ~~undersigned have duly executed and delivered this Agreement as of~~information required to be included by the ~~day and year first above written.~~

~~Photomedex, Inc~~.

~~By:~~
~~Name:~~
~~Title:~~

~~First Capital Real Estate Trust Incorporated~~

~~By:~~
~~Name:~~
~~Title:~~

~~HOLDERS:~~


~~Lewis C. Pell~~


~~Yoav Ben-Dror~~


~~Dolev Rafaeli~~


~~Dennis M. McGrath~~


~~Katsumi Oneda~~


~~Stephen P. Connelly~~

~~First Capital Real Estate Investments LLC~~

~~By:~~
~~Name:~~
~~Title:~~

~~FC Borrower LLC~~

~~By:~~
~~Name:~~
~~Title:~~

~~Exhibit D~~SEC in the preliminary Proxy Statement;

~~Registration Rights Agreement~~

~~REGISTRATION RIGHTS AGREEMENT~~

~~This Registration Rights Agreement (this “Agreement”) is~~(B) respond promptly to any comments made ~~and entered into as of _____________, 2017, between PhotoMedex, Inc., a Nevada corporation (the “Company”), and each of~~by the ~~several parties signatory hereto that will become holders of the registration rights granted hereunder (each such holder, a “Holder” and, collectively, the “Holders”).~~

~~This Agreement is made pursuant to the Contribution Agreement, dated as of March 31, 2017, among the Company, First Capital Real Estate Trust Incorporated (“FCREIT”), First Capital Real Estate Operating Partnership, L.P., FC Global Realty Operating Partnership, LLC, and each Holder (the “Contribution Agreement”).~~

~~The Company and each Holder hereby agrees as follows:~~

1. ~~Definitions~~. Capitalized terms used and not otherwise defined herein that are defined in the Contribution Agreement shall have the meanings given such terms in the Contribution Agreement. As used in this Agreement, the following terms shall have the following meanings:

“~~Advice” shall have the meaning set forth in Section 6(d).~~

“~~Effectiveness Date” means,~~SEC or its staff with respect to the ~~Initial Registration Statement required to be filed hereunder, the 120~~^th ~~calendar day following the date hereof (or, in the event of a “full review” by the Commission, the 150~~^th ~~calendar day following the date hereof) and with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the 120~~^th ~~calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 150~~^th ~~calendar day following the date such additional Registration Statement is required to be filed hereunder);provided~~,~~however~~, that in the event the Company is notified by the Commission that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day.

“~~Effectiveness Period” shall have the meaning set forth in Section 2(a).~~

“~~Event” shall have the meaning set forth in Section 2(d).~~

“~~Event Date” shall have the meaning set forth in Section 2(d).~~

“~~Filing Date~~” means, with respect to the Initial Registration Statement required hereunder, the 60th calendar day following the date hereof and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable Securities.

“~~Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.~~

“~~Indemnified Party” shall have the meaning set forth in Section 5(c).~~preliminary Proxy Statement;

“~~Indemnifying Party” shall have the meaning set forth in Section 5(c).~~

“~~Initial Registration~~(C) cause a definitive Proxy Statement~~” means the initial Registration Statement filed pursuant to this Agreement.~~

“~~Losses” shall have the meaning set forth in Section 5(a).~~

“~~Plan of Distribution” shall have the meaning set forth in Section 2(a).~~

“~~Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes~~ (together with any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements ~~to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed~~thereto) to be ~~incorporated by reference in such Prospectus.~~

“~~Registrable Securities” means, as of any date of determination, (a) all Transaction Shares, including, without limitation, any Transaction Shares that the Contributor Parties instruct the Acquiror Parent~~mailed to deliver to Maxim Group LLC instead of to the Contributor Parties, (b) all Warrant Shares, and (c) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing;~~provided, however~~, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (a) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (b) such Registrable Securities have been previously sold in accordance with Rule 144, or (c) such securities become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders, as reasonably determined by the Company, upon the advice of counsel to the Company.

“~~Registration Statement~~” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.

“~~Rule 415~~” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

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

“~~Selling Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).~~

“~~SEC Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission staff and (ii) the Securities Act.~~

“~~Warrant Shares~~” means all shares of Acquiror Parent Common Stock issuable upon exercise of the Warrants (assuming on such date the Warrants are exercised in full without regard to any exercise limitations therein) held by the Holders.

2. ~~Shelf Registration~~.

(a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all or such maximum portion of the Registrable Securities as permitted by SEC Guidance (provided that, the Company shall use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.29) that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on S-3, as appropriate (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(d)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “~~Plan of Distribution” attached hereto asAnnex A~~ ~~and substantially the “Selling Stockholder” section attached hereto asAnnex B. Subject to the terms of this Agreement, the Company shall use~~ its best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) (A) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and (B) (I) may be sold without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 or (II) the Company is in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “~~Effectiveness Period~~”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. Eastern Time on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 5:00 p.m. Eastern Time on the second Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).

(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(d)), with respect to filing on Form S-3 or other appropriate form;~~provided~~,~~however~~, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.

~~(c)~~ Notwithstanding any other provision of this Agreement, if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), the number of Registrable Securities and other shares of the Company’s Common Stock to be registered on such Registration Statement, including the shares issuable upon conversion of the Payout Notes (the “Other Shares”) will be reduced on a pro rata basis based upon the number of Registrable Securities or Other Shares held by the Holders or the holders of the Other Shares. In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.

(d) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3shareholders as soon as ~~such form is available, provided that~~reasonably practicable containing all information required under applicable law to be furnished to the ~~Company shall maintain the effectiveness of the Registration Statement then~~Company’s shareholders in ~~effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.~~

3. ~~Registration Procedures. In~~ connection with the ~~Company’s registration obligations hereunder,~~matters to be approved by the Company shall: Not less than five (5) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior to the filing of any related Prospectus or any amendmentshareholders;

(D) promptly amend or supplement ~~thereto (including~~ any ~~document that would be incorporated or deemed to be incorporated therein~~information provided by reference), the Company shall (i) furnish to FCREIT copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of FCREIT, and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall be necessary,it for use in the ~~reasonable opinion of respective counsel to FCREIT, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration~~preliminary or definitive Proxy Statement ~~or any such Prospectus or~~(including any amendments or supplements thereto to which FCREIT shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than five (5) Trading Days after FCREIT has been so furnished copies of a Registration Statement or one (1) Trading Day after FCREIT have been so furnished copies of any related Prospectus or amendments or supplements thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as~~Annex B~~ ~~(a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the Filing Date or by the end of the fourth (4~~^th~~) Trading Day following the date on which such Holder receives draft materials in accordance with this Section.~~

(a) (i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto and provide as promptly as reasonably possible to FCREIT true and complete copies of all correspondence fromthereof) if and to the ~~Commission relating~~extent that it shall have become false or misleading in any material respect and take all steps necessary to ~~a Registration Statement (provided that,~~cause the Company may excise any information contained therein which would constitute material non-public information as to FCREIT if it has not executed a confidentiality agreement with respect thereto with the Company or its Subsidiaries), and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such RegistrationProxy Statement as so amended or ~~in such Prospectus as so supplemented.~~

(b) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.

(c) Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposedsupplemented to be filed ~~(B) when~~with the ~~Commission notifies~~SEC and to be disseminated to the ~~Company whether there will be a “review”~~Company’s shareholders, in each case as and to the extent required by applicable United States federal securities laws; and

(E) cause the preliminary and definitive Proxy Statements, on each relevant filing date, on the date of ~~such Registration Statement~~mailing to the Company’s shareholders and ~~whenever~~at the Commission comments in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information, (iii)time of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose, (iv) of the receipt by the Company of any notification with respectShareholders’ Meeting, not to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they ~~were~~are made, not misleading, and ~~(vi)~~cause the Proxy Statement to comply as to form in all material respects with the provisions of the ~~occurrence or existence~~Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder.

(b) Meeting of Company Shareholders. The Company shall take all action reasonably necessary in accordance with Nevada law and the Company’s articles of incorporation and bylaws to establish a record date, duly call, give notice of, convene and hold the Shareholders’ Meeting reasonably promptly after the date of any ~~pending corporate development with respect~~SEC comments on the Proxy Statement have been resolved and the final Proxy Statement is otherwise ready for dispatch and, in connection therewith, the Company shall mail the Proxy Statement to the Company’s shareholders in advance of such meeting. The Proxy Statement shall include the board recommendation of the Company that shareholders approve the proposals coming before them at the Shareholders’ Meeting, and the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that, any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, that notwithstanding each Holder’s agreement to keep such information confidential, each such Holder makes no acknowledgement that any such information constitutes material, non-public information.

~~(d) Use its~~will use reasonable best efforts to ~~avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension~~solicit from its shareholders proxies in favor of the ~~qualification (or exemption from qualification)~~adoption of ~~any~~proposals coming before the Shareholders’ Meeting and to take all other actions necessary or advisable to pursue the vote or consent of its shareholders, including such actions as are required by the rules and regulations of the ~~Registrable Securities for sale in~~Nadaq or Nevada law or any ~~jurisdiction, at the earliest practicable moment.~~

~~(e) Furnish~~other applicable laws to ~~each Holder, without charge, at least one conformed copy of each~~obtain such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the EDGAR system (or successor thereto) need not be furnished in physical form.

~~(f) Subject to the terms of~~approvals. Unless this Agreement the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).

(g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resaleis terminated by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that,parties hereto, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.

(h) If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Contribution Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request.

(i) Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.~~If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the~~ use ~~of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its~~reasonable best efforts to ensure that ~~the use of the Prospectus may be resumed as promptly as~~any Shareholders’ Meeting (including any adjournment or postponement thereof) is ~~practicable. The Company shall be entitled to exercise its right under this Section 3(j) to suspend the availability of a Registration Statement~~called, noticed, convened, held and ~~Prospectus for a period not to exceed 60 calendar days (which need not be consecutive days) in any 12-month period~~.

~~(j) Otherwise use commercially reasonable efforts to comply with~~conducted, and that all applicable rules and regulations of the Commission under the Securities Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holders are required to deliver a Prospectusproxies solicited by it in connection with the Shareholders’ Meeting (including any ~~disposition~~adjournment or postponement thereof) are solicited, in compliance with Nevada law, the Company’s articles of ~~Registrable Securities~~incorporation and ~~take such other actions as may be reasonably necessary to facilitate~~bylaws, the ~~registration~~rules of the ~~Registrable Securities hereunder.~~

~~(k) The Company shall use its best efforts to maintain eligibility for use of Form S-3 (or any successor form thereto) for the registration of the resale of Registrable Securities.~~

~~(l) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder~~Nasdaq and ~~if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares.~~all other applicable laws.

4. 7. ~~Registration Expenses~~Representations and Warranties of the parties. ~~All fees~~Each party to this Agreement represents and ~~expenses incident~~warrants to the ~~performance of or compliance with,~~other parties to this Agreement as follows:

(a) If such party is an entity, it is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, as applicable, and has the requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement.

(b) The execution, delivery and performance by such party and the consummation by such party of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such party and no other action is necessary on the part of such party to authorize this Agreement or to consummate the transactions contemplated hereby.

(c) This Agreement has been duly executed and delivered by such party and, assuming the due authorization, execution and delivery by the ~~Company shall be borne~~other parties, constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to creditors’ rights generally and (ii) general principles of equity, whether such enforceability is considered in a proceeding in equity or at law.

(d) Neither the ~~Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees~~execution and ~~expenses referred to in~~ the ~~foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses~~delivery of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission, (B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection withthis Agreement, nor the consummation of the transactions contemplated hereby, will conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which the party making representations hereunder is a party or by ~~this Agreement. In addition, the Company shall be responsible for all~~which it is bound or to which any of its ~~internal expenses incurred~~assets is subject.

(e) The execution and delivery of this Agreement by such party does not, and the performance of this Agreement by such party will not, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental entity.

8. Further Action. Subject to the terms and conditions of this Agreement, each of the parties will take all such reasonable and lawful action as may be necessary or appropriate in ~~connection with the consummation of~~order to effectuate the transactions contemplated by this Agreement ~~(including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties),~~ the ~~expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange~~agreements attached hereto as required hereunder. In no event shall the Company be responsible for any broker or similar commissions of any Holder or, except to the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders.exhibits as promptly as practicable.

5. 9. ~~Indemnification~~Governing Law; Miscellaneous.

(a) ~~Indemnification by~~Governing Law; Dispute Resolution. In the ~~Company~~. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a resultevent of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “~~Losses~~”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose) or (ii) receipt of written notice from the Company in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(d). The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall survive the transfer of any Registrable Securities bydispute between any of the ~~Holders~~parties arising under or relating in any way whatsoever to this Agreement, the disputing parties shall attempt to resolve it through good faith negotiation. If the dispute is not resolved through such negotiation, then the disputing parties shall attempt to resolve it through mediation in the State of New York, USA, with a neutral, third-party mediator mutually agreed upon by the disputing parties. Unless otherwise agreed by the disputing parties, the costs of mediation shall be shared equally. If the dispute is not resolved through mediation, then upon written demand by one of the disputing parties it shall be referred to a mutually agreeable arbitrator. The arbitration process shall be conducted in accordance with ~~Section 6(h).~~the laws of the United States of America and the State of New York, except as modified herein. Venue for the arbitration hearing shall be the State of New York, USA. All remedies, legal and equitable, available in court shall also be available in arbitration. The arbitrator’s decision shall be final and binding, and judgment may be entered thereon in a court of competent jurisdiction. This Agreement shall be interpreted and enforced in accordance with the laws of the United States of America and the State of New York, without regard to conflict of law principles thereof.

(b) ~~Indemnification by Holders~~Counterparts. ~~Each Holder~~This Agreement may be executed in two or more counterparts, each of which shall ~~severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning~~be deemed an original, but all of ~~Section 15 of the Securities Act and Section 20 of the Exchange Act),~~which together shall constitute one and the ~~directors, officers, agents~~same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or ~~employees~~any electronic signature complying with the U.S. federal ESIGN Act of ~~such controlling Persons,~~2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

(c) Headings; Interpretation. The headings of this Agreement are for convenience of reference and shall not form a part of, or affect the interpretation of, this Agreement. As used herein, unless the context clearly requires otherwise, the words “herein,” “hereunder” and “hereby” shall refer to the ~~fullest extent permitted by applicable law, from~~entire Agreement and against all Losses, as incurred, to the extent arising out of or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of the Securities Act or (y) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not ~~misleading (i) to the extent, but~~ only to the ~~extent, that~~Section or paragraph in which such ~~untrue statement~~word appears. If any date specified herein falls upon a Saturday, Sunday or omission is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such Prospectus, (ii) to the extent, but only to the extent, that such information relates to such Holder’s information providedlegal holiday in the ~~Selling Stockholder Questionnaire~~state of Nevada, the date shall be construed to mean the next business day following such Saturday, Sunday or ~~the proposed method~~legal holiday. For purposes of ~~distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in~~this Agreement, a ~~Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus~~“business day” is any day other than a Saturday, Sunday or ~~in any amendment or supplement thereto, or (iii)~~legal holiday in the ~~case~~state of ~~an occurrence~~New York. Each Party intends that this Agreement be deemed and construed to have been jointly prepared by the parties. As a result, the parties agree that any uncertainty or ambiguity existing herein shall not be interpreted against any of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(d). In no event shall the liability of a selling Holder be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement or omission) received by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification obligation.them.

~~(c)~~(d) ~~Conduct of Indemnification Proceedings~~Severability. If any ~~Proceeding~~provision of this Agreement shall be ~~brought~~invalid or ~~asserted against~~unenforceable in any ~~Person entitled~~jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.

(e) Entire Agreement; Amendments. This Agreement and the exhibits, schedules and other appendices hereto contain the entire understanding of the parties with respect to ~~indemnity~~the matters covered herein and supersede all prior agreements, negotiations and understandings, written or oral, with respect to such subject matter, including, without limitation, the agreements being terminated hereby. Except as specifically set forth herein, none of the parties makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement shall be waived or amended other than by an instrument in writing signed by each of the parties hereto. No delay or omission of any party hereto in exercising any right or remedy hereunder ~~(an “Indemnified Party”),~~shall constitute a waiver of such ~~Indemnified Party~~right or remedy, and no waiver as to any obligation shall ~~promptly notify~~operate as a continuing waiver or as a waiver of any subsequent breach.

(f) Reliance. The parties acknowledge and represent that: (i) they have read the ~~Person from whom indemnity is sought (the “~~Agreement; (ii) they clearly understand the Agreement and each of its terms; (iii) they fully and unconditionally consent to the terms of this Agreement; (iv) they have had the benefit and advice of counsel of their own selection; (v) they have executed this Agreement, freely, with knowledge, and without influence or duress; (vi) they have not relied upon any other representations, either written or oral, express or implied, made to them by any person; and (vii) the consideration received by them has been actual and adequate.

(g) ~~Indemnifying Party~~Notices”). Any notices required or permitted to be given under the terms of this Agreement shall be in writing and sent by U. S. Mail or delivered personally or by overnight courier or via facsimile or e-mail (if via facsimile or e-mail, to be followed within one (1) business day by an original of the ~~Indemnifying Party~~notice document via overnight courier) and shall ~~have~~be effective (i) five (5) business days after being placed in the ~~right~~mail, if sent by registered mail, return receipt requested, (ii) upon receipt, if delivered personally, (iii) upon delivery by facsimile or e-mail (if received between 8:00 a.m. and 5:00 p.m. ET; otherwise delivery shall be considered effective the following business day) or (iv) one (1) business day after delivery to ~~assume the defense thereof, including the employment of counsel reasonably satisfactory~~a courier service for overnight delivery, in each case properly addressed to the ~~Indemnified Party and~~party to receive the ~~payment of all fees and expenses incurred in connection with defense thereof; provided, that,~~same. The addresses for such communications shall be as specified on the ~~failure~~signature page hereto. Each party shall provide written notice to the other parties of any ~~Indemnified Party to give such notice~~change in address.

(h) Successors and Assigns. This Agreement shall ~~not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only)~~be binding upon and inure to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expensebenefit of the ~~Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof~~parties and ~~the reasonable fees~~their respective successors and ~~expenses of~~permitted assigns;provided,however, that no ~~more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without~~party may assign its ~~written consent, which consent shall not be unreasonably withheld~~rights hereunder or ~~delayed. No Indemnifying Party shall,~~delegate its duties hereunder without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.other parties hereto.

~~Subject to~~(i) No Third Party Beneficiaries. This Agreement is intended for the ~~terms~~benefit of the parties hereto and their respective successors and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other individual or entity.

(j) Remedies. No provision of this Agreement ~~all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses~~providing for any specific remedy to ~~the extent incurred in connection with investigating or preparing to defend such Proceeding in~~ a ~~manner not inconsistent with this Section)~~party shall be ~~paid~~construed to ~~the Indemnified Party, as incurred, within ten Trading Days of written notice thereof~~limit such party to ~~the Indemnifying Party; provided,~~ that ~~the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees~~specific remedy, and ~~expenses applicable to such actions for which such Indemnified Party is determined by a court of competent jurisdiction not to be entitled to indemnification hereunder.~~

~~(d)~~ ~~Contribution~~. If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other ~~relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall~~remedy that would otherwise be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party at law or in ~~accordance with its terms.~~

equity shall also be available. The parties ~~hereto agree~~also intend that ~~it would~~the rights and remedies hereunder be cumulative, so that exercise of any one or more of such rights or remedies shall not ~~be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation~~preclude the later or byconcurrent exercise of any other ~~method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph.~~rights or remedies. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.

~~The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.~~

6. ~~Miscellaneous~~.

~~(a)~~ ~~Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the Company, as the case may be, in~~ addition to being entitled to exercise all rights provided herein or granted by law, ~~and under this Agreement,~~ including recovery of damages, ~~shall~~each of the parties will be entitled to specific performance ~~of its rights~~ under this Agreement. ~~Each of the Company and each Holder agrees~~The parties agree that monetary damages ~~would~~may not ~~provide~~be adequate compensation for any ~~losses~~loss incurred by reason of aany breach ~~by it~~ of ~~any of~~obligations described in the ~~provisions of this Agreement~~foregoing sentence and hereby ~~further agrees that,~~agree to waive in ~~the event of~~ any action for specific performance ~~in respect~~ of any such ~~breach, it shall not assert or shall waive~~obligation the defense that a remedy at law would be adequate.

~~(b)~~ ~~No Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Except for the Other Shares and those securities set forth onSchedule 6(b)~~ attached hereto, neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in any Registration Statements other than the Registrable Securities. The Company shall not file any other registration statements until all Registrable Securities are registered pursuant to a Registration Statement that is declared effective by the Commission, provided that this Section 6(b) shall not prohibit the Company from filing amendments to registration statements filed prior to the date of this Agreement.

~~(c)~~ ~~Compliance~~. Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to a Registration Statement.

~~(d)~~ ~~Discontinued Disposition~~. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(d)(iii) through (vi), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “~~Advice~~”) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company agrees and acknowledges that any periods during which the Holder is required to discontinue the disposition of the Registrable Securities hereunder shall be subject to the provisions of Section 2(d).

~~(e)~~ ~~Piggy-Back Registrations~~. If, at any time during the Effectiveness Period, there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the Company’s stock option or other employee benefit plans, then the Company shall deliver to each Holder a written notice of such determination and, if within fifteen days after the date of the delivery of such notice, any such Holder shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such Holder requests to be registered;~~provided~~,~~however~~, that the Company shall not be required to register any Registrable Securities pursuant to this Section 6(e) that are eligible for resale pursuant to Rule 144, without volume restrictions or current public information requirements, promulgated by the Commission pursuant to the Securities Act or that are the subject of a then effective Registration Statement that is available for resales or other dispositions by such Holder.

~~(f)~~ ~~Amendments and Waivers~~. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Holders of 51% or more of the then outstanding Registrable Securities (for purposes of clarification, this includes any Registrable Securities issuable upon exercise or conversion of any Security), provided that, if any amendment, modification or waiver disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder (or group of Holders) shall be required. If a Registration Statement does not register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given only by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates;~~provided~~,~~however~~, that the provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the first sentence of this Section 6(f). No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.

~~(g)~~ ~~Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth in the Contribution Agreement.~~

~~(h)~~ ~~Successors and Assigns~~. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective rights hereunder in the manner and to the Persons as permitted under Section 12.8 of the Contribution Agreement.

~~(i)~~ ~~No Inconsistent Agreements~~. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Except as set forth on~~Schedule 6(i)~~, neither the Company nor any of its Subsidiaries has previously entered into any agreement granting any registration rights with respect to any of its securities to any Person that have not been satisfied in full.

~~(j)~~ ~~Execution and Counterparts~~. This Agreement may be executed in two or more counterparts, all of which when taken together 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, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature 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 facsimile or “.pdf” signature page were an original thereof.

(k) ~~Governing Law~~Expenses. ~~All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in accordance with the provisions of the Contribution Agreement.~~

~~(l)~~ ~~Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.~~

~~(m)~~ ~~Severability~~. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

~~(n)~~ ~~Headings. The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or affect any of the provisions hereof.~~

~~(o)~~ ~~Independent Nature of Holders’ Obligations and Rights~~. The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Holders are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions. Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders collectively and not between and among Holders.

~~(Signature Pages Follow)~~

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

	~~PHOTOMEDEX, INC.~~

	~~By:~~
	~~Name:~~
	~~Title:~~

~~[SIGNATURE PAGE OF HOLDERS FOLLOWS]~~

~~[SIGNATURE PAGE OF HOLDERS]~~

~~Name of Holder:~~

~~Signature of Authorized Signatory of Holder~~:

~~Name of Authorized Signatory:~~

~~Title of Authorized Signatory:~~

~~Annex A~~

~~Plan of Distribution~~

~~Each Selling Stockholder (the “Selling Stockholders~~”) of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:

~~ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;~~

~~block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;~~

~~purchases by a broker-dealer as principal and resale by the broker-dealer for its account;~~

~~an exchange distribution in accordance with the rules of the applicable exchange;~~

~~privately negotiated transactions;~~

~~settlement of short sales;~~

~~in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security;~~

~~through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;~~

~~a combination of any such methods of sale; or~~

~~any other method permitted pursuant to applicable law.~~

~~The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus.~~

Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.

In connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.

The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.

We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.

Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).

~~SELLING SHAREHOLDERS~~

The common stock being offered by the selling shareholders are those previously issued to the selling shareholders, and those issuable to the selling shareholders, upon exercise of the warrants. For additional information regarding the issuances of those shares of common stock and warrants, see "Contribution Transaction” above. We are registering the shares of common stock in order to permit the selling shareholders to offer the shares for resale from time to time. Except for [Describe relationships with affiliated selling stockholders] and the ownership of the shares of common stock and the warrants, the selling shareholders have not had any material relationship with us within the past three years.

The table below lists the selling shareholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling shareholders. The second column lists the number of shares of common stock beneficially owned by each selling shareholder, based on its ownership of the shares of common stock and warrants, as of ________, 2017, assuming exercise of the warrants held by the selling shareholders on that date, without regard to any limitations on exercises.

~~The third column lists the shares of common stock being offered by this prospectus by the selling shareholders.~~

In accordance with the terms of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale of the sum of (i) the number of shares of common stock issued to the selling shareholders in connection with the Contribution Transaction and (ii) the maximum number of shares of common stock issuable upon exercise of the warrants issued to the Selling Stockholders in connection with the Contribution Transaction, (iii) the maximum number of shares of common stock issuable upon the conversion of Series A Preferred Stock issued to the Selling Stockholders in connection with the Contribution Trasaction, (iv) the maximum number of shares of common stock issuable upon the conversion of certain promissory notes issued to affiliates of the company in connection with the Contribution Transaction, determined as if the outstanding warrants, Series A Preferred Stock and Payout Notes were exercised or converted, as the case may be, in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants. The fourth column assumes the sale of all of the shares offered by the selling shareholders pursuant to this prospectus.

Under the terms of the warrants and the Series A Preferred Stock, a selling shareholder may not exercise the warrants or convert the Series A Preferred Stock if such exercise or conversion would result in the issuance of more than 19.9% of the shares of our common stock outstanding immediately prior to the closing of the Contribution Transaction taken together with other issuances of common stock in connection with the Contribution Transaction unless the approval of a majority of the outstanding common stock of the Company not including for this purpose the shares of Common Stock underlying the warrants or the Series A Preferred Stock or the other shares of common stock issued in connection with the Contribution Transaction. The number of shares in the second column does not reflect this limitation. The selling shareholders may sell all, some or none of their shares in this offering. See "Plan of Distribution."

~~Name of Selling Shareholder~~

~~Number of shares of~~

~~Common Stock~~

~~Owned Prior to~~

~~Offering~~

~~Maximum Number~~

~~of shares of Common~~

~~Stock to be Sold~~

~~Pursuant to this~~

~~Prospectus~~

~~Number of shares~~

~~of Common Stock~~

~~Owned After~~

~~Offering~~

~~Annex C~~

~~PHOTOMEDEX, INC.~~

~~Selling Stockholder Notice and Questionnaire~~

~~The undersigned beneficial owner of common stock (the “Registrable Securities”) of PhotoMedex, Inc., a Nevada corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement~~”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.

Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.

~~NOTICE~~

~~The undersigned beneficial owner (the “Selling Stockholder~~”) of Registrable Securities hereby elects to include the Registrable Securities owned by it in the Registration Statement. The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:

~~QUESTIONNAIRE~~

~~Name.~~

	~~(a)~~	~~Full Legal Name of Selling Securityholder~~

	~~(b)~~	~~Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held:~~

	~~(c)~~	~~Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire):~~

~~Address for Notices to Selling Securityholder:~~

~~Telephone:~~

~~Fax:~~

~~Contact Person:~~

~~Beneficial Ownership of Registrable Securities:~~

~~Type and Principal Amount of Registrable Securities beneficially owned:~~

~~Broker-Dealer Status:~~

~~(a)~~

~~Are you a broker-dealer?~~

~~Yes~~ ¨ No ¨

~~Note:~~

~~If yes, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.~~

~~(b)~~

~~Are you an affiliate of a broker-dealer?~~

~~Yes~~ ¨ No ¨

~~(c)~~

If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?

~~Yes~~ ¨ No ¨

~~Note:~~

~~If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.~~

~~Beneficial Ownership of Other Securities of the Company Owned by the Selling Securityholder.~~

~~Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3.~~

~~Type and Amount of Other Securities beneficially owned by the Selling Securityholder:~~

~~Relationships with the Company:~~

Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

~~State any exceptions here:~~

The undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.

By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.

~~IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.~~

~~Date:~~

~~Beneficial Owner:~~

	~~By:~~
	~~Name:~~
	~~Title:~~

~~PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:~~

~~Exhibit E~~

~~Amended and Restated Articles of Incorporation of Acquiror Parent~~

~~AMENDED AND RESTATED ARTICLES OF INCORPORATION~~

~~PHOTOMEDEX, INC.~~

~~Pursuant to NRS Chapter 78~~

~~1. The name of the corporation (the “Corporation”) is PhotoMedex, Inc.~~

2. The address of the registered office of the Corporation in the State of Nevada shall be at [Jolley Urga Wirth Woodbury & Standish, 3800 Howard Hughes Parkway, Sixteenth Floor, Las Vegas, Nevada 89169. The name and address of the Corporation’s registered agent in the State of Nevada is Jolley Urga Wirth Woodbury & Standish.]

3. (a) The total number of shares of capital stock which the Corporation shall have authority to issue is five hundred fifty million (550,000,000) shares, of which (i) fifty million (50,000,000) shares are designated as preferred stock, with a par value of $0.01 per share (“Preferred Stock”) and (ii) five hundred million (500,000,000) shares are designated as common stock, with a par value of $0.01 per share (“Common Stock”).

(b) The Preferred Stock of the Corporation may be issued by the Board of Directors of the Corporation in one or more series and each such series shall have such voting powers, full or limited, or no voting powers, and such designations, preferences, limitations or restrictions as the Board of Directors of the Corporation may determine, from time to time, including but not limited to:

~~(i) the designation of such class or series;~~

(ii) the dividend rate, if any, of such class or series, the conditions and dates upon which such dividends shall be payable, the preference or relation which such dividends shall bear to the dividends payable on any other class or classes or of any other series of capital stock, whether such dividends shall be cumulative or non-cumulative, and whether such dividends may be paid in shares of any class or series of capital stock or other securities of the Corporation;

(iii) whether the shares of such class or series shall be subject to redemption by the Corporation, and, if made subject to such redemption, the times, prices and other terms and conditions of such redemption;

~~(iv) the terms and amount of any sinking fund provided for the purchase or redemption of the shares of such class or series;~~

(v) whether or not the shares of such class or series shall be convertible into or exchangeable for shares of any other class or classes or series of capital stock or other securities of the Corporation, and, if provision be made for conversion or exchange, the times, prices, rates, adjustment and other terms and conditions of such conversion or exchange;

(vi) the extent, if any, to which the holders of the shares of such class or series shall be entitled to vote, as a class or otherwise, with respect to the election of the directors or otherwise, and the number of votes to which the holder of each share of such class or series shall be entitled;

~~(vii) the restrictions, if any, on the issue or reissue of any additional shares or any class or series of Preferred Stock; and~~

~~(viii) the rights of the holders of the shares of such class or series upon the dissolution of, or upon the distribution of assets of, the Corporation.~~

(c) Holders of shares of Common Stock shall be entitled to cast one vote for each share held at all stockholders’ meetings for all purposes, including the election of directors. The Common Stock does not have cumulative voting rights.

(d) Subject to such rights as may be granted to the holders of any series of Preferred Stock, no holder of shares of stock of any class shall be entitled as a matter of right to subscribe for or purchase or receive any part of any new or additional issue of shares of stock of any class, or of securities convertible into shares of stock of any class, whether now hereafter authorized or whether issued for money, for consideration other than money, or by way of dividend.

~~4. The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized in Nevada.~~

5. Except as otherwise provided by law, a director or officer is not individually liable to the Corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that (a) the director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer; and (b) the breach of those duties involved intentional misconduct, fraud or a knowing violation of law. Any repeal or modification of this paragraph 5 by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation of the personal liability of a director of officer of the Corporation for acts or omissions prior to such repeal or modification.

6. The Corporation shall provide indemnification to its directors and officers to the maximum extent permitted by law. The Corporation shall pay advancements of expenses in advance of the final disposition of the action, suit, or proceedings upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that he or she is not entitled to be indemnified by the corporation.

~~7. The provisions of NRS Sections 78.378 to 78.3793, inclusive, shall be inapplicable to the Corporation.~~

~~8. The provisions of NRS Sections 78.411 to 78.444, inclusive, shall be inapplicable to the Corporation.~~

9. These Restated Articles of Incorporation were approved by the Board of Directors and the holders of a majority of the outstanding shares of common stock pursuant to NRS 78.390 and NRS 78.320, and this instrument correctly sets forth in full the articles of incorporation, as amended and restated.

~~IN WITNESS WHEREOF, the undersigned officer has signed these restated articles of incorporation this ___ day of _______, 2017.~~

~~_________________, Chief Executive Officer~~

~~Exhibit F~~

~~Amended and Restated Bylaws of Acquiror Parent~~

~~AMENDED AND RESTATED~~

~~BYLAWS OF~~

~~PHOTOMEDEX, INC.~~

~~(a Nevada Corporation)~~

~~(adopted effective as of ______, 2017)~~

These Amended and Restated Bylaws of PhotoMedex, Inc., a Nevada corporation (the “Corporation”) are adopted pursuant to Section 7.01 of the Corporation’s existing Amended and Restated Bylaws, as amended (the “Original Bylaws”), and are intended to amend, restate and replace, in their entirety, the Original Bylaws effective as of the date first written above.

~~ARTICLE 1~~

~~OFFICES~~

~~SECTION 1.1.~~ ~~Principal Office. The principal offices of the Corporation shall be in such location as the Board of Directors of the Corporation (the “Board of Directors”) may determine.~~

~~SECTION 1.2.~~ ~~Other Offices~~. The Corporation may also have offices at such other places both within and without the State of Nevada as the Board of Directors may from time to time determine or the business of the Corporation may require.

~~ARTICLE 2~~

~~MEETINGS OF STOCKHOLDERS~~

~~SECTION 2.1.~~ ~~Place of Meeting; Chairman~~. All meetings of stockholders shall be held at such place, either within or without the State of Nevada, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. The Chairman of the Board of the Corporation (or the Executive Chairman of the Corporation, if such office is designated and filled in accordance with these Bylaws) (the “Chairman of the Board”) or any other person specifically designated by the Board of Directors shall act as the Chairman for any meeting of stockholders of the Corporation. The Chairman of the Board (or his or her designee) shall have full authority to control the process of any stockholder or Board of Directors meeting, including, without limitation, determining whether any proposals or nominations were properly brought before such meeting, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting, limitations on participation in such meeting to stockholders of record of the Corporation and their duly authorized and constituted proxies and such other persons as the Chairman of the Board (or his or her designee) shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, requiring ballots by written consent, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot.

~~SECTION 2.2.~~ ~~Annual Meetings~~. The annual meeting of stockholders of the Corporation shall be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, subject to any postponement in the Board of Directors’ sole discretion, upon notice of such postponement given in any manner deeded reasonable by the Board of Directors.

~~SECTION 2.3.~~ ~~Special Meetings~~. Special meetings of the stockholders of the Corporation, for any purpose or purposes, unless otherwise prescribed by the Nevada Revised Statutes (“NRS”) or by the Articles of Incorporation of the Corporation, as amended (the “Articles of Incorporation”), may be called exclusively by: (i) the Chairman of the Board or the Chief Executive Officer, President or other executive officer of the Corporation, (ii) the majority of the Board of Directors or (iii) the request in writing of stockholders of record, and only of record, owning not less than a majority of the entire capital stock of the Corporation issued and outstanding and entitled to vote (the “Requisite Percent”). Such request shall state the purpose or purposes of the proposed meeting. The officers or directors shall fix the date, time and any place, either within or without the State of Nevada, as the place for holding such meeting; provided, however, that the date of any such special meeting shall be not more than ninety (90) days after the date on which a special meeting request properly brought pursuant to Sections 2.3 and 2.5 are delivered to the Secretary of the Corporation.

~~SECTION 2.4.~~ ~~Notice of Meeting~~. Written notice of the annual and each special meeting of stockholders of the Corporation, stating the time, place and purpose or purposes thereof, shall be given to each stockholder entitled to vote thereat, not less than ten (10) nor more than sixty (60) days before the meeting and shall be signed by the Chairman of the Board, the President or the Secretary of the Corporation (the “Secretary”). The Board of Directors may postpone a special meeting in its sole discretion in any manner it deems reasonable. In no event shall any adjournment or postponement of an annual meeting or special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described below.

~~SECTION 2.5.~~ ~~Business Conducted at Meetings~~.

Section 2.5.1 At any meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before a meeting, business must be: (a) specified in the notice of meeting (or any supplement thereto provided within the notice period specified in Section 2.4) given by or at the direction of the Chairman of the Board, the President or the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder or stockholders of record, and only of record, holding the Requisite Percent in accordance with applicable law, these Bylaws or otherwise. In addition to any other applicable requirements set forth in these Bylaws, the U.S. federal securities laws or otherwise, for business to be properly brought before a meeting called by stockholders representing the Requisite Percent, such stockholder(s) must have given timely notice thereof in writing to the Secretary. Any special meeting of the Corporation proposed to be called by a stockholder or stockholders in such capacity shall not be required to be held: (i) with respect to any matter, within 12 months after any annual or special meeting of stockholders at which the same matter was included on the agenda, or if the same matter will be included on the agenda at an annual meeting to be held within 90 days after the receipt by the Corporation of such request (the election or removal of directors to be deemed the same matter with respect to all matters involving the election or removal of directors) or (ii) if the purpose of the special meeting is not a lawful purpose or if such request violates applicable law. A stockholder may revoke a request for a special meeting at any time by written revocation delivered to the Secretary, and if, following such revocation, there are un-revoked requests from stockholders holding in the aggregate less than the requisite number of shares entitling the stockholders to request the calling of a special meeting, the Board of Directors, in its discretion, may cancel the special meeting. If none of the stockholders who submitted the request for a special meeting appears or sends a qualified representative to present the nominations proposed to be presented or other business proposed to be conducted at the special meeting, the Corporation need not present such nominations or other business for a vote at such meeting.

Section 2.5.2 To be timely, a stockholder’s notice of a proposal to be included at an annual meeting must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary of the date on which the Corporation first mailed its proxy materials for the previous year’s annual meeting of stockholders (or the date on which the Corporation mails its proxy materials for the current year if during the prior year the Corporation did not hold an annual meeting or if the date of the annual meeting was changed more than thirty (30) days from the prior year).

Section 2.5.3 A record stockholders’ notice to the Secretary shall set forth in writing as to each matter the stockholder(s) propose to bring before the meeting: (a) a detailed description of the business desired to be brought before the meeting and the reasons for proposing such business, including the complete text of any resolutions, bylaws or Articles of Incorporation amendments proposed for consideration (b) the name and address, as they appear on the Corporation’s books, of the stockholders proposing such business, (c) the class and number of shares of the Corporation which are owned directly or indirectly of record and directly or indirectly beneficially owned by the stockholders and each of its affiliates (within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, or any successor rule thereto (“Rule 144”)), including any shares of the Corporation owned or controlled via derivatives, synthetic securities, hedged positions and other economic and voting mechanisms, (d) any material interest of the stockholders in such proposed business and any agreements or understandings to which such stockholders are a party which relate in any way, directly or indirectly, to the proposed business to be conducted, including a description of all arrangements or understandings between such stockholder and any other person or persons (including their names), (e) a representation as to whether or not such stockholder intends to solicit proxies; (f) a representation as to whether or not such stockholder intends to appear in person or by proxy at the applicable meeting, and (g) such other information regarding the stockholder in his, her or its capacity as a proponent of a stockholder proposal that would be required to be disclosed in a proxy statement or other filing with the United States Securities and Exchange Commission (“SEC”) required to be made in connection with the contested solicitation of proxies pursuant to the SEC’s proxy rules.

~~Section 2.5.4 Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth~~ in this Section 2.5. The Chairman of the meeting shall, in his or her sole discretion, determine and declare to the meeting whether or not any business was properly brought before the meeting. Any such business not properly brought before the meeting shall not be transacted. Nothing in this Section 2.5 shall affect the right of a stockholder to request inclusion of a proposal in the Corporation’s proxy statement to the extent that such right is provided by an applicable rule of the SEC. Notwithstanding the foregoing, the advance notice provisions of these Bylaws shall apply toAgreement all ~~stockholder proposals regardless of whether such proposal is sought to be included in the Corporation’s proxy statement or in a separate proxy statement.~~

~~SECTION 2.6.~~ ~~Nomination of Directors~~. Nomination of candidates for election as directors of the Corporation at any meeting of stockholders called for the election of directors, in whole or in part (an “Election Meeting”), must be made by the Board of Directors or by any stockholder entitled to vote at such Election Meeting, in accordance with the following procedures.

Section 2.6.1. Nominations made by the Board of Directors shall be made at a meeting of the Board of Directors or by written consent of the directors in lieu of a meeting prior to the date of the Election Meeting. At the request of the Corporation, each proposed individual nominated by the Board of Directors shall provide the Corporation with such information concerning himself or herself as is required, under the rules of the SEC and any applicable securities exchange, to be included in the Corporation’s proxy statement soliciting proxies for his or her election as a director.

Section 2.6.2. The exclusive means by which a stockholder may nominate a director shall be: (i) in the case of the nomination of a director for election at an annual meeting, by delivery of a notice to the Secretary, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary of the date on which the Corporation first mailed its proxy materials for the previous year’s annual meeting of stockholders (or the date on which the Corporation mails its proxy materials for the current year if during the prior year the Corporation did not hold an annual meeting or if the date of the annual meeting was changed more than thirty (30) days from the prior year); or (ii) in the case of the nomination of a director for election at a special meeting (other than pursuant to a special meeting request in accordance with the requirements set forth in Sections 2.3 and 2.5), not less than ninety (90) days nor more than one hundred twenty (120) days prior to such special meeting or, if later, the tenth (10th) day following the day on which public disclosure (of the date of such special meeting was first made, setting forth: (a) the name, age, business address and the primary legal residence address of each nominee proposed in such notice, (b) the principal occupation or employment of such nominee, (c) the number of shares of capital stock of the Corporation which are owned directly or indirectly of record and directly or indirectly beneficially owned by the nominee and each of its affiliates (within the meaning of Rule 144), including any shares of the Corporation owned or controlled via derivatives, hedged positions and other economic and voting mechanisms, (d) any material agreements, understandings or relationships, including financial transactions and compensation, between the nominating stockholder and the proposed nominees and (d) such other information concerning each such nominee as would be required, under the rules of the SEC, in a proxy statement soliciting proxies in a contested election of such nominees. Such notice shall include a signed consent of each such nominee to serve as a director of the Corporation, if elected. In addition, any stockholder nominee, to be validly nominated, shall submit to the Secretary the questionnaire required pursuant to Section 2.6.3 of these Bylaws. A stockholder intending to nominate one or more candidates for election as directors must comply with the advance notice bylaw provisions specifically applicable to the nomination of candidates for election as directors for such nomination to be properly brought before the meeting. For purposes of these Bylaws, “public disclosure” shall mean shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the SEC pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended.

Section 2.6.3 To be eligible to be a director nominee nominated by a stockholder or stockholders for election or reelection as a director of the Corporation, such nominee must deliver (in accordance with the time periods prescribed for delivery of notice under Section 2.6.2 of these Bylaws) to the Secretary at the principal executive offices of the Corporation a written questionnaire (the “Questionnaire”) with respect to the background, qualification and experience of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be in the form approved by the Corporation and provided by the Secretary or such Secretary’s designee) and a written representation and agreement that such person: (a) will abide by the requirements of these Bylaws and the Articles of Incorporation as in effect at the time of their nomination and as validly amended, (b) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (c) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (d) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation. If, prior to the Election Meeting, there is a change in any information set forth on the Questionnaire, then such director candidate shall promptly notify the Secretary by submitting a revised Questionnaire.

Section 2.6.4. In the event that a person is validly designated by the Board of Directors as a nominee in accordance with this Section 2.6 and shall thereafter become unable or willing to stand for election to the Board of Directors, the Board of Directors may designate a substitute nominee who meets all applicable standards under these Bylaws.

~~Section 2.6.5. If the Chairman of the Election Meeting determines that a nomination was not made in accordance with the foregoing procedures, such nomination shall be void.~~

~~SECTION 2.7.~~ ~~Quorum; Adjournment~~.

Section 2.7.1 The holders of a majority of the shares of capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy (provided the proxy has authority to vote on at least one matter at such meeting), shall constitute a quorum at any meeting of stockholders for the transaction of business, except when stockholders are required to vote by class, in which event a majority of the issued and outstanding shares of the appropriate class shall be present in person or by proxy (provided the proxy has authority to vote on at least one matter at such meeting) in order to constitute a quorum as to such class vote, and except as otherwise provided by the NRS or by the Articles of Incorporation. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to have less than a quorum if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.

Section 2.7.2 Notwithstanding any other provision of the Articles of Incorporation or these Bylaws, at any annual or special meeting of stockholders of the Corporation, whether or not a quorum is present, the Chairman of the Board or the person presiding as Chairman of the meeting shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, whether or not a quorum shall be present or represented. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting in accordance with Section 2.4 of these Bylaws. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

~~SECTION 2.8.~~ ~~Voting; Proxies~~.

Section 2.8.1 Except as provided for below or by applicable law, rule or regulation, when a quorum is present at any meeting of the stockholders, any action by the stockholders on a matter except the election of directors shall be approved if approved by the majority of the votes cast. Each nominee for director shall be elected by the majority of the votes cast with respect to that nominee’s election at any meeting for the election of directors at which a quorum is present, provided, however, that, in the case of a director nominee in a Contested Election, the Board of Directors, in its sole discretion, may determine that directors shall be elected by a plurality of the votes cast in any Contested Election, such determination to be made no later than five (5) days prior to the date of the Election Meeting as initially announced. For purposes of these Bylaws, a “Contested Election” means an election of directors with respect to which the Board of Directors determines that the number of nominees exceeds the number of directors to be elected and the Board of Directors has not rescinded such determination by the date that is five (5) days prior to the date of the Election Meeting as initially announced. In determining the number of votes cast in a Contested Election, abstentions and broker non-votes, if any, will not be treated as votes cast. The provisions of this paragraph will govern with respect to all votes of stockholders except as otherwise provided for in the Articles of Incorporation or by a specific statutory provision superseding the provisions of these Bylaws.

Section 2.8.2 Every stockholder having the right to vote shall be entitled to vote in person, or by proxy: (a) appointed by an instrument in writing subscribed by such stockholder or by his or her duly authorized attorney or (b) authorized by the transmission of an electronic record by the stockholder to the person who will be the holder of the proxy or to a firm which solicits proxies or like agent who is authorized by the person who will be the holder of the proxy to receive the transmission subject to any procedures the Board of Directors may adopt from time to time to determine that the electronic record is authorized by the stockholder; provided, however, that no such proxy shall be valid after the expiration of six (6) months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven (7) years from the date of its execution. If such instrument or record shall designate two (2) or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one (1) be present, then such powers may be exercised by that one (1). Unless required by the NRS or determined by the Chairman of the meeting to be advisable, the vote on any matter need not be by written ballot. No stockholder shall have cumulative voting rights.

~~SECTION 2.9.~~ ~~Consent of Stockholders~~. Whenever the vote of the stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if stockholders, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, consent in writing to such corporate action being taken; provided, that in no case shall the written consent be by the holders of stock having less than the minimum percentage of the vote required by the NRS. Any action by consent of the stockholders pursuant to this Section 2.9 must follow the notice and timing procedures of Section 2.5 applicable to any business to be conducted at a stockholder meeting. Further, upon the request of a stockholder to conduct a consent solicitation, the Board of Directors shall adopt a resolution fixing a record date within ten (10) days of the date on which a request therefor is received, provided that such record date shall not be more than ten (10) days after the date of the adoption of such resolution.

~~SECTION 2.10.~~ ~~Voting of Stock of Certain Holders~~. Shares standing in the name of another entity, domestic or foreign, may be voted by such officer, agent or proxy as the governing documents of such entity may prescribe, or in the absence of such provision, as the Board of Directors or governing body of such entity may determine. Shares standing in the name of a deceased person may be voted by the executor or administrator of such deceased person, either in person or by proxy. Shares standing in the name of a guardian, conservator or trustee may be voted by such fiduciary, either in person or by proxy, but no such fiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the name of such fiduciary. Shares outstanding in the name of a receiver may be voted by such receiver. A stockholder whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the Corporation, he or she has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his or her proxy, may represent the stock and vote thereon.

~~SECTION 2.11.~~ ~~Treasury Stock. The Corporation shall not vote, directly or indirectly, shares of its own stock owned by it; and such shares shall not be counted in determining the total number of outstanding shares.~~

~~SECTION 2.12.~~ ~~Fixing Record Date~~. The Board of Directors may fix in advance a date for any meeting of stockholders (which date shall not be more than sixty (60) nor less than ten (10) days preceding the date of any such meeting of stockholders), a date for payment of any dividend or distribution, a date for the allotment of rights, a date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining a consent of stockholders (which date shall not precede or be more than ten (10) days after the date the resolution setting such record date is adopted by the Board of Directors), in each case as a record date (the “Record Date”) for the determination of the stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, to receive payment of any such dividend or distribution, to receive any such allotment of rights, to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, as the case may be. In any such case such stockholders and only such stockholders as shall be stockholders of record on the Record Date shall be entitled to such notice of and to vote at any such meeting and any adjournment thereof, to receive payment of such dividend or distribution, to receive such allotment of rights, to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such Record Date.

~~ARTICLE 3~~

~~BOARD OF DIRECTORS~~

~~SECTION 3.1.~~ ~~Powers~~. The business and affairs of the Corporation shall be managed by the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders. Subject to compliance with the provisions of the NRS, the powers of the Board of Directors shall include the power to make a liquidating distribution of the assets, and wind up the affairs of, the Corporation.

~~SECTION 3.2.~~ ~~Number and Qualifications~~. The number of directors which shall constitute the whole Board of Directors shall be not less than one (1) and not more than nine (9). Within the limits above specified, the number of the directors of the Corporation shall be determined solely in the discretion of the Board of Directors from time to time. All directors shall be elected annually. Directors need not be residents of Nevada or stockholders of the Corporation.

~~SECTION 3.3.~~ ~~Vacancies, Additional Directors; Removal From Office; Resignation~~.

SECTION 3.3.1 If any vacancy occurs in the Board of Directors caused by death, resignation, retirement, disqualification, removal from office or otherwise, or if any new directorship is created in accordance with Section 3.2 by an increase in the authorized number of directors, a majority of the directors then in office, though less than a quorum, or a sole remaining director, but not the stockholders of the Corporation, may choose a successor or fill the newly created directorship. Any director so chosen shall hold office for the unexpired term of his or her predecessor in his or her office and until his or her successor shall be elected and qualified, unless sooner displaced.

~~SECTION 3.3.2 No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.~~

SECTION 3.3.3 The stockholders of the Corporation may remove a member of the Board of Directors by the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the issued and outstanding stock entitled to vote.

SECTION 3.3.4 Any director may resign or voluntarily retire upon giving written notice to the Chairman of the Board or the Board of Directors. Such retirement or resignation shall be effective upon the giving of the notice, unless the notice specifies a later time for its effectiveness. If such retirement or resignation is effective at a future time, the Board of Directors may elect a successor to take office when the retirement or resignation becomes effective.

~~SECTION 3.4.~~ ~~Regular Meetings~~. A regular meeting of the Board of Directors shall be held each year, without notice other than this Bylaw provision, at the place of, and immediately prior to and/or following, the annual meeting of stockholders; and other regular meetings of the Board of Directors shall be held during each year, at such time and place as the Board of Directors may from time to time provide by resolution, either within or without the State of Nevada, without other notice than such resolution. The Board of Directors shall keep minutes of its regular meetings.

~~SECTION 3.5.~~ ~~Special Meetings~~. Special meetings of the Board of Directors may be called by the Chairman of the Board or by the President and shall be called by the Secretary on the written request of any two (2) directors (should there be such number then in office). The Chairman of the Board or President so calling, or the directors so requesting, any such meeting shall fix the time and any place, either within or without the State of Nevada, as the place for holding such meeting. The Board of Directors shall keep minutes of its special meetings.

~~SECTION 3.6.~~ ~~Notice of Special Meeting~~. Written notice (including via e-mail) of special meetings of the Board of Directors shall be given to each director at least twenty-four (24) hours prior to the time of a special meeting. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting solely for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting, except that notice shall be given with respect to any matter when notice is required by the NRS.

~~SECTION 3.7.~~ ~~Quorum~~. A majority of the Board of Directors then serving shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, and the act of a majority of the directors present at any meeting at which there is quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by the NRS, by the Articles of Incorporation or by these Bylaws. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved of by at least a majority of the required quorum for that meeting.

~~SECTION 3.8.~~ ~~Action Without Meeting~~. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof as provided in Article 4 of these Bylaws, may be taken without a meeting, if a written consent thereto is signed by all of the members of the Board of Directors or of such committee, as the case may be. Evidence of any consent to action under this Section3.~~8 may be provided in writing, including electronically via email or facsimile.~~

~~SECTION 3.9.~~ ~~Meeting by Telephone~~. Any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken by means of a meeting by telephone conference or similar communications method so long as all persons participating in the meeting can hear each other. Any person participating in such meeting shall be deemed to be present in person at such meeting.

~~SECTION 3.10.~~ ~~Compensation~~. Directors, as such, may receive reasonable compensation for their services, which shall be set by the Board of Directors, and expenses of attendance at each regular or special meeting of the Board of Directors; provided, however, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving additional compensation therefor. Members of special or standing committees may be allowed like compensation for their services on committees.

~~SECTION 3.11.~~ ~~Rights of Inspection~~. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the Corporation and also of its subsidiary corporations, domestic or foreign. Such inspection by a director may be made in person or by agent or attorney and includes the right to copy and obtain extracts.

~~SECTION 3.12~~ ~~Interested Directors~~. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if: (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or their committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the shareholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

~~ARTICLE 4~~

~~COMMITTEES OF DIRECTORS~~

~~SECTION 4.1.~~ ~~Generally~~. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more additional special or standing committees, each such additional committee to consist of one or more of the directors of the Corporation. Each such committee shall have and may exercise such of the powers of the Board of Directors in the management of the business and affairs of the Corporation as may be provided in such resolution, except as delegated by these Bylaws or by the Board of Directors to another standing or special committee or as may be prohibited by law.

~~SECTION 4.2.~~ ~~Committee Operations~~. A majority of a committee shall constitute a quorum for the transaction of any committee business. Such committee or committees shall have such name or names and such limitations of authority as provided in these Bylaws or as may be determined from time to time by resolution adopted by the Board of Directors. The Corporation shall pay all expenses of committee operations. The Board of Directors may designate one or more appropriate directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of any members of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another appropriate member of the Board of Directors to act at the meeting in the place of any absent or disqualified member.

~~SECTION 4.3.~~ ~~Minutes~~. Each committee of directors shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. The Corporation’s Secretary, or any other person designated by the applicable committee shall (a) serve as the Secretary of the special or standing committees of the Board of Directors of the Corporation, (b) keep regular minutes of standing or special committee proceedings, (c) make available to the Board of Directors, as required, copies of all resolutions adopted or minutes or reports of other actions recommended or taken by any such standing or special committee and (d) otherwise as requested keep the members of the Board of Directors apprised of the actions taken by such standing or special committees.

~~ARTICLE 5~~

~~NOTICE~~

~~SECTION 5.1. Methods of Giving Notice.~~

~~SECTION 5.1.1.Notice to Directors or Committee Members~~. Whenever under the provisions of the NRS, the Articles of Incorporation or these Bylaws, notice is required to be given to any director or member of any committee of the Board of Directors, personal notice is not required but such notice may be: (a) given in writing and mailed to such director or committee member, (b) sent by electronic transmission (including via e-mail) to such director or committee member, or (c) given orally or by telephone; provided, however, that any notice from a stockholder to any director or member of any committee of the Board of Directors must be given in writing and mailed to such director or member and shall be deemed to be given upon receipt by such director or member. If mailed, notice to a director or member of a committee of the Board of Directors shall be deemed to be given when deposited in the United States mail first class, or by overnight courier, in a sealed envelope, with postage thereon prepaid, addressed, to such person at his or her business address. If sent by electronic transmission, notice to a director or member of a committee of the Board of Directors shall be deemed to be given if by (i) facsimile transmission, when receipt of the fax is confirmed electronically, (ii) electronic mail, when delivered to an electronic mail address of the director or member, (iii) a posting on an electronic network together with a separate notice to the director or member of the specific posting, upon the later of (1) such posting and (2) the giving of the separate notice (which notice may be given in any of the manners provided above), or (iv) any other form of electronic transmission, when delivered to the director or member.

~~SECTION 5.1.2.Notices to Stockholders~~. Whenever under the provisions of the NRS, the Articles of Incorporation or these Bylaws, notice is required to be given to any stockholder, personal notice is not required but such notice may be given: (a) in writing and mailed to such stockholder, (b) by a form of electronic transmission consented to by the stockholder to whom the notice is given or (c) as otherwise permitted by the SEC. If mailed, notice to a stockholder shall be deemed to be given when deposited in the United States mail in a sealed envelope, with postage thereon prepaid, addressed to the stockholder at the stockholder’s address as it appears on the records of the Corporation. If sent by electronic transmission, notice to a stockholder shall be deemed to be given if by (i) facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (ii) electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (iii) a posting on an electronic network together with a separate notice to the stockholder of the specific posting, upon the later of (1) such posting and (2) the giving of the separate notice (which notice may be given in any of the manners provided above), or (iv) any other form of electronic transmission, when directed to the stockholder.

~~SECTION 5.2.~~ ~~Written Waiver~~. Whenever any notice is required to be given by the NRS, the Articles of Incorporation or these Bylaws, a waiver thereof in a signed writing or sent by the transmission of an electronic record attributed to the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

~~SECTION 5.3.~~ ~~Consent.~~ Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the Secretary, or by presence at such meeting and oral consent entered in the minutes of such meeting, or by taking part in the deliberations at such meeting without objection, the actions taken at such meeting shall be as valid as if had at a meeting regularly called and noticed. At such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for lack of notice is made at the time, and if any meeting be irregular for lack of notice or such consent, provided a quorum was present at such meeting, the proceedings of such meeting may be ratified and approved and rendered valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote thereat. Such consent or approval, if given by stockholders, may be by proxy or power of attorney, but all such proxies and powers of attorney must be in writing.

~~ARTICLE 6~~

~~OFFICERS~~

~~SECTION 6.1.~~ ~~Officers~~.

SECTION 6.1.1 The officers of the Corporation shall include the Chairman of the Board (or Executive Chairman, if the Board of Directors designates such office), the President, the Secretary and the Treasurer, each as approved and appointed by the Board of Directors.

SECTION 6.1.2 The officers of the Corporation may further include a Chief Executive Officer and a Chief Financial Officer, each as approved and appointed by the Board of Directors, and may further include, without limitation, such other executive or subordinate officers and agents, including, without limitation, one or more Vice Presidents (any one or more of which may be designated Senior Executive Vice President, Executive Vice President, Senior Vice President or such other title as may be determined b the Board of Directors), Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, in each case as the Board of Directors deems necessary and approve and appoint.

SECTION 6.1.3 The Board of Directors may in its discretion delegate to the President the power and authority to appoint subordinate officers of the Corporation and to prescribe their respective duties and powers, but in any instance the Chairman of the Board, the President, the Secretary, the Treasuer and, if designated, the Chief Executive Officer, Chief Financial Officer or any other officer responsible for a principal business unit, division or function of the Corporation (such as sales, administration or finance), or any other officer who performs a policy making function (collectively, the “Principal Officers”), shall be subject to the approval of and appointment by the Board of Directors.

SECTION 6.1.4 All officers of the Corporation shall hold their offices for such terms and shall exercise such powers and perform such duties as prescribed by these Bylaws, the Board of Directors or President, as applicable. Any two or more offices may be held by the same person. The Chairman of the Board shall be elected from among the directors. With the foregoing exception, none of the other officers need be a director, and none of the officers need be a stockholder of the Corporation.

~~SECTION 6.2.~~ ~~Election and Term of Office~~. The Principal Officers shall each be elected only by, and shall serve only at the pleasure of, the Board of Directors. All other officers of the Corporation may be appointed as the Board of Directors or the President deem necessary and elect or appoint. The officers of the Corporation shall be elected or ratified annually by the Board of Directors at its first regular meeting held concurrently with or after the annual meeting of stockholders or as soon thereafter as conveniently possible (or, in the case of those officers elected or appointed other than by the Board of Directors, ratified at the Board of Directors’ first regular meeting held following their election or appointment or as soon thereafter as conveniently possible). Subject to the terms and conditions of any applicable contract between an officer and the Corporation, each officer shall hold office until his or her successor shall have been chosen and shall have qualified or until his or her death or the effective date of his or her resignation or removal, or until he or she shall cease to be a director in the case of the Chairman of the Board.

~~SECTION 6.3.~~ ~~Removal and Resignation~~. Any officer or agent may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors and, other than the Principal Officers, may also be removed, either with or without cause, by action of the President whenever, in his, her judgment, the best interests of the Corporation shall be served thereby, but such right of removal and any purported removal shall be without prejudice to the contractual rights, if any, of the person so removed. Any Principal Officer or other officer or agent may resign at any time by giving written notice to the Corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

~~SECTION 6.4.~~ ~~Vacancies~~. Any vacancy occurring in any Principal Officer office by death, resignation, removal or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. Any vacancy in any other office may be filled as the Board of Directors or President deem necessary.

~~SECTION 6.5.~~ ~~Compensation~~. The compensation of the Principal Officers shall be determined by the Board of Directors or a designated committee thereof. Compensation of all other officers and employees of the Corporation shall be determined by the President in consultation with the Board of Directors or a designated committee thereof and in accordance with any charter of any such committee as has been approved by the Board of Directors or any policies as have been approved by the Board of Directors. No officer who is also a director shall be prevented from receiving such compensation by reason of his or her also being a director.

~~SECTION 6.6.~~ ~~Chairman of the Board~~. The Chairman of the Board (who may also be designated as Executive Chairman), shall preside at all meetings of the Board of Directors and of the stockholders of the Corporation. In the Chairman of the Board’s absence, such duties shall be attended to by any vice chairman of the Board of Directors, or if there is no vice chairman, or such vice chairman is absent, then by the President. The Chairman of the Board shall act as liaison between the Board of Directors and the executive officers of the Corporation and shall be responsible for general oversight of such executive officers. The Chairman of the Board may also hold the position of Chief Executive Officer or President, if so approved or appointed by the Board of Directors. The Chairman of the Board shall formulate and submit to the Board of Directors matters of general policy for the Corporation and shall perform such other duties as usually appertain to the office or as may be prescribed by the Board of Directors. He or she may sign with the President or any other officer of the Corporation thereunto authorized by the Board of Directors certificates for shares of the Corporation, the issuance of which shall have been authorized by resolution of the Board of Directors, and any deeds or bonds, which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof has been expressly delegated or reserved by these Bylaws or by the Board of Directors to some other officer or agent of the Corporation, or shall be required by law to be otherwise executed.

~~SECTION 6.7.~~ ~~President~~. The President shall, subject to the oversight by and control of the Board of Directors, have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President may also, but shall not be required to, hold the position of Chief Executive Officer of the Corporation, if so approved or appointed by the Board of Directors. The President shall keep the Board of Directors fully informed and shall consult them concerning the business of the Corporation. Subject to the supervisory powers of the Board of Directors, the President may sign with the Chairman of the Board or any other officer of the Corporation thereunto authorized by the Board of Directors, certificates for shares of capital stock of the Corporation, the issuance of which shall have been authorized by resolution of the Board of Directors, and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof has been expressly delegated by these Bylaws or by the Board of Directors to some other officer or agent of the Corporation, or shall be required by law to be otherwise executed. In general, the President shall perform all other duties normally incident to the office of the President, except any duties expressly delegated to other persons by these Bylaws, the Board of Directors and such other duties as may be prescribed by the Board of Directors from time to time.

~~SECTION 6.8.~~ ~~Chief Executive Officer~~. The Chief Executive Officer, if any, shall, in general, perform such duties as usually pertain to the position of chief executive officer and such duties as may be prescribed by the Board of Directors.

~~SECTION 6.9.~~ ~~Chief Financial Officer~~. The Chief Financial Officer, if any, shall, in general, perform such duties as usually pertain to the position of chief financial officer and such duties as may be prescribed by the Board of Directors. The Chief Financial Officer (or the Treasurer, if the office of Chief Financial Officer is unoccupied) shall prepare annually (by the thirtieth (30th) day following the end of each fiscal year) a customary and appropriate financial and operational budget of income, expense and cash flows of the Company for the upcoming fiscal year, which budget shall be reviewed and approved by the Board of Directors. Such budget shall be updated quarterly (including a reconciliation of the Company’s actual performance versus the approved budget) and presented to the Board of Directors for review and revision as determined by the Board of Directors.

~~SECTION 6.10.Secretary~~. The Secretary shall: (a) keep the minutes of the meetings of the stockholders, the Board of Directors and committees of directors; (b) see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law; (c) be custodian of the corporate records and of the seal of the Corporation, and see that the seal of the Corporation or a facsimile thereof is affixed to all certificates for shares prior to the issuance thereof and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws; (d) keep or cause to be kept a register of the post office address of each stockholder which shall be furnished by such stockholder; (e) have general charge of other stock transfer books of the Corporation; and (f) in general, perform all duties normally incident to the office of the Secretary and such other duties as from time to time may be assigned to him or her by the Chairman of the Board, the President or the Board of Directors.

~~SECTION 6.11.~~ ~~Treasurer~~. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for monies due and payable to the Corporation from any source whatsoever and deposit all such moneys in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Section 7.3 of these Bylaws; and (b) in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Board of Directors or the President. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors shall determine.

~~SECTION 6.12.~~ ~~Interim Officer Status~~. Any office of the Corporation may be designated by the Board of Directors as interim, and such interim status shall be on such terms and for such duration as may be designated by the Board of Directors.

~~ARTICLE 7~~

~~EXECUTION OF CORPORATE INSTRUMENTS AND~~
~~VOTING OF SECURITIES OWNED BY THE CORPORATION~~

~~SECTION 7.1.~~ ~~Contracts~~. Subject to the provisions of Section 6.1, the Board of Directors may authorize any officer, officers, agent or agents to enter into any contract or execute and deliver an instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.

~~SECTION 7.2.~~ ~~Checks, etc~~. All checks, demands, drafts or other orders for the payment of money, and notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers or such agent or agents of the Corporation, and in such manner, as shall be determined by the Board of Directors.

~~SECTION 7.3.~~ ~~Deposits~~. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the President, the Treasurer or the Chief Financial Officer may be empowered by the Board of Directors to select or as the Board of Directors may select.

~~SECTION 7.4.~~ ~~Voting of Securities Owned by Corporation~~. All stock and other securities of any other corporation owned or held by the Corporation for itself, or for other parties in any capacity, and all proxies with respect thereto shall be executed by the person authorized to do so by resolution of the Board of Directors or, in the absence of such authorization, by any Principal Officer.

~~ARTICLE 8~~

~~SHARES OF STOCK~~

~~SECTION 8.1.~~ ~~Issuance~~. Each stockholder of the Corporation shall be entitled to a certificate or certificates showing the number of shares of stock registered in his or her name on the books of the Corporation. The certificates shall be in such form as may be determined by the Board of Directors, shall be issued in numerical order and shall be entered in the books of the Corporation as they are issued. They shall exhibit the holder’s name and the number of shares and shall be signed by the Chairman of the Board and the President or such other officers as may from time to time be authorized by resolution of the Board of Directors. Any or all the signatures on the certificate may be a facsimile. In case any officer who has signed or whose facsimile signature has been placed upon any such certificate shall have ceased to be such officer before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as if such officer had not ceased to be such officer at the date of its issue. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the designation, preferences and relative participating, option or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class of stock; provided that except as otherwise provided by the NRS, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish to each stockholder who so requests the designations, preferences and relative participating, option or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and rights. All certificates surrendered to the Corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in the case of a lost, stolen, destroyed or mutilated certificate a new certificate (or uncertificated shares in lieu of a new certificate) may be issued therefor upon such terms and with such indemnity, if any, to the Corporation as the Board of Directors may prescribe. In addition to the above, all certificates (or uncertificated shares in lieu of a new certificate) evidencing shares of the Corporation’s stock or other securities issued by the Corporation shall contain such legend or legends as may from time to time be required by the NRS.

~~SECTION 8.2.~~ ~~Lost Certificates~~. The Board of Directors may direct that a new certificate or certificates (or uncertificated shares in lieu of a new certificate) be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates (or uncertificated shares in lieu of a new certificate), the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his or her legal representative, to advertise the same in such manner as it shall require or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate or certificates alleged to have been lost, stolen or destroyed, or both.

~~SECTION 8.3.~~ ~~Transfers~~. In the case of shares of stock represented by a certificate, upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Transfers of shares shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney and filed with the Secretary and the Corporation’s transfer agent, if any.

~~SECTION 8.4.~~ ~~Registered Stockholders~~. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Nevada.

~~SECTION 8.5.~~ ~~Uncertificated Shares. The Board of Directors may approve the issuance of uncertificated shares of some or all of the shares of any or all of its classes or series of capital stock.~~

~~ARTICLE 9~~

~~DIVIDENDS~~

~~SECTION 9.1.~~ ~~Declaration~~. Dividends upon the capital stock of the Corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of capital stock, subject to the provisions of the Articles of Incorporation.

~~SECTION 9.2.~~ ~~Reserve~~. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

~~ARTICLE 10~~

~~LIMITATION ON LIABIILTY AND INDEMNIFICATION1~~

SECTION 10.1 No director or officer shall be personally liable to the Corporation or its shareholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law: (i) for acts or omissions not in good faith or which involve intentional misconduct, fraud or a knowing violation of law, or (ii) for any transaction from which the director derived an improper personal benefit. If the NRS is hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by applicable law. No amendment to or repeal of this Section shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.

¹ ~~Subject to further review by litigation counsel and review of D&O insurance policy.~~

SECTION 10.2 The Corporation shall, to the maximum extent permitted under the applicable law and except as set forth below, indemnify, old harmless and, upon request, advance expenses to each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, including any employee benefit plan (any such person being referred to hereafter as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her or on his or her behalf in connection with such action, suit or proceeding and any appeal therefrom, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Notwithstanding anything to the contrary in this Section, the Corporation shall not indemnify an Indemnitee seeking indemnification in connection with any action, suit, proceeding, claim or counterclaim, or part thereof: initiated by the Indemnitee unless the initiation thereof was approved by the Board of Directors.

~~SECTION 10.3~~ ~~Advance of Expenses~~. Notwithstanding any other provisions of the Articles of Incorporation, these Bylaws, or any agreement, vote of stockholder or disinterested directors, or arrangement to the contrary, the Corporation shall advance payment of expenses incurred by an Indemnitee in advance of the final disposition of any matter only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Section. Such undertaking may be accepted without reference to the financial ability of the Indemnitee to make such repayment.

~~SECTION 10.4~~ ~~Subsequent Amendment~~. No amendment, termination or repeal of this Article 10 or of the relevant provisions of the Chapter 78 of the NRS or any other applicable laws shall affect or diminish in any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal.

~~SECTION 10.5~~ ~~Non-Exclusivity of Rights~~. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article 10 shall not be deemed exclusive of any other rights to which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be an officer, director or agent of the Corporation and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article 10 shall be deemed to be provided by a contract between the Corporation and the Indemnitee who serves in such capacity at any time while these Bylaws and other relevant provisions of the NRS and other applicable law, if any, are in effect.

~~SECTION 10.6~~ ~~Other Rights~~. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Section.

~~SECTION 10.7~~ ~~Reliance~~. Persons who after the date of the adoption of this provision become or remain directors or officers of the Corporation or who, while a director or officer of the Corporation, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this Section in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this Section shall apply to claims made against an Indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.

~~SECTION 10.8~~ ~~Merger or Consolidation~~. If the Corporation is merged into or consolidated with another corporation and the Corporation is not the surviving corporation, the surviving corporation shall assume the obligations of the Corporation under this Section with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the date of such merger or consolidation,

~~SECTION 10.9~~ ~~Insurance~~. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was, or has agreed to become, a director, officer, employee or agent of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust or other enterprise, including any employee benefit plan, against all expenses (including attorney's fees) judgments, fines or amounts paid in settlement incurred by such person in any such capacity or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such expenses under the Chapter 78 of the NRS.

~~SECTION 10.10Savings Clause~~. If this Article 10 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Indemnitee as to any expenses, including attorneys' fees, judgments, fines and amounts paid in settlement in connection with any action, suit, proceeding or investigation, whether civil, criminal or administrative, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article 10 that shall not have been invalidated and to the fullest extent permitted by applicable law.

~~SECTION 10.11Contested Director Indemnification~~. Notwithstanding anything to the contrary contained in these Bylaws, a director who was elected in any Contested Election who is not a continuing director shall not be entitled to any indemnification or advancement of expenses unless and until a majority of the continuing directors vote that the indemnification provisions set forth in this Article 10 shall apply to such newly elected director.

~~ARTICLE 11~~

~~MISCELLANEOUS~~

~~SECTION 11.1.~~ ~~Books~~. The books of the Corporation may be kept within or without the State of Nevada (subject to any provisions contained in the NRS) at such place or places as may be designated from time to time by the Board of Directors.

~~SECTION 11.2.~~ ~~Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as may be designated by the Board of Directors.~~

~~SECTION 11.3~~ ~~Forum Selection~~. Unless the Corporation consents in writing to the selection of an alternative forum, a state or federal court located in the City and County of Denver, Colorado shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any actions asserting a claim arising pursuant to any provision of the NRS, the Articles of Incorporation or these Bylaws, in each case as amended, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to such court having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 11.3.

~~ARTICLE 12~~

~~AMENDMENTS~~

~~SECTION 12.1~~ ~~Amendment By Stockholders~~. The stockholders of the Corporation may alter, amend, repeal or the remove these Bylaws or any portion thereof only by the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the stockholders entitled to vote at a meeting of the stockholders, duly called; provided, however, that no such change to any Bylaw shall alter, modify, waive, abrogate or diminish the Corporation’s obligation to provide the indemnity called for by Article 10 of these Bylaws, the Articles of Incorporation or applicable law.

~~SECTION 12.2~~ ~~Amendment by the Board of Directors~~. Notwithstanding Section 12.1, the Board of Directors may, by majority vote of those present at any meeting at which a quorum is present, alter, amend or repeal these Bylaws or any portion thereof, or enact such other Bylaws as in their judgment may be advisable for the regulation of the conduct of the affairs of the Corporation.

~~Exhibit G~~

~~Voting Agreement~~

~~SHAREHOLDER VOTING SUPPORT AND CONFIDENTIALITY AGREEMENT~~

SHAREHOLDER VOTING SUPPORT AND CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 31, 2017, by and among First Capital Real Estate Trust Incorporated, a Maryland corporation (“First Capital”), and those holders of securities of PhotoMedex, Inc. a Nevada corporation (the “Company”), listed on Schedule I annexed hereto (each a “Stockholder” and collectively, the Stockholders”).

Whereas, First Capital, First Capital Real Estate Operating Partnership, L.P. (the “Contributor”), the Company, and FC Global Realty Operating Partnership, LLC (the “Acquiror”) have entered into a Contribution Agreement dated March 31, 2017 (the “Contribution Agreement”), pursuant to which the Contributor will contribute to the Acquiror its interests in and to certain entities and real properties in exchange for shares of common stock, par value $.01 per share, of the Company, shares of preferred stock, par value $.01 per share, of the Company and warrants to purchase shares of common stock, par value $0.01 per share, of the Company.

~~Whereas, in connection with the Contribution Agreement, the parties hereto desire to enter into this shareholder voting support and confidentiality agreement.~~

~~Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Contribution Agreement.~~

~~As of the date hereof, each Stockholder is the record owner of the number and type of securities of the Company set forth opposite the name of such Stockholder on Schedule I hereto.~~

As a condition to the willingness of First Capital to enter into the Contribution Agreement and as an inducement and in consideration therefor, First Capital and each Stockholder have agreed to enter into this Agreement.

~~The parties, intending to be legally bound, agree as follows:~~

~~SECTION 1.~~ ~~Stockholder Meetings; Voting~~. Each Stockholder hereby agrees that from and after the date hereof and until this Agreement is terminated in accordance with Section 7, such Stockholder shall appear in person or by proxy at any meeting of the stockholders of the Company called for purposes, and any adjournment or postponement thereof, or in any other circumstances upon which a vote, consent or other approval with respect to the Contribution Agreement or the transactions contemplated by the Contribution Agreement is sought by the Company and approved by the board of directors of the Company and recommended to the stockholders of the Company by the board of directors that include any of the following (i) the adoption of the Contribution Agreement and the transactions contemplated by the Contribution Agreement, or (ii) the approval of the number of shares or voting power that can be issued or granted by the Company to First Capital or its stockholders or Affiliates; provided, however, that if a proposal presented to the stockholders of the Company involves the approval of the issuance of the Company’s securities in connection with the contribution of the Mandatory Entity Interests or the Optional Entity Interests, then the board shall have approved and recommended this proposal to the stockholders of the Company by a vote of at least six board members in favor of the proposal. The Company shall notify the Stockholders of whether such requirement has been met.

Each Stockholder hereby agrees that from and after the date hereof and until this Agreement is terminated in accordance with Section 7, such Stockholder shall exercise all of his, her or its rights as a holder of securities of the Company to vote as follows to the extent that the following are approved by the board of directors of the Company and recommended to the stockholders of the Company: (i) in favor of the adoption of the Contribution Agreement and the approval of the transactions contemplated by the Contribution Agreement; (ii) in favor of any proposal seeking approval for the issuance to the Contributor or its designees of common stock of the Company (or securities convertible into or exercisable for common stock of the Company) equal to 20 percent or more of the common stock or 20 percent or more of the voting power outstanding before the issuance, in order that (A) any shares of Series A Preferred Stock of the Company previously issued by the Company to the Contributor or its designees can be immediately converted into Common Stock of the Company, (B) the Warrant (as defined in the Contribution Agreement) can be fully exercised for Common Stock of the Company in accordance with its terms, and (iii) all shares of Common Stock of the Company issuable to the Contributor or its designees pursuant to the Contribution Agreement can be issued to the Contributor as provided therein , (iii) against any proposal made in opposition to, or in competition with, the matters set forth in (i) or (ii) above; and (iv) against any other action that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, discourage or adversely affect the adoption of the Contribution Agreement and approval of the transactions contemplated by the Contribution Agreement; at any meeting of the stockholders of the Company. Notwithstanding the foregoing, if a proposal presented to the stockholders of the Company involves the approval of the issuance of the Company’s securities in connection with the contribution of the Mandatory Entity Interests or the Optional Entity Interests, then the board shall have approved and recommended this proposal to the stockholders of the Company by a vote of at least six board members in favor of the proposal. The Company shall notify the Stockholders of whether such requirement has been met. It is the intention of this paragraph that each Stockholder shall be obligated to vote in accordance with the above regardless of the particular wording of any proposal put forth to the stockholders of the Company, in a manner consistent with the purpose of authorizing the Contribution Agreement and the issuance to the Contributor or its designees of shares of Common Stock of the Company having the maximum voting power as is contemplated by the Contribution Agreement.

~~SECTION 2.~~ ~~Restriction on Transfer~~.

(a) Each Stockholder agrees that he, she or it will not directly or indirectly, prior to the termination of this Agreement: (i) transfer, assign, sell, lend, sell short, gift-over, pledge, encumber, hypothecate, exchange or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution), or offer or solicit to do any of the foregoing, of any or all of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company held by him, her or it, including any additional equity securities and/or any debt or similar securities that are convertible into equity securities of the Company which Stockholder may subsequently acquire, including all additional equity securities which may be issued to Stockholder upon the exercise of any options, warrants or other securities convertible into or exchangeable for securities of the Company (all such securities of such Stockholder, “Subject Securities”) or any right or interest therein, or consent to any of the foregoing (any such action, a “Transfer”), (ii) enter or offer to enter into any derivative arrangement with respect to, or create or suffer to exist any liens or encumbrances with respect to, any or all of the Subject Securities or any right or interest therein, in either case that would reasonably be expected to prevent or delay such Stockholder’s compliance with his, her or its obligations hereunder; (iii) enter of offer to enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer; (iv) grant any proxy, power-of-attorney or other authorization or consent with respect to any Subject Securities with respect to any matter that is, or that could be exercised in a manner, inconsistent with the transactions contemplated by the Contribution Agreement and this Agreement or the provisions thereof and hereof; (v) deposit any Subject Securities into a voting trust, or enter into a voting agreement or arrangement with respect to any Subject Securities; or (vi) enter or offer to enter into any contract or agreement that would be breached by, or take any other action that would reasonably be expected to prevent or delay such Stockholder’s compliance with its obligations hereunder.

(b) Each Stockholder hereby acknowledges and agrees that the Company shall be entitled, during the term of this Agreement, to cause any transfer agent for the Subject Securities to decline to effect any Transfer and to note stop transfer restrictions on the stock register and other records relating to Subject Securities, and each Stockholder agrees to execute and deliver any further documents reasonably requested by the Company in furtherance of the same.

(c) Notwithstanding the foregoing, the restrictions set forth in this Section 2 shall not apply (A) to the exercise of any option, warrant or other securities convertible or exchangeable for securities of the Company or (B) to the following Transfers of Subject Securities by the Stockholder:

(i) if such Stockholder is an individual (A) for nominal consideration or as a gift to any member of such Stockholder’s “immediate family” (defined for purposes of this Agreement as the spouse, parents, lineal descendants, the spouse of any lineal descendant, and brothers and sisters) or a trust for the benefit of such Stockholder or any member of such Stockholder’s immediate family, or (B) upon the death of such Stockholder pursuant to a will or other instrument taking effect upon the death of such Stockholder, or pursuant to the applicable laws of descent and distribution to such Stockholder’s estate, heirs or distributees; and

~~(ii) if the Stockholder is a corporation, partnership, limited liability company or other entity, any Transfer to an Affiliate of the Stockholder if such Transfer is not for value;~~

provided, however, that in the case of any Transfer described in clauses (i) or (ii) of this Section 2(c), it shall be a condition to the Transfer that (x) the transferee executes and delivers to the Company and First Capital, not later than one business day prior to such Transfer, a written agreement that is reasonably satisfactory in form and substance to the Company and First Capital to be bound by all of the terms of this Agreement and the Contribution Agreement (any references to immediate family in the agreement executed by such transferee shall expressly refer only to the immediate family of the Stockholder and not to the immediate family of the transferee) and (y) if the Stockholder is required to file a report under Section 16(a) of the Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial ownership of the Subject Securities or any securities convertible into or exercisable or exchangeable for the Subject Securities, the Stockholder shall include a statement in such report to the effect that, in the case of any Transfer pursuant to Section 2(c)(i) above, such Transfer is being made as a gift or by will or intestate succession or, in the case of any Transfer pursuant to Section 2(c)(ii) above, such Transfer is being made to a shareholder, partner or member of, or owner of a similar equity interest in, the Stockholder and is not a Transfer for value.

(iii) For purposes hereof, “Affiliate” shall mean, with respect to any entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such entity. For purposes hereof, “control” (including the terms “controlled by” and “under common control with”), as used with respect to any entity or person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity or person, whether through the ownership of voting securities or otherwise.

~~SECTION 3.~~ ~~Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital as follows:~~

(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.

(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.

~~(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.~~

~~(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.~~

(e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.

(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).

(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.

(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.

~~(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.~~

(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.

~~SECTION 4.~~ ~~Representations and Warranties of First Capital. First Capital hereby represents and warrants to the Stockholders as follows:~~

(a) First Capital is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland, and First Capital has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement.

(b) This Agreement has been duly authorized, executed and delivered by First Capital, and, assuming this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of First Capital, enforceable against it in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general application affecting enforcement of creditors’ rights generally.

(c) The execution, delivery and performance by First Capital of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transaction contemplated by the Contribution Agreement or First Capital’s ability to observe and perform its material obligations hereunder (a “First Capital Material Adverse Effect”).

(d) The execution, delivery and performance by First Capital of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) Contract or (B) permit, concession, franchise, right or license binding upon First Capital, (ii) result in the creation of Encumbrances (other than Permitted Encumbrances) upon any of the properties or assets of First Capital, (iii) conflict with or result in any violation of any provision of the organizational documents of First Capital, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a First Capital Material Adverse Effect. The consummation by First Capital of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to First Capital or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to First Capital.

~~SECTION 5. Confidentiality.~~

~~(a)~~ ~~Confidentiality by the Stockholders~~. Except as otherwise required by applicable law, each Stockholder agrees to treat and hold as confidential, any confidential or proprietary information of First Capital relating, except for any such information which is generally known to the public or becomes generally known to the public, other than as a result of a disclosure by such Stockholder and not due to the breach of this Agreement (“Confidential Information”), and to refrain from disclosing any Confidential Information, except in accordance with the provisions of this Section 5. Unless otherwise public information, the existence of any business negotiations, discussions, consultations or agreements in progress between the parties hereto, or between First Capital and certain third parties, shall not be released to any form of public media without the prior written consent of First Capital. Each Stockholder agrees that it shall treat all Confidential Information with at least the same degree of care as it accords to its own information of like nature, and each Stockholder represents that it exercises at least reasonable care to protect its own confidential information. Each Stockholder may disclose Confidential Information only to those of its employees, officers, directors, shareholders, partners, members, or owners of a similar equity interest in the Stockholder, or any of Stockholder’s agents or representatives (all such persons or entities, collectively, “Stockholder Representatives”) who (i) need to know such information for the purposes of advising such Stockholder with respect to the Contribution Agreement and the consummation of the transactions contemplated by the Contribution Agreement and (ii) are informed by such Stockholder of the confidential nature of the Confidential Information and the obligations under this Agreement with respect to such Confidential Information. Each Stockholder also agrees to be responsible for enforcing the terms of this letter agreement as to its Stockholder Representatives and maintaining the confidentiality of the Confidential Information and to take such action, legal or otherwise, to the extent necessary to cause them to comply with the terms and conditions of this letter agreement and thereby prevent any disclosure or prohibited use of Confidential Information by any of its Stockholder Representatives.

~~(b)~~ ~~Disclosure Required by Law~~. Notwithstanding the foregoing, the Stockholder or any of the Stockholder’s Representatives may disclose Confidential Information without First Capital’s consent to the extent required by law or legal process (provided that, unless prohibited by law, it first provides prompt notice to First Capital so that First Capital may seek a protective order or other appropriate remedy or consent to the disclosure). In the event the Stockholder or any of the Stockholder’s Representatives are required to so disclose Confidential Information, the Stockholder or such Representative may furnish that portion (and only that portion) of the Confidential Information that such person or entity has been advised by legal counsel that it is legally compelled or otherwise required to disclose, and such person or entity shall use all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so disclosed and, if requested by First Capital, shall use reasonable efforts to assist First Capital in obtaining an order or other assurance that confidential treatment will be accorded to such Confidential Information so disclosed.

~~(c)~~ ~~Stockholder Acknowledgment~~. Each Stockholder also acknowledges and agrees that he, she or it is aware of the restrictions imposed by the United States federal securities laws and other applicable foreign and domestic laws on a person or entity in possession of material non-public information about a public company and that such Stockholder will comply with such laws.

~~SECTION 6.~~ ~~Fiduciary Responsibilities~~. No Stockholder executing this Agreement who is or becomes during the term hereof a director or officer of the Company makes (or shall be deemed to have made) any agreement or understanding herein in his or her capacity as such director or officer. Without limiting the generality of the foregoing, each Stockholder signs solely in his or her capacity as the record owner of such Stockholder’s Subject Securities and nothing herein shall limit or affect any actions taken by such Stockholder (or a designee of such Stockholder) in his or her capacity as an officer or director of the Company in exercising his or her or the Company’s or the Company’s Board of Directors’ rights in connection with the Contribution Agreement or otherwise and such actions shall not be deemed to be a breach of this Agreement.

~~SECTION 7.~~ ~~Termination~~.

~~(a) This Agreement, and all rights and obligations of the parties hereunder, shall terminate immediately upon the earliest to occur of the following:~~

~~(i) that date of the termination of the Contribution Agreement in accordance with its terms;~~

(ii) the later of (A) the date of the last closing of the transactions described in the Contribution Agreement or (B) the first Business Day following the date of the approval by the stockholders of the Company of the full issuance of Transaction Shares having voting rights in excess of 20% to First Capital or its stockholders or Affiliates;

(iii) upon the earlier of (1) 14 days written notice by Stockholder to the Company and First Capital or (2) the day preceding the initial date of the meeting of the Stockholders called to vote on the adoption of the Contribution Agreement, following any modification, waiver or amendment of the Contribution Agreement that has a materially adverse effect on (x) the value of (A) the Subject Securities following the closing of the transactions described in the Contribution Agreement or (B) the consideration to be paid to such Stockholder pursuant to the Contribution Agreement, or (y) the date of the closing of the transactions described in the Contribution Agreement;

~~(iv) the mutual written consent of First Capital and the Stockholders.~~

(b) Except as set forth in Section 6(c), upon termination of this Agreement, except in the case of liability for any willful breach by any party to this Agreement prior to termination from which liability termination shall not relieve any such party, all obligations of the parties under this Agreement will terminate, without any liability or other obligation on the part of any party hereto to any person or entity in respect hereof or the transactions contemplated hereby, and no party shall have any claim against another (and no person shall have any rights against such party), whether under contract, tort or otherwise.

(c) Sections 4 of this Agreement shall survive the termination of this Agreement until the first anniversary of the date of this Agreement. Section 7 of this Agreement shall survive the termination of this Agreement indefinitely.

~~SECTION 8.~~ ~~Expenses. All fees and~~ expenses incurred in connection with this Agreement and the transactions contemplated hereby ~~shall~~will be paid by the party incurring such expenses. As used in this Agreement, “expenses” means the out-of-pocket fees orand expenses ~~whether or not~~of the financial advisor, counsel and accountants incurred in connection with this Agreement and the transactions contemplated ~~by the Contribution Agreement are consummated.~~ hereby and thereby.

~~SECTION 9.~~(l) ~~Miscellaneous~~.

~~(a)~~ ~~Liabilities Several~~Attorney’s Fees. ~~The agreements, obligations, representations and warranties of the Stockholders hereunder are made severally and not jointly.~~

~~(b)~~ ~~Effectiveness of Agreement. The agreements, obligations, representations and warranties of the Stockholders set forth in~~If any party to this Agreement shall ~~not be effective~~bring any action for relief against another arising out of or ~~binding upon any Stockholder until after such time as the Contribution Agreement is executed and delivered by the parties thereto.~~

~~(c)~~ ~~Notices. All notices, consents, waivers and other communications required or permitted by~~in connection with this Agreement, in addition to all other remedies to which the prevailing party may be entitled, the losing party shall be ~~in writing and shall be deemed given~~required to ~~a party when (a) delivered~~pay to the ~~appropriate address by hand~~prevailing party a reasonable sum for attorney’s fees and costs incurred in bringing or ~~by nationally recognized overnight courier service;~~ defending such action and/or (b) transmitted by telecopy or e-mail (with confirmation of transmission) by the transmitting equipment confirmed with a copy delivered as provided in clause (a), in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the person (by name or title) designated below (or to such other address, telecopy number, e-mail address or person as a party may designate by notice to the other parties).

~~If to a Stockholder, to:~~

~~the address set forth on the signature page hereof~~

~~and to:~~

~~PhotoMedex, Inc.~~
~~2300 Computer Drive, Building G~~

~~Willow Grove, PA 19090~~

~~Attention: Dr. Dolev Rafaeli~~

~~Email:dolev@radiancy.com~~

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

~~BEVILACQUA PLLC~~
~~1629 K Street, NW, Suite 300~~

~~Washington, DC 20006~~

~~Attention: Louis A. Bevilacqua, Esq.~~

~~Email: lou@bevilacquapllc.com~~

~~If to the Company or Acquiror, to:~~

~~First Capital Real Estate Trust Incorporated~~

~~60 Broad Street, 34th Floor~~

~~New York NY 10004~~

~~Attention: Suneet Singal~~

~~Email: s@firstcapitalre.com~~

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

~~Ellenoff Grossman & Schole LLP~~
~~1345 Avenue of the Americas~~

~~New York, New York 10105~~
~~Attention: Barry I. Grossman, Esq.~~
~~Facsimile: (212) 370-7889~~

~~(d)~~ ~~Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in~~enforcing any ~~way the meaning or interpretation of this Agreement.~~

~~(e)~~ ~~Counterparts. This Agreement may be executed in one or more counterparts, each~~judgment granted therein, all of which shall be deemed ~~an original~~to have accrued upon the commencement of such action and all of which taken together shall constitute one and the same instrument. This Agreement or any counterpart may be executed and delivered by facsimile copies or delivered by electronic communications by portable document format (.pdf), each of which shall be ~~deemed an original~~paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the ~~other parties.~~

~~(f)~~ ~~Entire Agreement; No Third Party Beneficiaries. This Agreement (including~~recovery of attorney’s fees and costs incurred in enforcing such judgment. For the ~~Exhibits and Schedules hereto) constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties~~purposes of this Section, attorney’s fees shall include, without limitation, fees incurred with respect to the ~~subject matter of this Agreement, including the Original Agreement~~following: (i) post-judgment motions, (ii) contempt proceedings, (iii) garnishment, levy and ~~(b) is not intended to confer, nor shall it confer, upon~~debtor and third party examinations, (iv) discovery, (v) bankruptcy litigation and (vi) any ~~Person other than the parties hereto any legal or equitable rights or remedies or benefits of any nature whatsoever.~~

~~(g)~~ ~~Governing Law~~. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of the laws that might otherwise apply under applicable principles of conflicts of law thereof.appellate proceedings.

~~(h)~~(m) Waiver of Jury Trial. ~~EACH OF~~ THE PARTIES ~~HERETO IRREVOCABLY WAIVES~~EACH WAIVE, TO THE EXTENT PERMITTED BY LAW, ANY ~~AND ALL~~ RIGHT TO TRIAL BY JURY IN ANY ACTION ~~PROCEEDING~~ OR ~~LITIGATION BETWEEN THE PARTIES HERETO ARISING OUT OF OR~~PROCEEDING RELATING TO THIS AGREEMENT.

~~(i)~~ ~~Assignment; Binding Effect~~. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned (in whole or in part) by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, and any such assignment without such consent shall be null and void. No assignment by any party shall relieve such party of any of its obligations hereunder. Subject to the preceding sentences, this Agreement shall be binding upon, and shall inure to the benefit of, and shall be enforceable by the parties hereto and their respective successors and assigns.

~~(j)~~ ~~Severability of Provisions~~. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect, insofar as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

~~(k)~~ ~~Specific Performance, Jurisdiction, Enforcement~~.

(i) The parties agree that irreparable damage for which money damages, even if available, would not be an adequate remedy, if any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. Accordingly, the parties agree that, prior to the valid termination of this Agreement in accordance with Section 7, each party shall be entitled to an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in the federal and state courts located in New York County, New York, this being in addition to any other remedy to which they are entitled at law or in equity. Each party further agrees that no other party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9(k), and each party hereto hereby irrevocably waives any right he, she or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

(ii) Each of the parties irrevocably submits itself to the exclusive jurisdiction of the federal and state courts located in the New York County, New York for the purpose of any action, proceeding or litigation directly or indirectly based upon, relating to or arising out of this Agreement or any of the transactions contemplated by this Agreement or the negotiation, execution or performance hereof or thereof, or any other appropriate form of specific performance or equitable relief, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action, proceeding or ligitation relating to this Agreement or the transactions contemplated by this Agreement in any court other than any of the federal and state courts located in the State of Delaware. Each of the parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action, proceeding or litigation with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve in accordance with this Section 9(k), (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by the applicable law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter of this Agreement, may not be enforced in or by such courts.

(iii) Each of the parties hereby irrevocably consents to service being made through the notice procedures set forth in Section 9(c) and agrees that service of any process, summons, notice or document by personal delivery or by registered mail (return receipt requested and first-class postage prepaid) to the respective addresses set forth in Section 9(c) and on the signature pages hereto shall be effective service of process for any action, proceeding or litigation in connection with this Agreement or the transactions contemplated hereby. Nothing in this Section 9(k) shall affect the right of any party to serve legal process in any other manner permitted by law.

~~(l)~~ ~~Amendment~~. No amendment or modification of this Agreement shall be effective unless it shall be in writing and signed by each of the parties hereto, and no waiver or consent hereunder shall be effective against any party unless it shall be in writing and signed by such party.

[Signature ~~Page Follows]~~

page follows]

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

~~FIRST CAPITAL REAL ESTATE OPERATING~~ ~~PARTNERSHIP, L.P.~~ FC GLOBAL:

~~By: First Capital Real Estate Trust~~FCGlobal Realty Incorporated ~~its~~ ~~general partner~~

By:
Name:		~~Suneet Singal~~Michael R. Stewart
Title:		Chief Executive Officer

~~STOCKHOLDERS:~~Address:	2300 Computer Drive, Building G
	Willow Grove, PA 19090

Fax:
Email: Michael@fcglobalrealty.com

OFI:

Opportunity FundI-SS, LLC
By: OP Fund I Manager, LLC

By:
Name: Kristen Pigman
Title: Director

Address:	2481 Sunrise Boulevard, Suite 200
	Gold River, CA 95670

Fax: 916.853.2805
Email: kris@thepigmancompanies.com

NOTE HOLDERS:


~~Lewis C. Pell~~


~~Yoav Ben-Dror~~


Dr. Dolev Rafaeli


Dennis M. McGrath


~~Katsumi Oneda~~


~~Stephen P. Connelly~~Yoav Ben-Dror

~~SCHEDULE I~~

~~Name and Address~~	~~Type of Security~~	~~Number of Shares~~

~~Lewis C. Pell~~ ~~2300 Computer Drive, Building G~~ ~~Willow Grove, PA 19090~~	~~Common stock~~		~~401,064~~

~~Yoav Ben-Dror~~ ~~2300 Computer Drive, Building G~~ ~~Willow Grove, PA 19090~~	~~Common stock~~		~~299,185~~

~~Dolev Rafaeli~~ ~~2300 Computer Drive, Building G~~ ~~Willow Grove, PA 19090~~	~~Common stock~~		~~149,775~~

~~Dennis M. McGrath~~ ~~2300 Computer Drive, Building G~~ ~~Willow Grove, PA 19090~~	~~Common stock~~		~~51,278~~

~~Katsumi Oneda~~ ~~2300 Computer Drive, Building G~~ ~~Willow Grove, PA 19090~~	~~Common stock~~		~~265,033~~

~~Stephen P. Connelly~~ ~~2300 Computer Drive, Building G~~ ~~Willow Grove, PA 19090~~	~~Common stock~~		~~1,435~~

EXHIBIT A

	Payout Shares	Series C Preferred Stock
Dr. Dolev Rafaeli	3,134,876	4,169,385
Dennis M. McGrath	977,960	1,300,687
Yoav Ben-Dror	1,515,455	2,015,555

~~Exhibit H~~EXHIBIT B

Form of ~~Payout Notes~~Certificate of Designation of Series C Preferred Stock

(See Attached)

NEITHER THIS NOTE NOR THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR STATE LAW OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

~~$[ ].00~~

~~[ ], 201_~~

~~PHOTOMEDEX, INC.~~FC GLOBAL REALTY INCORPORATED

~~SECURED CONVERTIBLE PAYOUT NOTE DUE [ ], 201_~~
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES C PREFERRED STOCK

PURSUANT TO SECTION 78.1955 OF THE
NEVADA REVISED STATUTES

~~FOR VALUE RECEIVED~~~~, PhotoMedex, Inc.,~~
FC Global Realty Incorporated, a Nevada corporation (the “~~Company~~Corporation”), does hereby ~~promises to pay~~certify that, pursuant to the ~~order~~authority contained in its Articles of ~~[ ]~~Incorporation, as amended, and in accordance with the provisions of Section 78.1955 of the Nevada Revised Statutes, the board of directors of the Corporation (the “Board of Directors”) has adopted the following resolution creating the following series of the Corporation’s Series C Preferred Stock and determined the voting powers, designations, powers, preferences and relative, participating, optional, or other special rights, and the qualifications, limitations, and restrictions thereof, of such series:

RESOLVED, that the Board of Directors does hereby provide for the issuance of the following series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:

Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act of 1933, as amended.

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

“Common Stock Equivalents” means any securities of the Corporation or any of its subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Conversion Date” means the date on which approval from the stockholders of the Corporation with respect to the Remediation Agreement and the transactions contemplated thereby, including the issuance of the Conversion Shares, has been obtained.

“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series C Preferred Stock in accordance with the terms hereof.

“Holder” means a holder of shares of Series C Preferred Stock.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Remediation Agreement” means the Remediation Agreement, dated September 24, 2018, between the Corporation, Opportunity Fund I-SS, LLC, Dr. Dolev Rafaeli, Dennis M. McGrath and Yoav Ben-Dror.

“Requisite Holders” means holders of a majority of the outstanding shares of Series C Preferred Stock.

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

“Trading Market” means any of the NYSE, the NYSE MKT, NASDAQ, the OTC Bulletin Board system, the OTCQX market operated by OTC Markets and the OTCQB market operated by OTC Markets Group or any other market on which the Common Stock may be listed or quoted for trading on the date in question.

Section 2. Designation, Amount and Stated Value. The series of preferred stock shall be designated as Series C Preferred Stock, par value $0.01 per share (the “Series C Preferred Stock”), and the ~~principal amount~~number of ~~[ ] ($[ ])~~shares so designated shall be Seven Million Four Hundred Eighty-Five Thousand Six Hundred Twenty-Seven (7,485,627) (which shall not be subject to increase without the written consent of the Requisite Holders). Each share of Series C Preferred Stock shall have a stated value of $1.00 per share (the “~~Principal Amount~~~~”), together with interest as hereinafter provided, on [ ], 201_~~¹ ~~(the “~~~~Maturity Date~~Stated Value”).

~~This Secured Convertible Payout Note (this “~~~~Note~~~~”) is being issued~~Section 3. Dividends. Except for stock dividends or distributions for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Series C Preferred Stock equal (on an as-if-converted-to-Common-Stock basis) to and in ~~connection with~~ the ~~closing~~same form as dividends actually paid on shares of the ~~transactions contemplated by that certain Interest Contribution Agreement, dated March 31, 2017 (the “~~~~Contribution Agreement~~~~”), by~~Common Stock when, as and among First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership, First Capital Real Estate Trust Incorporated, a Maryland corporation, FC Global Realty Operating Partnership, LLC, a Delaware limited liability company, andif such dividends are paid on shares of the ~~Company. All capitalized terms used but not otherwise defined in this Note~~Common Stock. No other dividends shall ~~have the same meanings ascribed to them in the Contribution Agreement.~~be paid on shares of Series C Preferred Stock.

~~By his receipt hereof, the Holder acknowledges and agrees that: (i) the Principal Amount represents, as~~Section 4. Liquidation. Upon any liquidation, dissolution or winding-up of the ~~date hereof,~~Corporation, whether voluntary or involuntary (a “Liquidation”), the ~~full and complete~~Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that a holder of ~~all compensation liabilities owed by~~Common Stock would receive if the ~~Company and its Subsidiaries and affiliates~~Series C Preferred Stock were fully converted to Common Stock immediately prior to such Liquidation, which amount shall be paid to the ~~Holder (“~~~~Compensation Liabilities~~~~”); (ii)~~Holders of the Series C Preferred Stockpari passu with all ~~such Compensation Liabilities are being memorialized~~holders of the Corporation’s outstanding Series D Preferred Stock and in ~~this Note and no other oral or written agreement, document or instrument; and (iii) upon payment in full of all obligations hereunder, the Company shall have repaid all Compensation Liabilities~~preference to the holders of the Corporation’s Common Stock. The Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.

~~Any payments on account of~~Section 5. Voting Rights. Except as otherwise provided herein or as otherwise required by law, the ~~Note~~Series C Preferred Stock shall ~~be applied first to interest and then to principal.~~have no voting rights.

~~Interest on the outstanding Principal Amount shall be paid in: (i) cash or (ii) at the election of the Holder, in restricted shares of the Company’s common stock, par value $.01 per share (“~~~~Common Stock~~~~”) as provided in Article 1(a)~~Section 6. Automatic Conversion. ~~Interest shall be paid at the rate of ten percent (10%) per annum and shall be payable monthly in arrears commencing on [ ], 2017 (each such payment, a “~~~~Monthly Interest Payment~~~~” and each date of such payment, an “~~~~Interest Payment Date~~~~”). Interest shall be computed on the basis of a 360-day year, and any partial periods (other than monthly) shall be computed using the number of days actually elapsed.~~

~~The Principal Amount~~(a) Trigger Event. On the Conversion Date, each share of Series C Preferred Stock plus accrued, but unpaid, dividends thereon shall be ~~mandatorily convertible~~automatically converted (without the payment of additional consideration by the Holder thereof), into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing the Stated Value by the Conversion Price in effect on the Conversion Date. The “Conversion Price” shall initially be equal to $1.00. Such initial Conversion Price, and the rate at which shares of Series C Preferred Stock plus accrued, but unpaid dividends thereon, may be converted into shares of Common Stock, shall be subject to adjustment as provided ~~in Article 1(b).~~

below. Except as aforesaid, the Series C Preferred Stock is not convertible into Common Stock or any other securities of the Corporation.

¹ ~~One year anniversary~~(b) Mechanics of ~~Approval Date.~~

~~The Company’s obligations under this Note are subject to a security interest in all~~Conversion. All Holders of record shall be sent written notice of the ~~Company’s assets, which security interest~~Conversion Date and the place designated for conversion of all such shares of Series C Preferred Stock pursuant to this Section 6. Such notice need not be sent in advance of the occurrence of the Conversion Date. Upon receipt of such notice, each Holder shall surrender his, her or its certificate or certificates for all such shares (or, if such Holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation and its transfer agent to indemnify the Corporation and/or its transfer agent against any claim that may be made against the Corporation and/or its transfer agent on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation or its transfer agent, certificates surrendered for conversion shall be ~~memorialized~~endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation or its transfer agent, duly executed by the registered Holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series C Preferred Stock converted pursuant to Section 6(a), including the rights, if any, to receive notices and vote (other than as a ~~Security Agreement entered into between~~holder of Common Stock), will terminate at the Conversion Date (notwithstanding the failure of the Holder or Holders to surrender the certificates at or prior to such time), except only for the rights of the Holders, upon surrender of their certificate or certificates (or lost certificate affidavit and agreement), to receive the items provided for in the next sentence of this Section 6(b). As soon as practicable after the Conversion Date and the ~~Company as~~surrender of the ~~date hereof (the “~~~~Security Agreement~~~~”), it being acknowledged that~~certificate or certificates (or lost certificate affidavit and agreement) for Series C Preferred Stock, the ~~Holder’s security interest is~~Corporation shall issue and ~~shall be subordinated as provided in Article 3(a) hereof.~~

~~Article 1.~~

~~CONVERSION~~

~~(a)~~ ~~Interest. Should~~deliver to such Holder, or to his, her or its nominees, a certificate or certificates for the ~~Holder elect to have a Monthly Interest Payment paid in~~number of full shares of Common Stock ~~(such~~issuable on such conversion in accordance with the provisions hereof. Such converted Series C Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the “~~Interest Shares~~~~”),~~Corporation may thereafter take such appropriate action (without the ~~Holder shall make such election by written notice delivered~~need for stockholder action) as may be necessary to reduce the ~~Company not less than three (3) NASDAQ Trading Days prior to the applicable Interest Payment Date. The~~authorized number of Interest Shares to be issued to the Holder shall be determined by dividing: (i) the applicable interest payment owed by (ii) the VWAP with respect to on-exchange transactions in Common Stock executed on the NASDAQ during the thirty (30) NASDAQ Trading Days ending five (5) NASDAQ trading days prior to the applicable Interest Payment Date as reported by Bloomberg L.P. Any Interest Shares shall be delivered to the Holder with five (5) Business Days of the applicable Interest Payment Date.

~~(b)~~ ~~Principal. The Principal Amount shall be mandatorily convertible on the Maturity Date into restricted~~ shares of ~~Common Stock (such shares, the “~~~~Principal Shares~~”) which shall be delivered within three (3) Business Days of the Maturity Date. The Number of Principal Shares to be issued to the Holder shall be determined by dividing: (i) the Principal Amount by (ii) a price (the “~~Note Conversion Price~~”) equal to the lower of (A) the Per Share Value or (B) the VWAP with respect to on-exchange transactions in Common Stock executed on the NASDAQ during the thirty (30) NASDAQ Trading Days prior to the Maturity Date as reported by Bloomberg L.P;~~provided, however, that the Note Conversion Price shall (except as adjusted pursuant to Article 1(f)) in no event be less than $1.75 per share (the “~~~~Floor Price~~~~”). In the event that the Note Conversion Price on the Maturity Date is lower than the Floor Price, then the Company may, in~~ its discretion undertaken by a vote of a majority of the disinterested members of the Company’s board of directors, elect to either: (i) pay the Principal Amount in cash to the Holder or (ii) extend the Maturity Date for a period of sixty (60) days, at the conclusion of which the foregoing mechanism for determining the Note Conversion Price and repayment of the Principal Amount shall be determined with finality;~~provided, however~~, that at the conclusion of such sixty (60) day period, no Floor Price shall apply in the determining the Note Conversion Price and the Principal Shares shall be issued within three (3) Business Days of the extended Maturity Date.preferred stock accordingly.

(c) Reservation of Shares Issuable Upon Conversion. The ~~Company~~Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock ~~solely~~ for the sole purpose of issuance upon conversion of ~~this Note,~~the Series C Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of ~~persons~~Persons other than the ~~Holder,~~Holders, not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of ~~this Note.~~the then outstanding shares of Series C Preferred Stock. The ~~Company~~Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly ~~and~~authorized, validly ~~authorized,~~ issued, ~~and~~ fully paid ~~non-assessable.~~and nonassessable.

(d) Fractional Shares. ~~Upon a conversion hereunder, the Company shall not be required to issue stock certificates~~No fractional shares or scrip representing ~~fractions of shares of the Common Stock. All~~ fractional shares shall be ~~rounded~~issued upon the conversion of the Series C Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall round up to the ~~nearest~~next whole ~~number of shares.~~share.

(e) Transfer Taxes and Expenses. The issuance of ~~certificates for shares of the Common Stock~~Conversion Shares on conversion of ~~this Note~~the Series C Preferred Stock shall be made without charge to ~~the~~any Holder ~~thereof~~ for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such ~~certificate,~~Conversion Shares, provided that the ~~Company~~Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such ~~certificate~~Conversion Shares upon conversion in a name other than that of the ~~Holder,~~Holders of such shares of Series C Preferred Stock and the ~~Company~~Corporation shall not be required to issue or deliver such ~~certificates~~Conversion Shares unless or until the ~~person~~Person or ~~persons~~Persons requesting the issuance ~~of such shares upon transfer~~thereof shall have paid to the ~~Company~~Corporation the amount of such tax or shall have established to the satisfaction of the ~~Company~~Corporation that such tax has been paid. The Corporation shall pay all transfer agent fees required for same-day processing and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

Section 7. Certain Adjustments.

~~(f)~~(a) ~~Adjustments for~~ Stock Dividends ~~Splits~~ and ~~Other Capital Transactions~~Stock Splits. If the ~~Company,~~Corporation, at any time ~~from and after~~while the ~~date of this Note and as long as this Note~~Series C Preferred Stock is outstanding: (i) ~~shall pay~~pays a stock dividend ~~effect a stock split~~ or otherwise ~~make~~makes a distribution or distributions ~~on shares of its Common Stock~~ payable in shares of Common Stock on shares of Common Stock or any ~~class~~other Common Stock Equivalents (which, for avoidance of ~~capital stock,~~doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, the Series C Preferred Stock), (ii) ~~subdivide~~subdivides outstanding shares of Common Stock into a larger number of shares, (iii) ~~combine~~combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) ~~issue by~~issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the ~~Company,~~Corporation, then the ~~Note~~ Conversion Price shall be ~~computed on~~multiplied by a fraction of which the ~~applicable measuring date to reflect~~numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such ~~occurrences.~~event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section ~~3(f)~~7(a) shall become effective onimmediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

~~(g)~~(b) Subsequent Rights Offerings. In addition to any adjustments pursuant to ~~Article 1(f)~~Section 7(a) above, if at any time the ~~Company~~Corporation grants, issues or sells any Common Stock Equivalents ~~(as defined below)~~ or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder ofthereof will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of ~~this Note~~such Holder’s Series C Preferred Stock immediately before 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.~~purchase.

~~(h)~~ ~~Pro Rata Distributions~~. During such time as this Note is outstanding, if the Company declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to 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) (a “~~Distribution~~”), at any time after the issuance of this Note, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete Conversion of this Note immediately before the date of which a record is taken for such Distribution, 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 participation in such Distribution.

~~(i)~~(c) Fundamental Transaction. If, at any time while ~~this Note~~the Series C Preferred Stock is outstanding, (i) the ~~Company,~~Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the ~~Company~~Corporation with or into another ~~person,~~Person, (ii) the ~~Company,~~Corporation, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the ~~Company~~Corporation or another ~~person)~~Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the ~~Company,~~Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the ~~Company,~~Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other ~~person~~Person or other ~~persons~~Persons making or party to, or associated or ~~affiliated~~Affiliated with the other ~~persons~~Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of ~~this Note,~~the Series C Preferred Stock, the Holder shall have the right to receive, for each ~~Principal~~Conversion Share ~~or Interest Share, as the case may be,~~ that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (disregarding for such purposes any conversion limitations hereunder), the number of shares of Common Stock of the successor or acquiring corporation or of the ~~Company,~~Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which ~~this Note~~the Series C Preferred Stock is convertible immediately prior to such Fundamental ~~Transaction.~~Transaction (disregarding for such purposes any conversion limitations hereunder). For purposes of any such conversion, the determination of the ~~Note~~ Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the ~~Company~~Corporation shall apportion the ~~Note~~ Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of ~~this Note~~the Series C Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the ~~Company~~Corporation or surviving entity in such Fundamental Transaction shall ~~issue to the Holder~~file a new ~~Note~~Certificate of Designation with the same terms and conditions ~~as this Note that is otherwise~~and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert ~~this Note~~such preferred stock into Alternate Consideration. The ~~Company~~Corporation shall cause any successor entity in a Fundamental Transaction in which the ~~Company~~Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of ~~Company~~the Corporation under this ~~Note and the other Transaction Documents~~Certificate of Designation in accordance with the provisions of this ~~Article 1(d)~~Section 7(c) pursuant to written agreements ~~in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)~~entered into prior to such Fundamental Transaction and shall ~~at the option of the holder of this Note,~~ deliver to the Holder in exchange for ~~this Note~~the Series C Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to ~~this Note~~the Series C Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of ~~this Note~~the Series C Preferred Stock prior to such Fundamental Transaction (disregarding for such purposes any conversion limitations hereunder), and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of ~~this Note~~the Series C Preferred Stock immediately prior to the consummation of such Fundamental Transaction)~~, and which is reasonably satisfactory in form and substance to the Holder.~~. Upon the occurrence of any such 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 ~~Note and the other Transaction Documents~~Certificate of Designation referring to the ~~“Company”~~“Corporation” shall refer instead to the Successor Entity), and may exercise every right and power of the ~~Company~~Corporation and shall assume all of the obligations of the ~~Company~~Corporation under this ~~Note and the other Transaction Documents~~Certificate of Designation with the same effect as if such Successor Entity had been named as the ~~Company~~Corporation herein.

~~(j)~~(d) Calculations. All calculations under this ~~Article 1~~Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this ~~Article 1,~~Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the ~~Company)~~Corporation) issued and outstanding.

~~(k)~~(e) Notice to the Holders.

~~(i)~~ ~~Adjustment to Note Conversion Price~~. Whenever the ~~Note~~ Conversion Price is adjusted pursuant to any provision of this ~~Article 1,~~Section 7, the ~~Company~~Corporation shall promptly deliver to each Holder a notice setting forth the ~~Note~~ Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

~~(ii)~~ ~~Notice to Allow Conversion by Holder~~. If ~~(A)~~(i) the ~~Company~~Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, ~~(B)~~(ii) the ~~Company~~Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, ~~(C)~~(iii) the ~~Company~~Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, ~~(D)~~(iv) the approval of any stockholders of the ~~Company~~Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the ~~Company~~Corporation is a party, any sale or transfer of all or substantially all of the assets of the ~~Company,~~Corporation, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or ~~(E)~~(v) the ~~Company~~Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the ~~Company,~~Corporation, then, in each case, the ~~Company~~Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of ~~this Note,~~the Series C Preferred Stock, and shall cause to be delivered to each Holder at its last address as it shall appear upon the stock books of the ~~Company,~~Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating ~~(x)~~(A) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or ~~(y)~~(B) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, ~~non-public~~nonpublic information regarding the ~~Company~~Corporation or any of its subsidiaries, the ~~Subsidiaries, the Company~~Corporation shall simultaneously file such notice with the Securities and Exchange Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert ~~the Principal Amount and accrued, but unpaid interest thereon~~its Series C Preferred Stock (or any part hereof) during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

~~Article 2.~~Section 8. Redemption. The Series C Preferred Stock is not redeemable other than as otherwise expressly authorized herein.

Section 9. ~~EVENTS OF DEFAULT~~Miscellaneous.

(a) ~~Events of Default Defined~~Notices. ~~The entire unpaid Principal Amount of this Note, together with interest thereon~~Any and all notices or other communications or deliveries to be provided by the Holders hereunder shall ~~on written~~be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at 40 Ramland Road South, Suite 200, Orangeburg, NY 10962, Attention: Secretary, facsimile number 215-657-5161, e-mail address Mpupach@photomedex.com or such other facsimile number, e-mail address or address as the Corporation may specify for such purposes by notice to the ~~Company given~~Holders delivered in accordance with this Section 9(a). Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of such Holder appearing on the books of the Corporation, or if no such facsimile number or address appears on the books of the Corporation, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

(b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Series C Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.

(c) Lost or Mutilated Series C Preferred Stock Certificate. If a Holder’s Series C Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series C Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.

(d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflict of laws thereof.

(e) Amendments; Waiver. This Certificate of Designation may be amended or any provision of this Certificate of Designation may be waived by the Corporation with the affirmative vote at a duly held meeting or written consent of the Requisite Holders. Any waiver by the Corporation or a Holder of a breach of any provision of this ~~Note, forthwith become and~~Certificate of Designation shall not operate as or be ~~due and payable without presentment, demand, protest~~construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders, except that a waiver by the Requisite Holders will constitute a waiver of all Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing. Any action ~~nor obligation~~that is required or permitted to be taken by the Requisite Holders may be taken at any meeting called by any Holder or Holders or by a written consent or action by such Holders in lieu of any such meeting. With respect to any meeting of Holders, unless otherwise specified in this Certificate of Designation, the procedures for calling and holding a meeting of the holder of Common Stock of the Corporation shall be applicable with respect to a meeting of the Holders,mutatis mutandis. The Corporation shall promptly provide to any Holder a list of the other Holders upon the request of any ~~kind,~~Holder, and otherwise provide such cooperation and assistance to any Holder for the purposes of calling and holding a meeting of the Holders as from time to time reasonably requested by a Holder.

(f) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of ~~which~~interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.

(g) Next Trading Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Trading Day, such payment shall be made on the next succeeding Trading Day.

(h) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.

EXHIBIT C

Form of Certificate of Designation of Series D Preferred Stock

(See Attached)

FC GLOBAL REALTY INCORPORATED

CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES D PREFERRED STOCK

PURSUANT TO SECTION 78.1955 OF THE
NEVADA REVISED STATUTES

FC Global Realty Incorporated, a Nevada corporation (the “Corporation”), does hereby ~~expressly waived, if~~certify that, pursuant to the authority contained in its Articles of Incorporation, as amended, and in accordance with the provisions of Section 78.1955 of the Nevada Revised Statutes, the board of directors of the Corporation (the “Board of Directors”) has adopted the following resolution creating the following series of the Corporation’s Series D Preferred Stock and determined the voting powers, designations, powers, preferences and relative, participating, optional, or other special rights, and the qualifications, limitations, and restrictions thereof, of such series:

Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:

“Change in Control Transaction” means the acquisition by any Person of beneficial ownership of more than 50% (on a fully diluted basis) of either (i) the then outstanding shares of Common Stock, taking into account as outstanding for this purpose such Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock or debt, and the exercise of any similar right to acquire such Common Stock or (ii) the combined voting power of the then outstanding voting securities of the Corporation entitled to vote generally in the election of directors.

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

“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series D Preferred Stock in accordance with the terms hereof.

“Holder” means a holder of shares of Series D Preferred Stock.

“Remediation Agreement” means the Remediation Agreement, dated September 24, 2018, between the Corporation, Opportunity Fund I-SS, LLC, Dr. Dolev Rafaeli, Dennis M. McGrath and Yoav Ben-Dror.

“Requisite Holders” means the holders of a majority of the outstanding shares of Series D Preferred Stock.

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

Section 2. Designation, Amount and Stated Value. The series of preferred stock shall be designated as Series D Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), and the number of shares so designated shall be Nine Million Two Hundred Ninety-Four Thousand Four Hundred Fourteen (9,294,414) (which shall not be subject to increase without the written consent of the Requisite Holders). Each share of Series D Preferred Stock shall have ~~occurred~~a stated value of $1.00 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series D Preferred Stock (the “Stated Value”).

Section 3. Dividends. The Holders of shares of Series D Preferred Stock shall receive cumulative dividends,pro rata among such Holders, prior to and in preference to any dividend on outstanding Common Stock, at the per annum rate of 8% of the Stated Value. Dividends on each share of Series D Preferred Stock will accrue daily and be ~~continuing; provided, however, that no notice~~cumulative from and including the date of issuance thereof and shall be payable upon the occurrence of a Liquidation (as defined below) or converted to common stock upon a conversion pursuant to Section 6. The amount of dividends payable will be computed on the basis of a 360-day year of twelve 30-day months, and for any period of less than a month, actual days elapsed over a 30-day month. Holders shall also be entitled to receive, and the Corporation shall pay, dividends on shares of Series D Preferred Stock equal (on an as-if-converted-to-Common-Stock basis regardless of whether the Series D Preferred Stock is then convertible) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock.

Section 4. Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”), the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that a holder of Common Stock would receive if the Series D Preferred Stock were fully converted to Common Stock immediately prior to such Liquidation, which amount shall be paid to the holders of the Series D Preferred Stockpari passu with all holders of the Corporation’s outstanding Series C Preferred Stock and in preference to the holders of the Corporation’s Common Stock. The Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.

Section 5. Voting Rights; Veto Right.

(a) Except as otherwise provided herein or as otherwise required ~~and this Note~~by law, the Series D Preferred Stock shall ~~automatically become due and payable if~~have no voting rights.

(b) As long as any shares of Series D Preferred Stock are outstanding, the holders of the Series D Preferred Stock shall have the right to prohibit or veto the Corporation from entering into any agreement or taking any action with respect to (i) a Change in Control Transaction or (ii) the issuance any equity securities or equity-linked securities at a price per share below $0.6505 subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to Corporation’s Common Stock. The Corporation must notify the holders of the Series D Preferred Stock at least twenty (20) days in advance of the events described in ~~Article 2(a)(iii) through (vi) occurs. An Event~~5(b)(i) and (ii) above and the holder shall exercise its veto right by notifying the Corporation in writing within fifteen (15) days after the receipt of ~~Default shall occur:~~such notice that it is exercising its veto right to prohibit such agreement from being entered into or action from being taken.

Section 6. Automatic Conversion.

(a) Trigger Event. On the Conversion Date, each share of Series D Preferred Stock plus accrued, but unpaid, dividends thereon (the “Aggregate Preference Amount”), shall be automatically converted (without the payment of additional consideration by the Holder thereof), into such number of fully paid and non-assessable shares of Common Stock as is determined by a formula (computed on the Conversion Date) (i) the numerator of which is equal to the Aggregate Preference Amount and (ii) the denominator of which is equal to the Conversion Price. The “Conversion Price” shall initially be equal to $1.00. Such initial Conversion Price, and the rate at which shares of Series D Preferred Stock plus accrued, but unpaid dividends thereon, may be converted into shares of Common Stock, shall be subject to adjustment as provided below. Except as aforesaid, the Series D Preferred Stock is not convertible into Common Stock or any other securities of the Corporation.

(b) Mechanics of Conversion. All Holders of record shall be sent written notice of the Conversion Date and the place designated for conversion of all such shares of Series D Preferred Stock pursuant to this Section 6. Such notice need not be sent in advance of the occurrence of the Conversion Date. Upon receipt of such notice, each Holder shall surrender his, her or its certificate or certificates for all such shares (or, if such Holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation and its transfer agent to indemnify the Corporation and/or its transfer agent against any claim that may be made against the Corporation and/or its transfer agent on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation or its transfer agent, certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation or its transfer agent, duly executed by the registered Holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series D Preferred Stock converted pursuant to Section 6(a), including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Conversion Date (notwithstanding the failure of the Holder or Holders to surrender the certificates at or prior to such time), except only for the rights of the Holders, upon surrender of their certificate or certificates (or lost certificate affidavit and agreement), to receive the items provided for in the next sentence of this Section 6(b). As soon as practicable after the Conversion Date and the surrender of the certificate or certificates (or lost certificate affidavit and agreement) for Series D Preferred Stock, the Corporation shall issue and deliver to such Holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof. Such converted Series D Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of its preferred stock accordingly.

(c) Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series D Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders, not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Series D Preferred Stock. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

(d) Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Series D Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall round up to the next whole share.

(e) Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of the Series D Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Series D Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all transfer agent fees required for same-day processing and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

Section 7. Certain Adjustments.

(a) Stock Dividends and Stock Splits. If the Corporation, at any time while the Series D Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, the ~~Principal Amount~~Series D Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

(b) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, if at any time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder thereof will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Series D Preferred Stock immediately before 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.

(c) Fundamental Transaction. If, at any time while the Series D Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any ~~interest~~compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or Affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of the Series D Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (disregarding for such purposes any conversion limitations hereunder), the number of shares of Common Stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which the Series D Preferred Stock is convertible immediately prior to such Fundamental Transaction (disregarding for such purposes any conversion limitations hereunder). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of the Series D Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation in accordance with the provisions of this Section 7(c) pursuant to written agreements entered into prior to such Fundamental Transaction and shall deliver to the Holder in exchange for the Series D Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Series D Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of the Series D Preferred Stock prior to such Fundamental Transaction (disregarding for such purposes any conversion limitations hereunder), and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of the Series D Preferred Stock immediately prior to the consummation of such Fundamental Transaction). Upon the occurrence of any such 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 Designation referring to the “Corporation” 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 Designation with the same effect as if such Successor Entity had been named as the Corporation herein.

(d) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.

(e) Notice to the Holders. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. If (i) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (ii) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (iii) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (iv) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (v) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of the Series D Preferred Stock, and shall cause to be delivered to each Holder at its last address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (A) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (B) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, nonpublic information regarding the Corporation or any of its subsidiaries, the Corporation shall simultaneously file such notice with the Securities and Exchange Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert its Series D Preferred Stock (or any part hereof) during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

Section 8. Redemption. The Series D Preferred Stock is not redeemable other than as otherwise expressly authorized herein.

Section 9. Miscellaneous.

(i) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at 40 Ramland Road South, Suite 200, Orangeburg, NY 10962, Attention: Secretary, facsimile number 215-657-5161, e-mail address Mpupach@photomedex.com or such other facsimile number, e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this ~~Note when,~~Section 9(a). Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of such Holder appearing on the books of the Corporation, or if no such facsimile number or address appears on the books of the Corporation, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

(j) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Series D Preferred Stock at the time, place, and rate, and in the ~~manner (i.e., cash~~coin or ~~Common Stock) as~~currency, herein prescribed.

(k) Lost or Mutilated Series D Preferred Stock Certificate. If a Holder’s Series D Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the ~~same~~Corporation shall ~~become due pursuant~~execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series D Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the ~~terms hereof; or~~Corporation.

(l) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflict of laws thereof.

~~(ii) if~~(m) Amendments; Waiver. This Certificate of Designation may be amended or any provision of this Certificate of Designation may be waived by the ~~Company~~Corporation with the affirmative vote at a duly held meeting or written consent of the Requisite Holders. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall ~~violate~~not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders, except that a waiver by the Requisite Holders will constitute a waiver of all Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing. Any action that is required or permitted to be taken by the Requisite Holders may be taken at any meeting called by any Holder or Holders or by a written consent or action by such Holders in lieu of any such meeting. With respect to any meeting of Holders, unless otherwise specified in this Certificate of Designation, the procedures for calling and holding a meeting of the holder of Common Stock of the Corporation shall be applicable with respect to a ~~material extent~~meeting of the Holders,mutatis mutandis. The Corporation shall promptly provide to any Holder a list of the other Holders upon the request of any Holder, and otherwise provide such cooperation and assistance to any Holder for the purposes of calling and holding a meeting of the Holders as from time to time reasonably requested by a Holder.

(n) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.

(o) Next Trading Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Trading Day, such payment shall be made on the next succeeding Trading Day.

(p) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the ~~representations, warranties~~provisions hereof.

EXHIBIT D

Form of Registration Rights Agreement

(See Attached)

REGISTRATION RIGHTS AGREEMENT

ThisREGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of September 24, 2018, by and among FC Global Realty Incorporated, a Nevada corporation (the “Company”), Opportunity Fund I-SS, LLC, a Delaware limited liability company (“OFI”), and Dolev Rafaeli, Dennis M. McGrath and Yoav Ben-Dror (each a “Note Holder” and, collectively the “Note Holders”).

RECITALS

A. On the date hereof, the Company, OFI and the Note Holders entered into a remediation agreement (the “Remediation Agreement”), pursuant to which the Company has agreed, upon the terms and subject to the conditions set forth in the Remediation Agreement, to issue (i) to the to the Note Holders shares of the Company’s Series C Preferred Stock, $0.001 par value per share (the “Series C Preferred Stock”), which are convertible into shares of the Company’s Common Stock, $0.001 par value per share (the “Common Stock”), and (ii) to OFI shares of the Company’s Series D Preferred Stock, $0.001 par value per share (the “Series D Preferred Stock”), which are convertible into shares of Common Stock.

B. In accordance with the terms of the Remediation Agreement, the Company has agreed to provide certain registration rights for shares of Common Stock underlying the Series C Preferred Stock and Series D Preferred Stock under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable state securities laws.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Remediation Agreement will have the respective meanings given such terms in the Remediation Agreement. As used in this ~~Note~~Agreement, the following terms have the respective meanings set forth in this Section 1 and other terms are defined throughout this Agreement:

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

“Business Combination” means the business combination referred to in clause (B) of the definition of Registrable Securities.

“Commission” means the United States Securities and ~~such violation or breach shall continue for thirty (30) days after~~Exchange Commission.

“Commission Comments” means written ~~notice of such breach shall been~~comments pertaining solely to Rule 415 which are received by the Company from the ~~Holder;~~Commission to a filed Registration Statement, which either (i) requires the Company to limit the number of Registrable Securities which may be included therein to a number which is less than the number sought to be included thereon as filed with the Commission or (ii) requires the Company to either exclude Registrable Securities held by specified Holders or deem such Holders to be underwriters with respect to Registrable Securities they seek to include in such Registration Statement.

~~(iii) if the Company shall consent~~“Effective Date” means, as to ~~the appointment of~~ a receiver, trustee or liquidator of itself or of a substantial part of its property, or shall admit in writing its inability to pay its debts generally as they become due, or shall make a general assignment for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or an answer seeking reorganization in a proceeding under any bankruptcy law (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Company in any such proceeding, or shall by voluntary petition, answer or consent, seek relief under the provisions of any other now existing or future bankruptcy or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its or their creditors, or shall, in a petition in bankruptcy filed against it or them be adjudicated a bankrupt, or the Company or its board of directors or a majority of its stockholders shall vote to dissolve or liquidate the Company; or

(iv) if an involuntary petition shall be filed against the Company seeking relief against the Company under any now existing or future bankruptcy, insolvency or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its or their creditors, and such petition shall not be vacated or set aside within ninety (90) days from the filing thereof; or

(v) if a court of competent jurisdiction shall enter an order, judgment or decree (not subject to appeal) appointing, without consent of the Company, a receiver, trustee or liquidator of the Company, or of all or any substantial part of the property of the Company, or approving a petition filed against the Company seeking a reorganization or arrangement of the Company under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof, or any substantial part of the property of the Company shall be sequestered; and such order, judgment or decree shall not be vacated or set aside within ninety (90) days fromRegistration Statement, the date ofon which such Registration Statement is first declared effective by the ~~entry thereof; or~~

(vi) if, under the provisions of any law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Company or of all or any substantial part of the property of the Company and such custody or control shall not be terminated within ninety (90) days from the date of assumption of such custody or control.

~~Article 3.~~

~~SUBORDINATION~~Commission.

“Effectiveness Date” means (a) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a), the earlier of: (i) the 150^th day following the Filing Date and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that the initial Registration Statement will not be reviewed or is no longer subject to further review and comments; (b) with respect to any additional Registration Statements required to be filed pursuant to Section 2(a), the earlier of: (i) the 120^th day following the applicable Filing Date for such additional Registration Statement(s) and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that such additional Registration Statement(s) will not be reviewed or is no longer subject to further review; (c) with respect to a Registration Statement required to be filed under Section 2(b), the earlier of: (i) the 120^th day following the Filing Date, and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that the Registration Statement will not be reviewed or is no longer subject to further review and comments; and (d) with respect to any additional Registration Statements required to be filed solely due to SEC Restrictions, the earlier of: (i) the 120^th day following the applicable Restriction Termination Date and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that such Registration Statement will not be reviewed or is no longer subject to further review and comments. Notwithstanding the foregoing, the Effectiveness Date shall be tolled (i.e., it shall be extended) during such time as the Company is actively pursuing a Business Combination.

“Effectiveness Period” means, as to any Registration Statement required to be filed pursuant to this Agreement, the period commencing on the Effective Date of ~~Subordination. The~~such Registration Statement and ending on (a) the date that all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders of the Registrable Securities included therein, or (b) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders without restriction pursuant to Rule 144 as determined by the counsel to the Company ~~for itself, its successors~~pursuant to a written opinion letter to such effect, addressed and ~~assigns, covenants and agrees,~~acceptable to the Company’s transfer agent and the ~~Holder by his acceptance~~affected Holders.

“Exchange Act” means the Securities Exchange Act of ~~this Note likewise covenants and agrees, that the payment of the Principal Amount of and interest on this Note is hereby expressly subordinated~~1934, as amended.

“Filing Date” means (a) with respect to the ~~extent and in~~initial Registration Statement required to be filed pursuant to Section 2(a), the ~~manner hereinafter set forth,~~30^th day following the date hereof; (b) with respect to any additional Registration Statements required to be filed pursuant to Section 2(a), the prior payment in full of all Senior Indebtedness, as hereinafter defined. The provisions of this Article 3(a) shall constitute a continuing offer to all persons who, in reliance upon such provision, become holders of, or continue to hold, Senior Indebtedness, and such provisions are made30^th day following the Effective Date for the ~~benefit~~last Registration Statement filed pursuant to this Agreement under Section 2(a); (c) with respect to a Registration Statement required to be filed under Section 2(b), the 30^th day following the date on which the Company becomes eligible to utilize Form S-3 to register the resale of Common Stock; and (d) with respect to any additional Registration Statements required to be filed due to SEC Restrictions, the ~~holders of Senior Indebtedness, and~~30^thday following the applicable Restriction Termination Date. Notwithstanding the foregoing, the Filing Date shall be tolled (i.e., it shall be extended) during such ~~holders are hereby made obligees hereunder~~time as the ~~same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions. As used in this Article 3,~~Company is actively pursuing a Business Combination.

“FINRA” means the ~~term “Company” shall include all Subsidiaries who are, or whose assets are, encumbered by Senior Indebtedness.~~Financial Industry Regulatory Authority, Inc.

~~(b)~~ ~~Company Not to Make Payments with Respect to Note in Certain Circumstances~~.

~~(i) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration~~“Holder” or ~~otherwise, all principal thereof and premium, if any, and interest thereon shall first be paid in full, or such payment duly provided for in cash or in a manner satisfactory to~~“Holders” means the holder or holders, as the case may be, from time to time of ~~such Senior Indebtedness, before any payment is made by~~Registrable Securities and, if other than OFI or the ~~Company on account of~~Note Holders, a Person to whom the Principal Amount of or interest on this Note; provided, however, that nothing in this Article 3 shall impair or otherwise affect the right and ability of the Company to issue Common Stock upon conversion of the Principal Amount of and interest on this Noterights hereunder have been properly assigned pursuant to ~~Article 1 of this Note.~~Section 7 hereof.

~~(ii) In~~“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

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

“Prospectus” means the ~~event~~prospectus included in a Registration Statement (including, without limitation, a prospectus that ~~notwithstanding~~includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the ~~provision of this Article 3(b)~~Securities Act), ~~the Company shall make~~as amended or supplemented by any ~~payment~~prospectus supplement, with respect to the ~~Holder on account~~terms of the ~~Principal Amount~~offering of ~~or interest on this Note after the happening of a default in payment~~any portion of the ~~principal~~Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

“Registrable Securities” means: (i) all of the shares of Common Stock then issued and issuable upon conversion in full of the Series C Preferred Stock issuable to the Note Holders under the Remediation Agreement (assuming on such date the shares of Series C Preferred Stock are converted in full without regard to any conversion limitations therein), (ii) all of the shares of Common Stock then issued and issuable to OFI under the Remediation Agreement, including upon conversion in full of the Series D Preferred Stock issuable to OFI under the Remediation Agreement (assuming on such date the shares of Series D Preferred Stock are converted in full without regard to any conversion limitations therein), all other shares of Common Stock held by OFI, and all shares of Common Stock issuable to OFI upon conversion in full of the Series A Convertible Preferred Stock held by OFI, and (iii) any securities issued or ~~premium, if~~issuable upon any stock split, dividend or ~~interest on, Senior Indebtedness~~other distribution, recapitalization or ~~after receipt by the Company~~similar event, or any price adjustment as a result of ~~written notice of an event of default~~such stock splits, reverse stock splits or similar events with respect to any ~~Senior Indebtedness~~of the securities referenced in (i) or (ii) above. Notwithstanding the foregoing, a security shall cease to be a Registrable Security for purposes of this Agreement from and after ~~written notice~~such time as (A) the Holder of such ~~default or event of default is given~~security may resell such security without restriction under Rule 144, as determined by the ~~Company~~counsel to the ~~Holder, then unless~~Company pursuant to a written opinion letter to such effect, addressed and ~~until~~acceptable to the Company’s transfer agent and the affected Holders, or (B) such ~~default or event of default shall have been cured or waived or shall have ceased to exist, such payment shall be held by the Holder in trust~~security is exchanged for the ~~benefit~~security of ~~and shall be paid forthwith over and delivered to,~~another entity in connection with a business combination involving the ~~holders of Senior Indebtedness (pro rata as to~~Company that is approved by each of such holders on the basis of the respective amounts of Senior Indebtedness held by them) or their representative or the trustee under the indenture or other agreement (if any) pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in accordance with the terms of such Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness.

~~(c)~~ ~~Note Subordinated to Prior Payment of all Senior Indebtedness on Dissolution, Liquidation, or Reorganization of Company~~. Upon any distribution of assets of the Company upon any dissolution, winding up, liquidation, or reorganization of the Company (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise):

(i) The holders of all Senior Indebtedness shall first be entitled to receive payment in full of the principal thereof, premium, if any, and interest due thereon before the Holder is entitled to receive any payment on account of the Principal Amount of or interest on this Note (other than payment of shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which stock and securities are subordinated to the payment of all Senior Indebtedness and securities received in lieu thereof which may at the time be outstanding); and

(ii) Any payment or distribution of assets of the Company of any kind or character whether in cash, property or securities (other than equity of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which stock and securities are subordinated to the payment of all Senior Indebtedness and securities received in lieu thereof which may at the time be outstanding), to which the Holder would be entitled except for the provisions of this Article 3, shall be paid by the liquidating trustee or agent or other person making such payment of distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or other trustee or agent, directly to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution or provision therefor to the holders of such Senior Indebtedness.

(iii) In the event that notwithstanding the foregoing provision of this Article 3, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than equity of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which stock and securities are subordinated to the payment of all Senior Indebtedness and securities received in lieu thereof which may at the time be outstanding), shall be received by the Holder on account of the Principal Amount of or interest on this Note before all Senior Indebtedness is paid in full, or effective provision made for its payment or distribution, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Senior Indebtedness remaining unpaid or unprovided for or their representative or representatives, or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, for application to the payment of such Senior Indebtedness until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution or provision therefor to the holders of such Senior Indebtedness.

~~(d)~~ ~~Holder to be Subrogated to Right of Holders of Senior Indebtedness~~. Subject to the payment in full of all Senior Indebtedness, the Holder shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets of the Company applicable to the Senior Indebtedness until all amounts owing on this Note shall be paid in full, and, for the purpose of such subrogation, no payments or distributions to the holders of the Senior Indebtedness by or on behalf of the Company or by or on behalf of the Holder by virtue of this Article 3 which otherwise would have been made to the holders of this Note shall, as between the CompanyOFI and the ~~Holder, be deemed to be payment~~Note Holders and covered by ~~the Company to or~~an effective registration statement on account of the Senior Indebtedness, it being understood that the provisions of this Article 3 are, and are intended solely, for the purpose of defining the relative rights of the Holder, on the one hand, and the holders of the Senior Indebtedness, on the other hand.Form S-4.

~~(e)~~ ~~Definition of Senior Indebtedness. The term~~ “~~Senior Indebtedness~~” means the principal of and premium, if any, and interest on the following: (i) all indebtedness and obligations (other than under this Note) that are created, assumed or guaranteed by the Company existing after the Closing or that are Assumed Liabilities, that are (A) for money borrowed or (B) secured by purchase money mortgages or other similar security interests given by the Company or any subsidiary on real or personal property, (ii) all obligations of the Company existing on or after the Closing or that are Assumed Liabilities, as lessee under a lease of real or personal property, which in accordance with generally accepted accounting principles have been capitalized, unless, with respect to any indebtedness or obligations described in clause (i) or (ii) of this Article 3(e), the instrument creating or evidencing such indebtedness expressly provides that such indebtedness is not superior in right of payment of this Note, (iii) all indebtedness or obligations of a kind not described in said clause (i) or (ii) which were incurred or guaranteed by the Company after the Closing in connection with the acquisition of an existing business or assets, whether by means of a merger, consolidation, stock acquisition or acquisition of all or part of the assets of a corporation, partnership, limited lability company, business trust, sole proprietorship or other entity, or otherwise, and (iv) any deferrals, renewals, extensions or refundings of any of the foregoing, unless, in the case of any particular indebtedness or obligation or renewal, extension or refunding thereof, under the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, such indebtedness or other obligation or such renewal, extension or refunding thereof is not superior in right of payment to this Note. Senior Indebtedness shall not include indebtedness incurred in the ordinary course of business for goods, materials, or services, any obligations of the Company under, or in respect of, leases other than as hereinbefore described or any obligations of the Company that arose prior to the Closing unless such obligations constitute Assumed Liabilities. There are no restrictions on the right of the Company to incur Senior Indebtedness.

~~Article 4.~~
~~REGISTRATION RIGHTS~~

~~The Company hereby grants the following registration rights to the Holder.~~

~~(a)~~ ~~Registration Statement~~. ~~The Company shall file with the Securities and Exchange Commission (the “~~~~SEC~~~~”) not later than thirty (30) days after the date of this Note a registration statement on an appropriate form (the “~~Registration Statement”) means the initial registration statement required to be filed in accordance with Section 2(a) and any additional registration statements required to be filed under this Agreement, including in each case the Prospectus, amendments and supplements to such registration statements or Prospectus, including pre- and post- effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference therein.

“Required Holders” means the Holders of at least a majority of the Registrable Securities.

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

“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

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

“Trading Day” means: (i) a day on which the Common Stock is traded on a Trading Market or (ii) if the Common Stock is not quoted on any Trading Market, a day on which the Common Stock is quoted in the over the counter market as reported by the Pink Sheets LLC (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i) and (ii) hereof, then Trading Day shall mean a Business Day.

“Trading Market” means any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, the OTC Bulletin Board system, the OTCQX market operated by OTC Markets and the OTCQB market operated by OTC Markets Group, or any other market on which the Common Stock of the Company is listed or quoted for trading on the date in question.

2. Registration.

(a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement required to be filed under this Agreement shall be filed on Form S-1 (or on such other form appropriate for such purpose) and contain (except if otherwise required pursuant to written comments received from the ~~Principal Shares and~~Commission upon a review of such Registration Statement, other than as to the ~~Interest Shares (collectively,~~characterization of any Holder as an underwriter, which shall not occur unless such Holder consents in writing to such characterization) the “~~Shares~~~~”) issuable upon conversion~~“Plan of Distribution” attached hereto asAnnex A. The Company shall cause each Registration Statement required to be filed under this ~~Note~~Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its commercially reasonable efforts to keep each such Registration Statement continuously effective during its entire Effectiveness Period. By 5:00 p.m. (Eastern time) on the Business Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If for any reason other than due solely to SEC Restrictions (as defined below), a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415.

(b) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall file a Registration Statement on Form S-3 covering all Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause ~~the~~such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective ~~within one hundred twenty (120) days~~under the Securities Act as soon as possible thereafter, but in any event by the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur unless such Holder consents in writing to such characterization) the “Plan of Distribution” attached hereto asAnnex A. The Company shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (Eastern time) on the Business Day immediately following the ~~date hereof.~~Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).

(c) Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission (it being understood that the Company will permit the Holders and counsel to the Holders to review and comment on such responses and any related amendments to the Registration Statement and incorporate any and all reasonable comments of the Holders and counsel to the Holders relating thereto) in which the Company uses its commercially reasonable efforts to cause as many Registrable Securities for as many Holders as possible to be included in the Registration Statement filed pursuant to Section 2(a) without characterizing any Holder as an underwriter unless such Holder consents in writing to such characterization (and in such regard uses its commercially reasonable efforts to cause the Commission to permit any Holder or its counsel to participate in Commission conversations on such issue together with the Company’s counsel, and timely conveys relevant information concerning such issue with the Holders or their counsel) (the day that such discussions and responses are concluded shall be referred to as the “Tolling Date”), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case as the Commission may require in order for the Commission to allow such Registration Statement to become effective;provided, that in no event may the Company characterize any Holder as an underwriter unless such Holder consents in writing to such characterization (collectively, the “SEC Restrictions”). Unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(c) shall be allocated among the Registrable Securities of the Holders on a pro rata basis. The required Effectiveness Date for such Registration Statement will be tolled until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions if such Registrable Securities cannot at such time be resold by the Holders thereof without restrictions pursuant to Rule 144 (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 2 shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144 so that the Company will be required to file with and cause to be declared effective by the Commission such additional Registration Statements in the time frames set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities. For the avoidance of doubt, the time period starting from the Tolling Date and ending with the Restriction Termination Date shall be excluded in calculating the applicable Effectiveness Date.

(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement asAnnex B(a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).

(e) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein, or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date or if by the first Business Day immediately following the Effective Date in which the Commission accepts filings on its EDGAR database, the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with the terms hereof (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company, in the best interest of the Company and otherwise required (a “~~Grace Period~~~~”);~~~~provided,~~ that the Company shall promptly: (i) notify the Holder in writing of the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public informationprior to the ~~Holder)~~expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days during any 12-month period, which need not be consecutive (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the ~~Grace Period will begin,~~date on which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: on the last day of each 30-day period after each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and ~~(ii) use commercially reasonable efforts~~not as a penalty, equal to ~~resolve any issue that makes disclosure~~1.0% of the ~~material, non-public information not~~product obtained by multiplying (x) $1.00 by (y) the number of Registrable Securities held by such Holder (such product being the “Investment Amount”). The parties agree that in no event will the ~~best interests~~Company be liable for liquidated damages under this Agreement in excess of 1.0% of the ~~Company.~~Investment Amount in any single month and that the maximum aggregate liquidated damages payable to the Holders under this Agreement shall be ten percent (10%) of the Investment Amount. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of each 30-day period prior to the cure of an Event, and shall cease to accrue (unless earlier cured) upon the expiration of the Effectiveness Period.

~~(b)~~3. Registration Procedures. In connection with the ~~Registration Statement, the Company will:~~Company’s registration obligations hereunder:

(a) The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto in which the “Selling Stockholder” section thereof differs from the disclosure received from a Holder in its Selling Holder Questionnaire (as amended or supplemented). The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto in which it (i) ~~Prepare~~characterizes any Holder as an underwriter, unless such Holder consents in writing to such characterization, (ii) excludes a particular Holder due to such Holder refusing to be named as an underwriter, or (iii) reduces the number of Registrable Securities being registered on behalf of a Holder except pursuant to, in the case of subsection (iii), the Commission Comments, without, in each case, such Holder’s express written authorization, unless such reduction is made pursuant to Section 2(c) hereof. The Company shall also ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading.

(b) The Company shall (i) prepare and file with the ~~SEC~~Commission such amendments, ~~and supplements~~including post-effective amendments, to ~~the~~each Registration Statement and the ~~prospectus~~Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that would not result in the disclosure to the Holders of material and non-public information concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the ~~Holder until~~Registration Statement(s) and the disposition of all Registrable Securities covered by each Registration Statement.

(c) The Company shall notify the ~~Shares owned~~Holders as promptly as reasonably possible (and, in the case of (i)(A) below, not less than three Trading Days prior to such filing and, in the case of (v) below, not less than three Trading Days prior to the financial statements in any Registration Statement becoming ineligible for inclusion therein) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution, but not information which the Company believes would constitute material and non-public information); and (C) with respect to each Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(d) The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Holders of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.

(e) The Company shall provide to the Holders and their counsel with drafts of each Registration Statement and each amendment thereto within a reasonable time in advance of the filing of the same with the Commission such that the Holders and their counsel may review and comment on each such Registration Statement and each amendment thereto and the Company shall incorporate all reasonable comments received from the Holders and their counsel with respect to such drafts prior to filing the same with the Commission. The Company shall furnish to the Holders, without charge and at the option of the Company in electronic format, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by the Holders (including those previously furnished) promptly after the filing of such documents with the Commission.

(f) The Company shall promptly deliver to the Holders, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as the Holders may reasonably request. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such ~~Holder may be resold without restriction under the Securities Act;~~Prospectus and any amendment or supplement thereto.

(g) Prior to any public offering of Registrable Securities, the Company shall register or qualify such Registrable Securities for offer and sale under the securities or Blue Sky laws of all jurisdictions within the United States as any Holder may request, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statements;provided,however, in connection with any such registration or qualification, the Company shall not be required to (i) qualify to do business in any jurisdiction where the Company would not otherwise be required to qualify, (ii) ~~Immediately~~subject itself to general taxation in any such jurisdiction, (iii) file a general consent to service of process in any jurisdiction, or (iv) make any change to the Company’s articles of incorporation or bylaws.

(h) The Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement(s), which certificates shall be free, to the extent permitted by the Remediation Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request.

(i) Upon the occurrence of any event contemplated by Section 3(c) (v), as promptly as reasonably possible, the Company shall prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(j) The Company shall notify the Holders ~~when the prospectus included~~ in ~~the Registration Statement is required to be delivered under the Securities Act of 1933, as amended (the “~~~~Securities Act~~~~”),~~writing of the happening of any event, as promptly as practicable after becoming aware of ~~which the Company has knowledge~~such event, as a result of which the prospectus ~~contained~~included in ~~such~~a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, ~~not misleading~~ in the light of the circumstances ~~then existing.~~under which they were made, not misleading (provided that in no event shall such notice contain any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission. The Company shall also promptly notify the Holders in writing when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective.

(k) If any Holder is required under applicable securities laws to be described in the Registration Statement as an underwriter, at the reasonable request of such Holder, the Company ~~notifies~~shall furnish to such Holder, on the date of the effectiveness of the Registration Statement and thereafter from time to time on such dates as a Holder may reasonably request: (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holders, ~~to suspend~~and (ii) an opinion, dated as of such date, of counsel representing the ~~use~~Company for purposes of ~~any prospectus until the requisite changes~~such Registration Statement, in form, scope and substance reasonably acceptable to such ~~prospectus have~~counsel and as is customarily given in an underwritten public offering, addressed to the Holders.

(l) The Company shall hold in confidence and not make any disclosure of information concerning a Holder provided to the Company unless: (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made ~~then~~generally available to the ~~Holders~~public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, ~~suspend use~~upon learning that disclosure of such ~~prospectus. In~~information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such ~~event,~~Holder and allow such Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.

(m) The Company ~~will~~shall use its commercially reasonable efforts to ~~update~~cause all of the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(m).

(n) The Company shall cooperate with the Holders who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend to the extent permitted by the Remediation Agreement) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Holders may reasonably request and registered in such names as the Holders may request.

(o) If requested by a Holder, the Company shall as soon as practicable: (i) incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus ~~as promptly as is practicable.~~supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.

4. Registration Expenses.

~~(c)~~ ~~Provision of Documents etc~~. ~~In connection with the Registration Statement, the Holder will furnish~~(a) All fees and expenses incident to the ~~Company in writing such information and representation letters with respect to itself and the proposed distribution by it as reasonably shall be necessary in order to assure~~performance of or compliance with federal and applicable state securities laws. The Company may require the Holder, upon five business days’ notice, to furnish to the Company a certified statement as to, among other things, the number of Shares and the number of other shares of the Company’s Common Stock beneficially owned by such Holder and the person that has voting and dispositive control over such shares. The Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act, if applicable, in connection with sales of Shares pursuant to the Registration Statement.

~~(d)~~ ~~Expenses.All expenses incurred~~this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in ~~complying with this article, including,~~the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed or quoted for trading, (B) with respect to filings with FINRA by any underwriter’s counsel for compensation review pursuant to FINRA Rule 5110, and (C) in compliance with applicable state securities or Blue Sky laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by a Holder), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel ~~and independent public accountants~~ for the Company, ~~fees of transfer agents~~(v) Securities Act liability insurance, if the Company so desires such insurance, and ~~registrars are called “~~~~Registration Expenses~~~~.” All underwriting discounts and selling commissions applicable to the sale of the Shares, including any~~(vi) fees and ~~disbursements~~expenses of ~~any counsel to~~all other Persons retained by the ~~Holder, are called “~~~~Selling Expenses~~~~.” The~~ Company ~~will pay all Registration Expenses~~ in connection with the ~~Registration Statement. Selling Expenses~~consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the ~~Registration Statement~~consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be ~~borne~~responsible for any broker or similar commissions incurred by ~~the applicable~~any Holder.

~~(e)~~5. Indemnification ~~and Contribution~~.

~~(i)~~(a) Indemnification by the Company. The Company ~~will, to the extent permitted by law,~~shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the ~~Holder,~~officers, directors, agents, investment advisors, partners, members and ~~as applicable,~~employees of each ~~officer~~ of ~~Holder,~~them, each ~~director of Holder, and each other person, if any,~~Person who controls any such Holder ~~within~~(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, or liabilities, ~~joint or several, to which such Holder or such other person (a~~costs (including, without limitation, reasonable costs of preparation and reasonable attorneys’ fees) and expenses (collectively, “~~controlling person~~Losses”) ~~may become subject under the Securities Act or otherwise, insofar~~, as ~~such losses, claims, damages or liabilities (or actions in respect thereof) (“~~~~Claims~~~~”) arise~~incurred, arising out of or ~~are based upon~~relating to (i) any untrue ~~statement~~ or alleged untrue statement of ~~any~~a material fact contained in ~~the~~any Registration Statement, ~~at the time~~any Prospectus or any form of ~~its effectiveness,~~prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or ~~final prospectus contained therein,~~in any blue sky application or other document executed by the Company specifically for that purpose or based upon written information furnished by the Company filed in any ~~amendment~~state or ~~supplement~~other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof (any such application, document or ~~arise~~information herein called a “Blue Sky Application”), or arising out of or ~~are based upon the~~relating to any omission or alleged omission ~~to state therein~~of a material fact required to be stated therein or necessary to make the statements therein ~~not misleading~~(in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances ~~when made, and will, subject~~under which they were made) not misleading, except to the ~~limitations herein,~~extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus, or such Blue Sky Application or in any amendment or supplement thereto, (ii) any violation by the Company or its agents of any rule or regulation promulgated under the Securities Act applicable to the Company or its agents and relating to action or inaction required of the Company in connection with such registration; or (iii) any failure to register or qualify the Registrable Securities included in any such Registration Statement in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company will undertake such registration or qualification on such Holder’s behalf and will reimburse such Holder, and each such ~~controlling person for any legal~~officer, director or other expenses reasonably incurred by them in connection with investigating or defending any such Claim; provided, however, that the Company shall not be liable to Holder to the extent that any Claim arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in conformity with information furnished by such Holder or any such controlling person in writing specifically for use in the Registration Statement or related prospectus, as amended or supplemented.

~~(ii) The Holder will, to the extent permitted by law, indemnify and hold harmless the Company,~~member and each person, if any, who controls the Company within the meaning of the Securities Act, each underwriter, each officer of the Company who signs the Registration Statement and each director of the Company against all Claims to which the Company or such officer, director, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such Claims arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such officer, director, underwriter and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or ~~action, provided, however, that~~action. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement.

(b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such ~~Holder will be liable hereunder~~controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon any untrue statement of a material fact contained in any ~~such case if and~~Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading to the extent, but only to the extent that, ~~any~~ such ~~Claim arises out of~~untrue statements or isomissions are based solely upon ~~an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with~~ information ~~pertaining to~~regarding such Holder ~~as such,~~ furnished in writing to the Company by such Holder ~~specifically~~expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or ~~related prospectus, as amended~~such form of Prospectus or ~~supplemented.~~in any amendment or supplement thereto. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.

~~(iii) Promptly after receipt by an indemnified party~~(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of ~~notice~~counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof;provided, that the ~~commencement~~failure of any ~~action,~~Indemnified Party to give such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying partynotice shall not relieve ~~it from any liability which it may have~~the Indemnifying Party of its obligations or liabilities pursuant to ~~such indemnified party other than under~~ this ~~section and shall only relieve it from any liability which it may have to such indemnified party under this section~~Agreement, except ~~and only if and~~(and only) to the extent ~~the indemnifying party is materially prejudiced by such omission. In case any such action~~that it shall be ~~brought against any indemnified party and it shall notify the indemnifying party~~finally determined by a court of ~~the commencement thereof, the indemnifying party shall be entitled~~competent jurisdiction (which determination is not subject to ~~participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel satisfactory to~~appeal or further review) that such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this section for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however, that, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified partyfailure shall have ~~reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to~~proximately and materially adversely prejudiced the ~~indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified parties, as a group,~~Indemnifying Party.

An Indemnified Party shall have the right to ~~select one~~employ separate counsel ~~and to assume~~in any such ~~legal defenses~~Proceeding and ~~otherwise~~ to participate in the defense thereof, but the fees and expenses of such ~~action, with~~counsel shall be at the ~~reasonable expenses and fees~~expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and ~~other expenses related to~~ such ~~participation to~~counsel shall be ~~reimbursed~~at the expense of the Indemnifying Party);provided, that, the Indemnifying Party shall pay for no more than two separate sets of counsel for all Indemnified Parties and such legal counsel shall be selected by the ~~indemnifying party as incurred.~~Required Holders. The ~~indemnifying party~~Indemnifying Party shall not be liable for any settlement of any such ~~proceeding affected~~Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.

~~(iv) In order to provide for just~~All fees and ~~equitable contribution in the event of joint liability under the Securities Act in any case in which either (i) the Holder, or any controlling person~~expenses of the ~~Holder, makes~~Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder;provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).

(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.

The parties hereto agree that it would not be just and equitable if contribution pursuant to this ~~section but it is judicially~~Section 5(d) were determined ~~(by~~by pro rata allocation or by any other method of allocation that does not take into account the ~~entry of a final judgment or decree by a court of competent jurisdiction and~~equitable considerations referred to in the ~~expiration of time to appeal or~~immediately preceding paragraph. Notwithstanding the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this section provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of the Holder or controlling person of the Holder in circumstances for which indemnification is not provided under this section, then, and in each such case, the Company and the Holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in a manner that reflects, as near as practicable, the economic effect of the foregoing provisions of this ~~section. Notwithstanding~~Section 5(d), (i) no Person involved in the ~~foregoing, no person or entity~~sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section ~~10(f)~~11(f) of the Securities Act) ~~will~~in connection with such sale shall be entitled to contribution from any ~~person or entity~~Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such ~~fraudulent misrepresentation.~~Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.

~~(f)~~6. ~~Delivery~~Reports Under the Exchange Act. With a view to making available to the Holders the benefits of ~~Unlegended Shares~~.Rule 144 or any other similar rule or regulation of the Commission that may at any time permit the Holders to sell Registrable Securities of the Company to the public without registration, the Company agrees, for so long as Registrable Securities are outstanding and held by the Holders, to:

~~(i) Within three business days (such business day, the “~~~~Unlegended Shares Delivery Date~~~~”) after the business day on which the Company has received (i) a notice that Shares have been sold either pursuant to,~~(a) make and keep public information available, as those terms are understood, defined and required in ~~compliance~~Rule 144;

(b) file with the ~~Registration Statement or Rule 144~~Commission in a timely manner all reports and other documents required of the Company under the Securities Act (“~~Rule 144~~”) and ~~(ii) in~~ the ~~case~~Exchange Act so long as the Company remains subject to such requirements and the filing of ~~sales under Rule 144, customary representation letters of~~such reports and other documents is required for the ~~Holder and Holder’s broker regarding compliance with the requirements~~applicable provisions of Rule ~~144, the Company at its expense, (A) shall deliver the Shares so sold without any restrictive legends relating to the Securities Act (the “~~~~Unlegended Shares~~~~”);~~144; and (B) shall cause the transmission of the certificates representing the Unlegended Shares together with a legended certificate representing the balance of the unsold Shares, if any, to the Holder at the address specified in the notice of sale, via express courier, by electronic transfer or otherwise on or before the Unlegended Shares Delivery Date. Transfer fees shall be the responsibility of the Holder.

~~(ii) In lieu of delivering physical certificates representing the Unlegended Shares, if the Company’s transfer agent is participating in the Depository Trust Company (“~~~~DTC~~~~”) Fast Automated Securities Transfer program, upon request of~~(c) furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon request, such information as may be reasonably and customarily requested to permit the ~~certificates therefor do not bear a legend and the Holder is not obligated~~Holders to ~~return~~sell such certificate for the placement of a legend thereon, the Company shall use its best efforts to cause its transfer agent to electronically transmit the Unlegended Shares by crediting the account of Holder’s broker with DTC through its Deposit/Withdrawal at Custodian system. Such delivery must be made on or before the Unlegended Shares Delivery Date but is subject to the cooperation of the Holder’s broker (the so-called DTC participant).

(iii) The Holder agrees that the removal of the restrictive legend from certificates representing the Shares as set forth in this section is predicated upon the Company’s reliance that the Holder will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom.

~~(g)~~ ~~Rule 144. The Company agrees that until all the Shares have been sold under a Registration Statement or~~securities pursuant to Rule 144 without registration.

7. Assignment of Registration Rights. The rights under this Agreement shall be automatically assignable by the Note Holders and OFI to any permitted transferee of all or ~~other available exemption from~~any portion of their Registrable Securities ~~Act registration requirements, it shall use its reasonable commercial efforts to keep current~~if: (i) the transferor agrees in ~~filing all reports, statements and other materials required to be filed~~writing with the ~~SEC~~transferee or assignee to ~~permit the Investors to sell the Shares under Rule 144. The Company shall use commercially reasonable efforts to facilitate sales~~assign such rights, and a copy of ~~the Shares under Rule 144, including the delivery of customary transfer agent instructions~~such agreement is furnished to the ~~Company’s~~Company within five (5) Business Days after such assignment; (ii) the Company is, within five (5) Business Days after such transfer ~~agent~~or assignment, furnished with written notice of (a) the name and ~~causing its counsel~~address of such transferee or assignee, and (b) the securities with respect to ~~deliver any required opinion to~~which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the ~~Company’s transfer agent if resales under Rule 144 are permissible~~further disposition of such securities by the transferee or assignee is restricted under the Securities ~~Act.~~Act or applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; and (v) such transfer shall have been made in accordance with the applicable requirements of the Remediation Agreement.

~~Article 5.~~
~~MISCELLANEOUS~~8. Miscellaneous.

(a) ~~Security~~Remedies. ~~The obligations~~In the event of a breach by the Company or by a Holder, of any of their obligations under this ~~Note are secured by a lien on all of the assets of~~Agreement, each Holder or the Company, as ~~more fully described~~the case may be, in ~~the Security~~addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement.

~~(b)~~ ~~Taxes, Charges, and Expenses~~. The Company ~~at its own cost, shall report interest income, if any, to the IRS and/or other applicable tax authorities~~ and ~~to the~~each Holder ~~on a Form 1099-INT or other appropriate form in accordance with applicable law. The Company shall bear sole responsibility~~agree that monetary damages would not provide adequate compensation for any ~~costs or fees in connection with the payment~~losses incurred by reason of ~~Interest with respect to this Note, including, but not limited to, wire transfer fees, bank check fees and escrow agent fees.~~

~~(c)~~ ~~Transferability. The Company may not assign this Note. This Note will be binding upon the Company and its successors and will inure to the benefit~~a breach by it of any of the ~~Holder~~provisions of this Agreement and ~~its successors and assigns and may be assigned by the Holder to anyone of its choosing without the Company’s approval, but subject to transfer restrictions under applicable law.~~

~~(d)~~ ~~Prepayment. This Note may not be prepaid by the Company without the written consent of the Holder.~~

~~(e)~~ ~~WAIVER OF TRIAL BY JURY~~.~~COMPANY AND HOLDER~~ hereby knowingly and voluntarily with the benefit of counsel waive trial by jury in any actions, proceedings, claims or counter-claims, whether in contract or tort or otherwise, at law or in equity, arising out of or in any way relating to this NOTE.

~~(f)~~ ~~Mutilated, Destroyed, Lost or Stolen Notes~~. If this Note shall become mutilated or defaced, or be destroyed, lost or stolen, the Company shall execute and deliver a new note of like principal amount in exchange and substitution for the mutilated or defaced Note, or in lieu of and in substitution for the destroyed, lost or stolen Note certificate. In the case of a mutilated or defaced Note certificate, the Holder shall surrender such Note certificate to the Company. In the case of any destroyed, lost or stolen Note certificate, the Holder shall furnish to the Company: (i) evidence to its satisfaction of the destruction, loss or theft of such Note certificate and (ii) such security or indemnity (which shall not include the posting of any bond) as may be reasonably required by the Company to hold the Company harmless.

~~(g)~~ ~~Waiver of Demand, Presentment, etc.~~ The Company hereby expressly waives demand and presentment for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, notice of acceleration or intent to accelerate, bringing of suit and diligence in taking any action to collect amounts called for hereunder and shall be directly and primarily liable for the payment of all sums owing and to be owing hereunder, regardless of and without any notice, diligence, act or omission as or with respect to the collection of any amount called for hereunder. The Companyfurther agrees that, in the event of ~~an Event~~any action for specific performance in respect of ~~Default,~~such breach, it shall waive the defense that a remedy at law would be adequate.

(b) No Piggyback on Registrations. Neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in a Registration Statement other than the Registrable Securities, and the Company shall not during the Effectiveness Period enter into any agreement providing any such right to ~~reimburse~~any of its security holders.

(c) Compliance. Each Holder covenants and agrees that it will comply with the ~~Holder for all reasonable costs and expenses (including reasonable legal fees~~prospectus delivery requirements of ~~one counsel) incurred~~the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to the ~~enforcement and collection of this Note.~~Registration Statement.

~~(h)~~(d) ~~Payment~~Discontinued Disposition. ~~All payments with respect to this Note shall be made in lawful money~~Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the ~~United States~~occurrence of ~~America, at the address~~any event of the kind described in Section 3(c), such Holder aswill forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the ~~date hereof~~ copies of the supplemented Prospectus and/or ~~as designated~~amended Registration Statement or until it is advised in writing by the ~~Holder from time to time. The receipt by~~Company that the ~~Holder of immediately available funds shall constitute a payment of principal and interest hereunder and shall satisfy and discharge the liability for principal and interest on this Note to the extent~~use of the ~~sum represented~~applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such ~~payment. Payment shall be credited first~~Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the ~~accrued interest then due and payable and the remainder applied to principal.~~provisions of this paragraph.

~~(i)~~(e) ~~Waiver and Amendment~~Piggy-Back Registrations. ~~Any provision~~If at any time during the Effectiveness Period there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to each Holder written notice of such determination and, if within fifteen calendar days after receipt of such notice, any such Holder shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such holder requests to be registered, subject to customary underwriter cutbacks applicable to all holders of registration rights.

(f) Amendments and Waivers. Provisions of this ~~Note, including, without limitation, the due date hereof,~~Agreement may be amended and the observance ~~of any term hereof,~~thereof may be ~~amended,~~ waived ~~or modified~~ (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the ~~Holder.~~

~~(j)~~ ~~Severability. If one~~Required Holders. Any amendment or more provisions of this Note are held to be unenforceable under applicable law, such provisions shall be excluded from this Note, and the balance of this Note shall be interpreted as if such provisions were so excluded and shall be enforceablewaiver effected in accordance with ~~its terms.~~

~~(k)~~ ~~Notices. All notices~~this Section 8(f) shall be binding upon the Holders and the Company. No such amendment shall be effective to the extent that ~~are required~~it applies to less than all of the Holders. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to this Agreement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of certain Holders and that does not directly or indirectly affect the rights of other Holders may be given ~~pursuant~~by Holders of at least a majority of the Registrable Securities to which such waiver or consent relates.

(g) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement ~~shall~~must be ~~sufficient in all respects if given~~ in writing ~~in English~~ and by personal delivery (if signed for receipt), by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or transmitted via electronic mail (following appropriate confirmation of receipt by return email, including an automated confirmation of receipt) and shallwill be deemed to have been ~~made and~~delivered if delivered in accordance with Section 9(g) of the receiving Party charged with notice, when received except that if received after 5:00 p.m. (in the recipient’s time zone) on a Business Day or if received on a day that is not a Business Day, such notice, request or communication will not be effective until the next succeeding Business Day. All notices shall be addressed as follows:Remediation Agreement.

~~If to the Company:~~

~~PhotoMedex, Inc.~~

~~2300 Computer Drive, Building G~~

~~Willow Grove, PA 19090~~

~~Attention: Dr. Dolev Rafaeli~~

~~Email: dolev@radiancy.com~~

~~If to the Holder:~~

~~[Holder]~~

~~[address]~~

~~Email: [ ]~~

~~(l)~~(h) ~~Governing Law; Venue~~Successors and Assigns. This Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements executed and to be performed wholly within such State, without regard to any principles of conflicts of law. Each of the parties hereby (i) irrevocably consents and agrees that any legal or equitable action or proceeding arising under or in connection with this Agreement may be brought in the federal or state courts located in the County of New York in the State of New York, (ii) by execution and delivery, or receipt, of this Note , irrevocably submits to and accepts the jurisdiction of said courts, (iii) waives any defense that such court is not a convenient forum, and (iv) consent that any service of process may be made (x) in the manner set forth in Article 4(e) of this Note, or (y) by any other method of service permitted by law.

~~[remainder of page intentionally left blank]~~

~~IN WITNESS WHEREOF~~~~, the Company has executed this Note as of the date and year first aforesaid.~~

~~PHOTOMEDEX, INC.~~

	~~By:~~
	~~Name:~~
	~~Title:~~

~~Exhibit I~~

~~Payout Notes Security Agreement~~

~~Security Agreement~~

~~This~~~~SECURITY AGREEMENT~~ (“~~Agreement~~~~”) is made as of __________, 2017, by and between PhotoMedex, Inc., a Nevada corporation (to be renamed ____________) (the “~~~~Debtor~~~~”), and Dolev Rafaeli (“~~~~Rafaeli~~~~”), Dennis M. McGrath (“~~~~McGrath~~~~”)and Yoav Ben-Dror (“~~~~Ben-Dror~~~~”) (each, a “~~~~Secured Party~~~~” and together, the “~~~~Secured Parties~~~~”).~~

~~WHEREAS~~, each Secured Party is the holder of a Secured Payout Note Due ___________, 2018 made by the Debtor in favor of such Secured Party as of the date hereof in the principal amount of $________ with respect to Rafaeli, $__________ with respect to McGrath, and $__________ with respect to Ben-Dror, (each, a “~~Note~~~~” and together, the “~~~~Notes~~~~”); and~~

~~WHEREAS~~~~, in connection with the Notes, Secured Parties desire to obtain from Debtor, and Debtor desires to grant to Secured Parties, a security interest in the collateral more particularly described below.~~

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

1. ~~Grant of Security Interest~~. ~~Debtor hereby grants to Secured Parties a security interest in all of the properties, assets and personal property of Debtor, whether now owned or hereafter acquired (collectively, the “~~~~Collateral~~~~”) including, without limitation, the following:~~

(a) presently existing and hereafter arising accounts, contract rights, and all other forms of obligations owing to Debtor arising out of the sale or lease of goods or the rendition of services by Debtor, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Debtor and Debtor's Books relating to any of the foregoing (collectively, “~~Accounts~~~~”);~~

(b) present and future general intangibles and other personal property (including payment intangibles, choses or things in action, goodwill, intellectual property, patents, trade names, trademarks, servicemarks, copyrights, blueprints, drawings, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, monies due under any royalty or licensing agreements, infringement claims, software, computer programs, computer discs, computer tapes, literature, reports, catalogs deposit accounts, insurance premium rebates, tax refunds, and tax refund claims) (collectively, “~~General Intangibles~~~~”);~~

(c) present and future letters of credit, letter-of-credit rights (whether or not evidenced by a writing) and other supporting obligations, notes, drafts, instruments (including promissory notes), certificated and uncertificated securities, documents, leases, and chattel paper (whether tangible or electronic), and Debtor's Books relating to any of the foregoing (collectively, “~~Negotiable Collateral~~~~”);~~

(d) present and future inventory in which Debtor has any interest, including goods held for sale or lease or to be furnished under a contract of service and all of Debtor's present and future raw materials, work in process, finished goods, and packing and shipping materials, wherever located, and any documents of title representing any of the above, and Debtor's Books relating to any of the foregoing (collectively, “~~Inventory~~~~”);~~

(e) present and hereafter acquired machinery, machine tools, motors, equipment, furniture, furnishings, fixtures, vehicles (including motor vehicles and trailers), tools, parts, dies, jigs, goods (other than consumer goods or farm products), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located (collectively, “~~Equipment~~~~”);~~

(f) present and hereafter acquired books and records including: ledgers; records indicating, summarizing, or evidencing Debtor's assets or liabilities, or the collateral; all information relating to Debtor's business operations or financial condition; and all computer programs, disc or tape files, printouts, funds or other computer prepared information, and the equipment containing such information (collectively, “~~Debtor's Books~~~~”);~~

~~(g) “~~~~Investment Property~~~~,” as that term is defined in Section 9 of the UCC (defined below).~~

(h) substitutions, replacements, additions, accessions, proceeds, products to or of any of the foregoing, including, but not limited to, proceeds of insurance covering any of the foregoing, or any portion thereof, and any and all Accounts, General Intangibles, Inventory, Equipment, Investment Property, money, deposits, accounts, or other tangible or intangible property resulting from the sale or other disposition of the Accounts, General Intangibles, Inventory, Equipment, Investment Property or any portion thereof or interest therein and the proceeds thereof.

~~The security interests granted hereby shall secure the prompt payment of the principal and all accrued interest due under and pursuant to the terms of the Notes (the “~~~~Obligations~~~~”).~~

Notwithstanding any term or provision of this Agreement to the contrary, the security interest granted hereby is and shall be expressly subordinated and subrogated (in accordance with the terms of Article 3 of each Note) to any security interest, claims or liens of the holders of any Senior Indebtedness (as defined in the Notes).

2. ~~Perfection by Filing~~. Debtor hereby specifically authorizes Secured Parties at any time and from time to time to file financing statements, continuation statements and amendments thereto that describe the Collateral and contain any other information required by Article 9 of the Uniform Commercial Code, as enacted in New York (the “~~UCC~~”) for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including whether Debtor is an organization, the type of organization and any organization identification number issued to Debtor. Debtor agrees to furnish any such information to the Secured Parties promptly upon request. Any such financing statements, continuation statements or amendments may be signed by an agent of Secured Parties on behalf of Debtor and may be filed at any time in any jurisdiction. Debtor hereby irrevocably constitutes and appoints Secured Parties and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Debtor and in the name of Debtor or in its own name, from time to time in such Secured Parties’ discretion, for the limited purpose of carrying out the terms of this subsection regarding perfection by filing. Debtor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this subsection are coupled with an interest and are irrevocable until all of the Obligations (as defined in the Loan Documents) have been paid and satisfied in full.

3. ~~Perfection Other Than by Filing, etc~~. At any time and from time to time, Debtor shall take such steps as Secured Parties may reasonably request for Debtor (a) to obtain an acknowledgment, in form and substance reasonably satisfactory to Secured Parties, of any bailee having possession of any of the Collateral, that such bailee holds such Collateral for the Secured Parties, (b) to obtain control of any investment property, deposit accounts, letter-of-credit rights or electronic chattel paper (as such terms are defined in Article 9 of the UCC) as set forth in Article 9 of the UCC, and, where control is established by written agreement, such agreement shall be in form and substance reasonably satisfactory to Secured Parties, and (c) otherwise to insure the continued perfection and priority of Secured Parties’ security interest in any of the Collateral and of the preservation of its rights therein.

4. ~~Agreements With Respect to the Collateral~~. ~~Debtor covenants and agrees with Secured Parties as follows:~~

(a) Debtor shall notify Secured Parties in writing of any change in the location of Debtor's principal place of business or the location of any material tangible Collateral or the place(s) where the records concerning all intangible Collateral are kept or maintained.

(b) Debtor will keep the Collateral in good condition and repair, ordinary wear and tear excepted, and will pay and discharge all taxes, levies and other impositions levied thereon as well as the cost of repairs to or maintenance of same, and will not permit anything to be done that may materially impair the value of any of the Collateral. If Debtor fails to pay such sums, Secured Parties may do so for Debtor's account and add the amount thereof to the Obligations.

~~(c) Until the occurrence of an Event of Default (as defined in the Note), Debtor shall be entitled to exercise the remedies set forth herein.~~

(d) So long as an Event of Default has not occurred, Debtor shall have the right to process and sell the Collateral in the regular course of business. Secured Parties’ security interest hereunder shall attach to all proceeds of all sales of the Collateral. If at any time any such proceeds shall be represented by any instruments, chattel paper or documents of title, then such instruments, chattel paper or documents of title shall be subject to the security interest granted hereby.

5. ~~Remedies Upon Default~~. Upon the occurrence of an Event of Default under and as defined in the Notes, including without limitation, a payment default under the Notes, Secured Parties may (subject in all instances to Article 3 of the Notes) pursue any or all of the following remedies:

(a) Secured Parties shall give written notice of default to Debtor, following which Debtor shall not dispose of, conceal, transfer, sell or encumber any of the Collateral (including, but not limited to, cash proceeds) without Secured Parties prior written consent, except in the ordinary course of business.

(b) Secured Parties may dispose of the Collateral at private or public sale in accordance with the applicable provisions of the UCC. Any required notice of sale shall be deemed commercially reasonable if given at least twenty (20) days prior to sale.

(c) Secured Parties may exercise their lien upon and right of setoff against any monies, items, credits, deposits or instruments that Secured Parties may have in their possession and that belong to Debtor or to any other person or entity liable for the payment of any or all of the Obligations.

(d) Secured Parties may exercise any right that they may have under any other document evidencing or securing the Obligations or otherwise available to Secured Party at law or equity.

(e) Notwithstanding anything herein to the contrary, Secured Parties shall not be entitled to exercise any rights with respect to the Collateral to the extent that the reasonable value of the Collateral exceeds the amount then due and owing to the Secured Parties.

(f) The Secured Party acknowledges and agrees that Collateral is subject to security interests granted to other secured parties by the Debtor. In exercising any of Secured Parties’ rights hereunder, the Secured Parties shall undertake to (i) coordinate its efforts with such other secured parties to minimize any inconvenience to the Secured Parties or disruption to its business activities, and (ii) effect the exercise of their rights hereunder so as to not adversely affect in any manner the value of the Collateral or to impose costs or obligations on Secured Parties in excess of what Secured Parties would reasonably be expected to bear were the Debtor the sole party with rights to the Collateral.

6. ~~Termination Statement~~. Upon receipt of proper written demand following the payment in full of the Obligations, Secured Parties shall promptly file a termination statement with respect to any financing statement filed to perfect Secured Party's security interests in any of the Collateral to Debtor or cause such termination statement to be filed with the appropriate filing officer(s). If the Secured Parties shall fail to file any such termination statement within ten (10) days of the payment in full of all Obligations, Debtor shall have the right to file such termination statements.

7. ~~Binding Effect~~. This Agreement shall inure to the benefit of ~~Secured Parties’~~and be binding upon the successors and permitted assigns of each of the parties and shall ~~bind Debtor's successors~~inure to the benefit of each Holder. The Company may not assign its rights or obligations hereunder without the prior written consent of each Holder. Each Holder may assign their respective rights hereunder in the manner and ~~assigns.~~

8. ~~Severability~~. ~~If any provision of this Agreement is held invalid, such invalidity shall not affect~~to the ~~validity or enforceability of~~Persons as permitted hereunder and under the ~~remaining provisions of this~~Remediation Agreement.

9.(i) ~~Governing Law~~Execution and ~~Amendments~~. This Agreement shall be construed and enforced under the laws of the State of New York applicable to contracts to be wholly performed in such State. No amendment or modification hereof shall be effective except in a writing executed by each of the parties hereto.

~~10.~~ Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original ~~instrument, but~~and, all ~~such counterparts~~of which taken together shall constitute ~~but~~ one ~~agreement. Signatures to this Agreement transmitted by~~and the same Agreement. Counterparts may be delivered via facsimile, ~~transmission, by~~ electronic mail ~~in “portable document format” (.pdf) form,~~(including pdf or by any electronic signature complying with the U.S. federal ESIGN Act of 2000,e.g., www.docusign.com) or other ~~electronic means intended~~transmission method and any counterpart so delivered shall be deemed to ~~preserve the original graphic~~have been duly and ~~pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.~~validly delivered and be valid and effective for all purposes.

~~11.~~(j) ~~Construction and Interpretation~~Mediation; Arbitration; Governing Law. ~~Should~~ In the event of a dispute between any provision of this Agreement require judicial interpretation, the parties hereto agree that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be more strictly construed against the party that itself or through its agent prepared the same, it being agreed that Debtor, Secured Parties and their respective agents have participated in the preparation hereof.

~~12.~~ ~~Exclusive Venue~~~~. Each~~ of the parties ~~hereby (i) irrevocably consents and agrees that any legal or equitable action or proceeding~~ arising under or relating in ~~connection with~~any way whatsoever to this Agreement, ~~may be brought in~~ the ~~federal or state courts located in~~disputing parties shall attempt to resolve it through good faith negotiation. If the ~~County of New York~~dispute is not resolved through such negotiation, then the disputing parties shall attempt to resolve it through mediation in the State of New York, ~~(ii)~~USA, with a neutral, third-party mediator mutually agreed upon by ~~execution and delivery, or receipt,~~the disputing parties. Unless otherwise agreed by the disputing parties, the costs of ~~this Note , irrevocably submits to and accepts~~mediation shall be shared equally. If the ~~jurisdiction of said courts, (iii) waives any defense that such court~~dispute is not resolved through mediation, then upon written demand by one of the disputing parties it shall be referred to a ~~convenient forum,~~mutually agreeable arbitrator. The arbitration process shall be conducted in accordance with the laws of the United States of America and ~~(iv) consent that any service~~the State of ~~process~~New York, except as modified herein. Venue for the arbitration hearing shall be the State of New York, USA. All remedies, legal and equitable, available in court shall also be available in arbitration. The arbitrator’s decision shall be final and binding, and judgment may be ~~made (x)~~entered thereon in a court of competent jurisdiction. This Agreement shall be interpreted and enforced in accordance with the ~~manner set forth~~laws of the United States of America and the State of New York, without regard to conflict of law principles thereof. In any dispute arising out of or relating in ~~Article 4(e)~~way whatsoever to this Agreement, including arbitration, the substantially prevailing party shall be entitled to recover its costs and attorney fees from the other disputing parties.

(k) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of ~~this Note, or (y) by~~ any ~~other method of service permitted~~remedies provided by law.

~~13.~~(l) ~~Waiver~~Entire Agreement. This Agreement, the Remediation Agreement and the instruments referenced herein and therein constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement, the Remediation Agreement and the instruments referenced herein and therein supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.

(m) Severability. If any term, provision, covenant or restriction of ~~Trial~~this Agreement is held by ~~Jury~~a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

(n) Headings.~~Secured PartIES~~ The headings in this Agreement are for convenience of reference only and ~~Debtor hereby knowingly~~shall not limit or otherwise affect the meaning hereof.

(o) Independent Nature of Holders’ Obligations and ~~voluntarily~~Rights. The obligations of each Holder under this Agreement are several and not joint with the ~~benefit~~obligations of ~~counsel waive trial by jury in any actions, proceedings, claims or counter-claims, whether in contract or tort or otherwise, at law or in equity, arising out of or~~each other Holder, and no Holder shall be responsible in any way ~~relating~~for the performance of the obligations of any other Holder under this Agreement. Nothing contained herein or in the Remediation Agreement, and no action taken by any Holder pursuant thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or the ~~Loan Documents.~~Remediation Agreement. Each Holder acknowledges that no other Holder will be acting as agent of such Holder in enforcing its rights under this Agreement. Each Holder shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any Proceeding for such purpose. The Company acknowledges that each of the Holders has been provided with the same Registration Rights Agreement for the purpose of closing a transaction with multiple Holders and not because it was required or requested to do so by any Holder.

[Signature Page Follows]

~~14.~~ N~~otice~~. ~~Any notice under this Agreement shall be made in accordance with the terms of the Notes.~~

IN WITNESS WHEREOF ~~Debtor and Secured Party~~, the parties have executed this Registration Rights Agreement ~~or have caused this Agreement to be executed~~ as of the date first ~~above written.~~written above.

	~~Debtor:~~COMPANY:

	~~PHOTOMEDEX, INC.~~FC GLOBAL REALTY INCORPORATED

	By:
			Name: Michael R. Stewart
			Title: Chief Executive Officer

	~~Secured Party:~~OFI:


	~~Dr. Dolev Rafaeli~~OPPORTUNITY FUND I-SS, LLC

	BY:OP FUND I MANAGER, LLC

	By:
	Name: Kristen Pigman
	Title: Director

	NOTE HOLDERS:

	Dolev Rafaeli

	Dennis M. McGrath

	Yoav Ben-Dror

Annex A

Plan of Distribution

The Selling Stockholders and any of their pledgees, donees, transferees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of common stock on any stock exchange, market or trading facility on which the shares are traded or quoted or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholders may use any one or more of the following methods when selling shares:

●

ordinary brokerage transactions and transactions in which the broker-dealer solicits Investors;

●

block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

●

purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

●

an exchange distribution in accordance with the rules of the applicable exchange;

●

privately negotiated transactions;

●

through the writing of options on the shares;

●

to cover short sales made after the date that this Registration Statement is declared effective by the Commission;

●

broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share;

●

a combination of any such methods of sale; and

●

any other method permitted by applicable law.

The selling stockholders may also sell shares under Rule 144 of the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus. The selling stockholders shall have the sole and absolute discretion not to accept any purchase offer or make any sale of shares if it deems the purchase price to be unsatisfactory at any particular time.

The selling stockholders, alternatively, may sell all or any part of the shares offered in this prospectus through an underwriter. The selling stockholders have not entered into any agreement with a prospective underwriter and there is no assurance that any such agreement will be entered into.

The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

The selling stockholders or their respective pledgees, donees, transferees or other successors in interest, may also sell the shares directly to market makers acting as principals and/or broker-dealers acting as agents for themselves or their customers. Such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the selling stockholders and/or the purchasers of shares for whom such broker-dealers may act as agents or to whom they sell as principal or both in amounts to be negotiated. Market makers and block purchasers purchasing the shares will do so for their own account and at their own risk. It is possible that a selling stockholder will attempt to sell shares of common stock in block transactions to market makers or other purchasers at a price per share which may be below the then existing market price. We cannot assure that all or any of the shares offered in this prospectus will be issued to, or sold by, the selling stockholders. The selling stockholders and any brokers, dealers or agents, upon effecting the sale of any of the shares offered in this prospectus, may be deemed to be “underwriters” as that term is defined under the Securities Act, the Exchange Act and the rules and regulations of such acts. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.

In connection with the sale of our common stock, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

The selling stockholders and any other persons participating in the sale or distribution of the shares will be subject to applicable provisions of the Exchange Act, and the rules and regulations under such act, including, without limitation, Regulation M. These provisions may restrict certain activities of, and limit the timing of purchases and sales of any of the shares by, the selling stockholders or any other such person. In the event that any of the selling stockholders are deemed an affiliated purchaser or distribution participant within the meaning of Regulation M, then the selling stockholders will not be permitted to engage in short sales of common stock. Furthermore, under Regulation M, persons engaged in a distribution of securities are prohibited from simultaneously engaging in market making and certain other activities with respect to such securities for a specified period of time prior to the commencement of such distributions, subject to specified exceptions or exemptions. In addition, if a short sale is deemed to be a stabilizing activity, then the selling stockholders will not be permitted to engage in a short sale of our common stock. All of these limitations may affect the marketability of the shares.

If a selling stockholder notifies us that it has a material arrangement with a broker-dealer for the resale of the common stock, then we would be required to amend the registration statement of which this prospectus is a part, and file a prospectus supplement to describe the agreements between the selling stockholder and the broker-dealer.

The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.

We are required to pay all fees and expenses incident to the registration of the shares, including fees and disbursements of counsel to the selling stockholders, but excluding brokerage commissions or underwriter discounts.

We have agreed to indemnify the selling stockholders against liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the shares offered by this prospectus.

In order to comply with the securities laws of some states, if applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.

ANNEX C

~~Yoav Ben-Dror~~

BARBARA K. CEGAVSKE

Secretary of State

202 North Carson Street

Carson City, Nevada 89701-4201 (775) 684-5708

Website: www.nvsos.gov

~~Exhibit J~~

~~Employment Agreement with Suneet Singal~~

~~[PhotoMedex, Inc. Letterhead]~~

~~[Date]~~

~~Mr. Suneet Singal~~

~~[Address]~~

~~Re: Employment Terms~~

~~Dear Suneet:~~

~~PhotoMedex, Inc, (the “~~~~Company~~~~”) is pleased to offer you the position of Chief Executive Officer of the Company on the following terms.~~

You will be responsible for overseeing the corporate strategy of the Company and the implementation of the Company’s business plan as its most senior executive officer and will report to the board of directors of the Company. The Company acknowledges and agrees that you have and will continue to have executive and management responsibilities to First Capital Real Estate Trust Incorporated and its subsidiaries and affiliates (collectively, “~~First Capital~~”) and that nothing in this Agreement shall be construed to restrict or otherwise affect your obligations to First Capital. Further, notwithstanding anything to the contrary contained in this offer letter, you (i) may serve on the board(s) of additional companies or organizations and receive compensation for such services rendered (ii) may engage in charitable, civic, fraternal, professional, trade association or other activities on behalf of private companies and receive compensation for such services rendered, provided that in each such case the activities engaged in by you do not materially interfere with his obligations to the Company, and do not compete with the Company.

~~Your salary will be $__________ per year, less payroll deductions and withholdings, paid on the Company’s normal payroll schedule.~~

During your employment, you will be eligible to participate in the standard benefits plans offered to similarly situated employees by the Company from time to time, subject to plan terms and generally applicable Company policies. A full description of these benefits is available upon request. The Company may change compensation and benefits from time to time in its discretion.

~~Page 2~~

As a Company employee, you will be expected to abide by Company rules and policies. As a condition of employment, you agree that you will keep confidential during your employment and for a period of five (5) years following your employment, and will not disclose to any Person, any Confidential Information of the Company. “Confidential Information” means any non-public information about the Company, other than information which (i) is or becomes generally available to the public other than as a result of a disclosure by you, or any person acting on your behalf, or (ii) is disclosed by you pursuant to requirement of applicable law. If you are requested or required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, civil investigative demand or similar process), in connection with any proceeding, to disclose any Confidential Information, you will give the Company prompt written notice of such request or requirement so that the Company may seek an appropriate protective order or other remedy or waive compliance with the provisions of this paragraph and you will reasonably cooperate with the Company to obtain such protective order upon the Company’s request and at the Company’s expense. If, in the absence of a protective order or the receipt of a waiver hereunder, you are nonetheless compelled to disclose Confidential Information to or at the direction of any governmental authority or else stand liable for contempt or suffer other censure, penalty or adverse consequences, you may disclose such specifically requested Confidential Information to or at the direction of such governmental authority only after first notifying the Company.

In your work for the Company, you will be expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. You agree that you will not bring onto Company premises any unpublished documents or property belonging to any former employer or other person to whom you have an obligation of confidentiality. You hereby represent that you have disclosed to the Company any contract you have signed that may restrict your activities on behalf of the Company.

You may terminate your employment with the Company at any time and for any reason whatsoever simply by notifying the Company. Likewise, the Company may terminate your employment at any time, with or without cause or advance notice. Your employment at-will status can only be modified in a written agreement signed by you and by an officer of the Company.

This letter, forms the complete and exclusive statement of your employment agreement with the Company. It supersedes any other agreements or promises made to you by anyone, whether oral or written. Changes in your employment terms, other than those changes expressly reserved to the Company’s discretion in this letter, require a written modification signed by an officer of the Company.

Please sign and date this letter and return them to me by _________________, if you wish to accept employment at the Company under the terms described above. If you accept our offer, we would like you to start on _________________.

~~Page 3~~

~~We look forward to your favorable reply and to a productive and enjoyable work relationship.~~

~~Sincerely,~~

Certificate of Amendment

(PURSUANT TO NRS 78.385 AND 78.390)

~~[name, title]~~USE BLACK INK ONLY - DO NOT HIGHLIGHT

~~Understood and Accepted:~~


~~[Employee Name]~~		~~Date~~ABOVE SPACE IS FOR OFFICE USE ONLY

~~Exhibit K~~

~~Warrant~~

Certificate of Amendment to Articles of Incorporation

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE COMPANY TO SUCH EFFECT.For Nevada Profit Corporations

(Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock)

~~______________, 2017~~1.

Name of corporation:

FC Global Realty Incorporated

The articles have been amended as follows: (provide article numbers, if available)

Article 3 of the Amended and Restated Articles of Incorporation is hereby amended to add the following subsection:

(e) Upon the filing of this Certificate of Amendment, each [ ] ([ ]) shares of the issued and outstanding Common Stock of the Corporation shall be combined into one (1) share of Common Stock. No fractional shares shall be issued in connection with this reverse stock split. Any fractional share that would otherwise be issued as a result of the reverse split will be rounded up to the nearest whole share.

~~PHOTOMEDEX, INC.~~3. The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting power, or such greater proportion of the voting power as may be required in the case of a vote by classes or series, or as may be required by the provisions of the articles of incorporation* have voted in favor of the amendment is:

~~Common Stock Purchase Warrant~~

Effective date and time of filing: (optional) Date: Time:

Signature: (required)

(must not be later than 90 days after the certificate is filed)

~~THIS CERTIFIES THAT~~~~, for value received, First Capital Real Estate Operating Partnership, L.P.,~~X

Signature of Officer

*If any proposed amendment would alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a ~~Delaware limited partnership~~majority of the voting power of each class or series affected by the amendment regardless to limitations or restrictions on the voting power thereof.

ANNEX D

FC GLOBAL REALTY INCORPORATED

2018 EQUITY INCENTIVE PLAN

1. Purpose; Eligibility.

1.1. General Purpose. The name of this plan is the FC Global Realty Incorporated 2018 Equity Incentive Plan (the “~~Holder~~Plan”)~~, is entitled~~. The purposes of the Plan are to ~~subscribe for and purchase, at the Exercise Price (as defined below), from PhotoMedex, Inc,~~(a) enable FC Global Realty Incorporated, a Nevada corporation (the “Company”), ~~shares~~and any Affiliate to attract and retain the types of Employees, Consultants and Directors who will contribute to the Company’s long-term success; (b) provide incentives that align the interests of Employees, Consultants and Directors with those of the stockholders of the Company; and (c) promote the success of the Company’s ~~common stock, par value $.01 (the “~~~~Common~~business.

1.2. Eligible Award Recipients. The persons eligible to receive Awards are the Employees, Consultants and Directors of the Company and its Affiliates and such other individuals designated by the Committee who are reasonably expected to become Employees, Consultants and Directors after the receipt of Awards.

1.3. Available Awards. Awards that may be granted under the Plan include: (a) Incentive Stock~~”), at any time prior to 5:00 p.m., New York time, on the _________________, 2022 (the “~~~~Warrant Exercise Term~~”) Options, (b) Non-qualified Stock Options, (c) Stock Appreciation Rights, (d) Restricted Awards, (e) Performance Share Awards, and (f) Performance Compensation Awards.

2. Definitions.

~~This Warrant~~“Affiliate” means a corporation or other entity that, directly or through one or more intermediaries, controls, is ~~issued~~controlled by or is under common control with, the Company.

“Applicable Laws” means the requirements related to or implicated by the administration of the Plan under applicable state corporate law, United States federal and state securities laws, the Code, any stock exchange or quotation system on which the shares of Common Stock are listed or quoted, and the applicable laws of any foreign country or jurisdiction where Awards are granted under the Plan.

“Award” means any right granted under the Plan, including an Incentive Stock Option, a Non-qualified Stock Option, a Stock Appreciation Right, a Restricted Award, a Performance Share Award or a Performance Compensation Award.

“Award Agreement” means a written agreement, contract, certificate or other instrument or document evidencing the terms and conditions of an individual Award granted under the Plan which may, in ~~accordance with, and~~the discretion of the Company, be transmitted electronically to any Participant. Each Award Agreement shall be subject to the terms and conditions ~~described in~~of the ~~Interest Contribution Agreement, dated March 31, 2017, among the initial Holder, First Capital Real Estate Trust Incorporated, the Company and FC Global Realty Operating Partnership, LLP (the “~~~~Contribution Agreement~~~~”). All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Contribution Agreement.~~

~~This Warrant is subject to the following terms and conditions:~~

1. ~~Shares. The Holder has, subject to the terms set forth herein, the right to purchase up to an aggregate of~~~~Twenty-Five Million (25,000,000)~~~~shares of Common Stock (the “~~~~Warrant Shares~~~~”) at a per share exercise price of $3.00, subject to adjustment as provided for herein (the “~~~~Exercise Price~~~~”).~~Plan.

2. ~~Exercise~~“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of ~~Warrant~~.any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.

~~(a)~~ ~~Exercise; Vesting~~.

~~(i)~~ ~~Exercise~~. This Warrant may be exercised by the Holder to the extent vested in accordance with Section 2(a)(ii) below at any time prior to the Warrant Exercise Term, in whole or in part and on more than one occasion, by delivering the notice of exercise attached as~~Exhibit A~~ ~~hereto (the~~ “~~Notice of Exercise~~”), duly executed by the Holder to the Company at its principal office, or at such other office as the Company may designate, accompanied by payment, by wire transfer of immediately available funds to the order of the Company to an account designated by the Company, of the amount obtained by multiplying the number of Warrant Shares designated in the Notice of Exercise by the Exercise Price (the “~~Purchase Price~~~~”). For purposes hereof, “~~~~Exercise Date~~Board” shall mean the date on which all deliveries required to be made to the Company upon exercise of this Warrant pursuant to this Section 2(a)(i) shall have been made. The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. No originals of the Notice of Exercise shall be required to be delivered, nor shall any medallion guarantee (or any other type of guarantee or notarization) of any Notice of Exercise shall be required.

~~(ii)~~ ~~Vesting~~. This warrant may only be exercised to the extent that it has vested in accordance with this Section 2(a)(ii). This warrant shall vest (become exercisable) with respect to the number of Warrant Shares specified in the table below upon the achievement of the milestone specified opposite such number of Warrant Shares in the table below. The number of Warrant Shares that vest below will be equitably adjusted in the event of a stock split, stock combination, recapitalization or similar transaction.

~~Milestone to be Achieved~~		~~Number of Warrant~~ ~~Shares to Vest~~

~~First revenues of at least $500,000 from either asset sales or real estate income – Punta Brava~~		~~8,333,334~~

~~Upon Ground-Breaking with respect to the golf course (Shovels in the ground) - Punta Brava~~		~~8,333,333~~

~~First revenues of at least $500,000 from either asset sales or real estate income – Melrose~~		~~4,666,667~~

~~Upon Ground-Breaking with respect to residential home lots (Shovels in the ground)- Melrose~~		~~4,666,666~~

~~Total~~		~~25,000,000~~

~~(b)~~ ~~Cashless Exercise~~. Notwithstanding anything contained herein to the contrary, the Holder may, in its sole discretion, exercise this Warrant and, in lieu of making the cash payment otherwise required to be made to the Company upon such exercise in payment of the Aggregate Exercise Price for the applicable Warrant Shares, elect instead to receive upon such exercise the "Net Number" of shares of Common Stock determined according to the following formula (a "~~Cashless Exercise~~~~"):~~

~~X =~~ ~~Y (A - B)~~

~~with:~~	~~X =~~	~~the number of Warrant Shares to be issued to the Holder~~

	~~Y =~~	~~the number of Warrant Shares with respect to which the Warrant is being exercised~~

	~~A =~~	~~the fair value per share of Common Stock on the date of exercise of this Warrant~~

	~~B =~~	~~the then-current Exercise Price of the Warrant~~

Solely for the purposes of this paragraph, “fair value” per share of Common Stock shall mean (A) the average of the closing sales prices on the Trading Market for the twenty (20) trading days immediately preceding the date on which the Notice of Exercise is deemed to have been sent to the Company, or (B) if the Common Stock is not publicly traded as set forth above, as reasonably and in good faith determined bymeans the Board of Directors of the Company, as ~~of the date which the Notice of Exercise is deemed to have been sent to the Company.~~

For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a Cashless Exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for such shares shall be deemed to have commenced, on the date this Warrant was originally issued.

~~(c)~~ ~~Issuance of Certificates~~. As soon as practicable after the exercise of this Warrant, in whole or in part, in accordance with Section 2(a)(i) or 2(b) hereof (and in no event later than two (2) Trading Days following the delivery of the Notice of Exercise), the Company,constituted at its expense, shall cause to be issued in the name of and delivered to the Holder: (i) a certificate or certificates for (or, if applicable, by delivery through the facilities of the Depository Trust Company in electronic form of) the number of fully paid and non-assessable Warrant Shares to which the Holder shall be entitled upon such exercise and, if applicable, (ii) a new warrant of like tenor to purchase all of the Warrant Shares that may be purchased pursuant to the portion, if any of this Warrant not exercised by the Holder. The Holder shall for all purposes hereof be deemed to have become the Holder of record of such Warrant Shares on the date on which the Notice of Exercise and payment of the Purchase Price in accordance with Section 2(a)(i) hereof were delivered and made, respectively, irrespective of the date of delivery of such certificate or certificates, except that if the date of such delivery, notice and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of record of such Warrant Shares at the close of business on the next succeeding date on which the stock transfer books are open.time.

3. ~~Adjustment~~“Cause” means:

With respect to any Employee or Consultant: (a) if the Employee or Consultant is a party to an employment or service agreement with the Company or its Affiliates and such agreement provides for a definition of ~~Exercise Price~~.Cause, the definition contained therein; or (b) if no such agreement exists, or if such agreement does not define Cause: (i) the commission of, or plea of guilty or no contest to, a felony or a crime involving moral turpitude or the commission of any other act involving willful malfeasance or material fiduciary breach with respect to the Company or an Affiliate; (ii) conduct that results in or is reasonably likely to result in harm to the reputation or business of the Company or any of its Affiliates; (iii) gross negligence or willful misconduct with respect to the Company or an Affiliate; or (iv) material violation of state or federal securities laws.

With respect to any Director, a determination by a majority of the disinterested Board members that the Director has engaged in any of the following: (a) malfeasance in office; (b) gross misconduct or neglect; (c) false or fraudulent misrepresentation inducing the director’s appointment; (d) willful conversion of corporate funds; or (e) repeated failure to participate in Board meetings on a regular basis despite having received proper notice of the meetings in advance.

The Committee, in its absolute discretion, shall determine the effect of all matters and questions relating to whether a Participant has been discharged for Cause.

“Change in Control” means (a) ~~Adjustment for Reclassification, Consolidation~~the direct or ~~Merger. If while this Warrant,~~indirect sale, transfer, conveyance or ~~any portion hereof, remains outstanding and unexpired there shall be (i) a reorganization or recapitalization~~other disposition (other than ~~a combination, reclassification, exchange or subdivision~~by way of ~~shares otherwise provided for herein), (ii) a~~ merger or ~~consolidation of the Company with or into another corporation or other entity~~consolidation), in which the Company shall not be the surviving entity, or a reverse merger in which the Company shall be the surviving entity but the shares of the Company’s capital stock outstanding immediately prior to the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, or (iii) a sale or transfer of the Company’s properties and assets as, or substantially as, an entirety to any other corporation or other entity in one ~~transaction~~ or a series of related transactions, ~~then,~~of all or substantially all of the properties or assets of the Company and its subsidiaries, taken as a ~~part~~whole, to any Person that is not a subsidiary of the Company; (b) the Incumbent Directors cease for any reason to constitute at least a majority of the Board; (c) the date which is 10 business days prior to the consummation of a complete liquidation or dissolution of the Company; (d) the acquisition by any Person of Beneficial Ownership of more than 50% (on a fully diluted basis) of either (i) the then outstanding shares of Common Stock of the Company, taking into account as outstanding for this purpose such Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock or debt, and the exercise of any similar right to acquire such Common Stock (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this Plan, the following acquisitions shall not constitute a Change in Control: (A) any acquisition by the Company or any Affiliate, (B) any acquisition by any employee benefit plan sponsored or maintained by the Company or any subsidiary, (C) any acquisition which complies with clauses, (i), (ii) and (iii) of subsection (e) of this definition or (D) in respect of an Award held by a particular Participant, any acquisition by the Participant or any group of persons including the Participant (or any entity controlled by the Participant or any group of persons including the Participant); or (e) the consummation of a reorganization, ~~recapitalization,~~ merger, consolidation, ~~sale~~statutory share exchange or ~~transfer,~~similar form of corporate transaction involving the Company that requires the approval of the Company’s stockholders, whether for such transaction or the issuance of securities in the transaction (a “Business Combination”), unless ~~otherwise directed~~immediately following such Business Combination: (i) more than 50% of the total voting power of (A) the entity resulting from such Business Combination (the “Surviving Company”), or (B) if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of sufficient voting securities eligible to elect a majority of the members of the board of directors (or the analogous governing body) of the Surviving Company (the “Parent Company”), is represented by the ~~Holder, all necessary or appropriate lawful provisions shall be made so~~Outstanding Company Voting Securities that the Holder shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Exercise Price then in effect, the greatest number of shares of capital stock or other securities or property that a holder of the Warrant Shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, recapitalization, merger, consolidation, sale or transfer if this Warrant had been exercisedwere outstanding immediately prior to such ~~reorganization, recapitalization, merger, consolidation, sale~~Business Combination (or, if applicable, is represented by shares into which the Outstanding Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportion as the voting power of the Outstanding Company Voting Securities among the holders thereof immediately prior to the Business Combination; (ii) no Person (other than any employee benefit plan sponsored or ~~transfer, all~~maintained by the Surviving Company or the Parent Company) is or becomes the Beneficial Owner, directly or indirectly, of 50% or more of the total voting power of the outstanding voting securities eligible to elect members of the board of directors of the Parent Company (or the analogous governing body) (or, if there is no Parent Company, the Surviving Company); and (iii) at least a majority of the members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company, the Surviving Company) following the consummation of the Business Combination were Board members at the time of the Board’s approval of the execution of the initial agreement providing for such Business Combination. The foregoing notwithstanding, in no event shall a Change in Control be deemed to have occurred unless such change shall satisfy the definition of a change in control under Section 409A of the Code.

“Code” means the Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be deemed to include a reference to any regulations promulgated thereunder.

“Committee” means a committee of one or more members of the Board appointed by the Board to administer the Plan in accordance withSection3.3 andSection3.4.

“Common Stock” means the common stock, $0.01 par value per share, of the Company, or such other securities of the Company as may be designated by the Committee from time to time in substitution thereof.

“Consultant” means any individual who is engaged by the Company or any Affiliate to render consulting or advisory services.

“Continuous Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant or Director, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Participant renders such service,provided that there is no interruption or termination of the Participant’s Continuous Service;provided further that if any Award is subject to ~~further adjustment as provided in~~Section 409A of the Code, this ~~Section 3. If the per share consideration payable~~sentence shall only be given effect to the ~~Holder~~extent consistent with Section 409A of the Code. For example, a change in status from an Employee of the Company to a Director of an Affiliate will not constitute an interruption of Continuous Service. The Committee or its delegate, in its sole discretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any other personal or family leave of absence.

“Covered Employee” has the same meaning as set forth in Section 162(m)(3) of the Code, as interpreted by IRS Notice 2007-49.

“Director” means a member of the Board.

“Disability” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment;provided, however, for ~~Warrant Shares~~purposes of determining the term of an Incentive Stock Option pursuant toSection6.10 hereof, the term Disability shall have the meaning ascribed to it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall be determined under procedures established by the Committee. Except in ~~connection with~~situations where the Committee is determining Disability for purposes of the term of an Incentive Stock Option pursuant toSection6.10 hereof within the meaning of Section 22(e)(3) of the Code, the Committee may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate in which a Participant participates. The foregoing notwithstanding, in no event shall a Disability be deemed to have occurred unless such ~~transaction~~disability satisfies the requirements of Section 409A of the Code.

“Effective Date” shall mean the date as of which this Plan is inadopted by the Board.

“Employee” means any person, including an Officer or Director, employed by the Company or an Affiliate;provided, that, for purposes of determining eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a ~~form other than cash~~parent or ~~marketable securities, then~~subsidiary corporation within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director’s fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Fair Market Value” means, as of any date, the value of the Common Stock as determined below. If the Common Stock is listed on any established stock exchange or a national market system, including without limitation, the New York Stock Exchange or the Nasdaq Stock Market, the Fair Market Value shall be the closing price of a share of Common Stock (or if no sales were reported the closing price on the date immediately preceding such ~~consideration~~date) as quoted on such exchange or system on the day of determination, as reported in theWall Street Journal or similar publication. In the absence of an established market for the Common Stock, the Fair Market Value shall be determined in good faith by the ~~Company’s~~Committee and such determination shall be conclusive and binding on all persons.

“Grant Date” means the date on which the Committee adopts a resolution, or takes other appropriate action, expressly granting an Award to a Participant that specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution, then such date as is set forth in such resolution.

“Incentive Stock Option” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.

“Incumbent Directors” means individuals who, on the Effective Date, constitute the Board, ~~of Directors. The foregoing provisions of this paragraph shall similarly apply to successive reorganizations, recapitalizations, mergers, consolidations, sales and transfers and~~provided that any individual becoming a Director subsequent to the ~~capital stock~~Effective Date whose election or ~~securities~~nomination for election to the Board was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for Director without objection to such nomination) shall be an Incumbent Director. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to Directors or as a result of any other ~~corporation~~actual or threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director.

“Negative Discretion” means the discretion authorized by the Plan to be applied by the Committee to eliminate or reduce the size of a Performance Compensation Award in accordance withSection7.4(d)(iv) of the Plan. “Non-Employee Director” means a Director who is a “non-employee director” within the meaning of Rule 16b-3.

“Non-qualified Stock Option” means an Option that ~~are~~by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.

“Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

“Option” means an Incentive Stock Option or a Non-qualified Stock Option granted pursuant to the Plan.

“Optionholder” means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.

“Option Exercise Price” means the price at ~~the time receivable~~which a share of Common Stock may be purchased upon the exercise of ~~this Warrant. In all events, appropriate adjustment~~an Option.

“Outside Director” means a Director who is not a current employee of the Company, is not a former employee of the Company who receives compensation for prior services (other than benefits under a tax-qualified retirement plan) during the year, has not been an officer of the Company and does not receive remuneration from the Company, directly or indirectly, in any capacity other than as a director.

“Participant” means an eligible person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Award.

“Performance Compensation Award” means any Award designated by the Committee as a Performance Compensation Award pursuant toSection7.4 of the Plan.

“Performance Criteria” means the criterion or criteria that the Committee shall select for purposes of establishing the Performance Goal(s) for a Performance Period with respect to any Performance Compensation Award under the Plan. The Performance Criteria that will be used to establish the Performance Goal(s) shall be ~~made~~based on the attainment of specific levels of performance of the Company (or Affiliate, division, business unit or operational unit of the Company) and may include the following: (a) net earnings or net income (before or after taxes); (b) basic or diluted earnings per share (before or after taxes); (c) net revenue or net revenue growth; (d) gross revenue; (e) gross profit or gross profit growth; (f) net operating profit (before or after taxes); (g) return on assets, capital, invested capital, equity, or sales; (h) cash flow (including, but not limited to, operating cash flow, free cash flow, and cash flow return on capital); (i) earnings before or after taxes, interest, depreciation and/or amortization; (j) gross or operating margins; (k) improvements in capital structure; (l) budget and expense management; (m) productivity ratios; (n) economic value added or other value added measurements; (o) share price (including, but not limited to, growth measures and total stockholder return); (p) expense targets; (q) margins; (r) operating efficiency; (s) working capital targets; (t) enterprise value; (u) safety record; (v) completion of acquisitions or business expansion; (w) achieving research and development goals and milestones; (x) achieving product commercialization goals; and (y) other criteria as may be set by the Committee from time to time.

Any one or more of the Performance Criteria may be used on an absolute or relative basis to measure the performance of the Company and/or an Affiliate as a whole or any division, business unit or operational unit of the Company and/or an Affiliate or any combination thereof, as the Committee may deem appropriate, or as compared to the performance of a group of comparable companies, or published or special index that the Committee, in its sole discretion, deems appropriate, or the Committee may select Performance Criterion (o) above as compared to various stock market indices. The Committee also has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified in this paragraph, provided such accelerated vesting does not violate the rules of Code Section 409A. The Committee shall, within the first 90 days of a Performance Period (or, such longer or shorter time period as the Committee shall determine) define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period. In the event that applicable tax and/or securities laws change to permit the Committee discretion to alter the governing Performance Criteria without obtaining stockholder approval of such changes, the Committee shall have sole discretion to make such changes without obtaining stockholder approval.

“Performance Formula” means, for a Performance Period, the one or more objective formulas applied against the relevant Performance Goal to determine, with regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the Performance Compensation Award has been earned for the Performance Period.

“Performance Goals” means, for a Performance Period, the one or more goals established by the Committee for the Performance Period based upon the Performance Criteria. The Committee is authorized at any time during the first 90 days of a Performance Period (or such longer or shorter time period as the Committee shall determine) or at any time thereafter, in its sole and absolute discretion, to adjust or modify the calculation of a Performance Goal for such Performance Period to the extent permitted under Section 409A of the Code in order to prevent the dilution or enlargement of the rights of Participants based on the following events: (a) asset write-downs; (b) litigation or claim judgments or settlements; (c) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (d) any reorganization and restructuring programs; (e) extraordinary nonrecurring items as described in Accounting Principles Board Opinion No. 30 (or any successor or pronouncement thereto) and/or in management’s discussion and analysis of financial condition and results of operations appearing in the ~~application~~Company’s annual report to stockholders for the applicable year; (f) acquisitions or divestitures; (g) any other specific unusual or nonrecurring events, or objectively determinable category thereof; (h) foreign exchange gains and losses; and (i) a change in the Company’s fiscal year.

“Performance Period” means the one or more periods of time not less than one fiscal quarter in duration, as the Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to and the payment of a Performance Compensation Award.

“Performance Share” means the grant of a right to receive a number of actual shares of Common Stock or share units based upon the performance of the Company during a Performance Period, as determined by the Committee.

“Permitted Transferee” means: (a) a member of the Optionholder’s immediate family (child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships), any person sharing the Optionholder’s household (other than a tenant or employee), a trust in which these persons have more than 50% of the beneficial interest, a foundation in which these persons (or the Optionholder) control the management of assets, and any other entity in which these persons (or the Optionholder) own more than 50% of the voting interests; (b) third parties designated by the Committee in connection with a program established and approved by the Committee pursuant to which Participants may receive a cash payment or other consideration in consideration for the transfer of a Non-qualified Stock Option; and (c) such other transferees as may be permitted by the Committee in its sole discretion.

“Restricted Award” means any Award granted pursuant toSection7.2(a).

“Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.

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

“Stock Appreciation Right” means the right pursuant to an Award granted underSection7.1 to receive, upon exercise, an amount payable in cash or shares equal to the number of shares subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (a) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (b) the exercise price specified in the Stock Appreciation Right Award Agreement.

“Ten Percent Stockholder” means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any of its Affiliates.

3. Administration.

3.1. Authority of Committee. The Plan shall be administered by the Committee or, in the Board’s sole discretion, by the Board. Subject to the terms of the Plan and the provisions of ~~this Warrant~~Section 409A of the Code, the Committee’s charter and Applicable Laws, and in addition to other express powers and authorization conferred by the Plan, the Committee shall have the authority:

(a) to construe and interpret the Plan and apply its provisions;

(b) to promulgate, amend, and rescind rules and regulations relating to the administration of the Plan;

(c) to authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;

(d) to delegate its authority to one or more Officers of the Company with respect to Awards that do not involve Covered Employees or “insiders” within the meaning of Section 16 of the Exchange Act;

(e) to determine when Awards are to be granted under the Plan and the applicable Grant Date;

(f) from time to time to select, subject to the limitations set forth in this Plan, those Participants to whom Awards shall be granted;

(g) to determine the number of shares of Common Stock to be made subject to each Award;

(h) to determine whether each Option is to be an Incentive Stock Option or a Non-qualified Stock Option;

(i) to prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and vesting provisions, and to specify the provisions of the Award Agreement relating to such grant;

(j) to determine the target number of Performance Shares to be granted pursuant to a Performance Share Award, the performance measures that will be used to establish the performance goals, the performance period(s) and the number of Performance Shares earned by a Participant;

(k) to designate an Award (including a cash bonus) as a Performance Compensation Award and to select the Performance Criteria that will be used to establish the Performance Goals;

(l) to amend any outstanding Awards, including for the purpose of modifying the time or manner of vesting, or the term of any outstanding Award;provided, however, that if any such amendment impairs a Participant’s rights or increases a Participant’s obligations under his or her Award or creates or increases a Participant’s federal income tax liability with respect to an Award, such amendment shall also be subject to the Participant’s consent;

(m) to determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination of their employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees under the Company’s employment policies;

(n) to make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event that triggers anti-dilution adjustments;

(o) to interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument or agreement relating to, or Award granted under, the Plan; and

(p) to exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration of the Plan.

The Committee also may modify the purchase price or the exercise price of any outstanding Award,provided that if the modification effects a repricing, stockholder approval shall be required before the repricing is effective.

3.2. Committee Decisions Final. All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on the Company and the Participants, unless such decisions are determined by a court having jurisdiction to be arbitrary and capricious.

3.3. Delegation. The Committee, or if no Committee has been appointed, the Board, may delegate administration of the Plan to a committee or committees of one or more members of the Board, and the term “Committee” shall apply to any person or persons to whom such authority has been delegated. The Committee shall have the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board or the Committee shall thereafter be to the committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and re-vest in the Board the administration of the Plan. The members of the Committee shall be appointed by and serve at the pleasure of the Board. From time to time, the Board may increase or decrease the size of the Committee, add additional members to, remove members (with or without cause) from, appoint new members in substitution therefor, and fill vacancies, however caused, in the Committee. The Committee shall act pursuant to a vote of the majority of its members or, in the case of a Committee comprised of only two members, the unanimous consent of its members, whether present or not, or by the written consent of the majority of its members and minutes shall be kept of all of its meetings and copies thereof shall be provided to the Board. Subject to the limitations prescribed by the Plan and the Board, the Committee may establish and follow such rules and regulations for the conduct of its business as it may determine to be advisable.

3.4. Committee Composition. Except as otherwise determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors who are also Outside Directors. The Board shall have discretion to determine whether or not it intends to comply with the exemption requirements of Rule 16b-3. However, if the Board intends to satisfy such exemption requirements, with respect to Awards to any Covered Employee and with respect to any insider subject to Section 16 of the Exchange Act, the Committee shall be a compensation committee of the Board that at all times consists solely of two or more Non-Employee Directors who are also Outside Directors. Within the scope of such authority, the Board or the Committee may (a) delegate to a committee of one or more members of the Board who are not Outside Directors the authority to grant Awards to eligible persons who are not then Covered Employees and are not expected to be Covered Employees at the time of recognition of income resulting from such Award or (b) delegate to a committee of one or more members of the Board who are not Non-Employee Directors the authority to grant Awards to eligible persons who are not then subject to Section 16 of the Exchange Act. Nothing herein shall create an inference that an Award is not validly granted under the Plan in the event Awards are granted under the Plan by a compensation committee of the Board that does not at all times consist solely of two or more Non-Employee Directors who are also Outside Directors.

3.5. Indemnification. In addition to such other rights of indemnification as they may have as Directors or members of the Committee, and to the extent allowed by Applicable Laws, the Committee shall be indemnified by the Company against the reasonable expenses, including attorney’s fees, actually incurred in connection with any action, suit or proceeding or in connection with any appeal therein, to which the Committee may be party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted under the Plan, and against all amounts paid by the Committee in settlement thereof (provided, however, that the settlement has been approved by the Company, which approval shall not be unreasonably withheld) or paid by the Committee in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Committee did not act in good faith and in a manner which such person reasonably believed to be in the best interests of the ~~Holder~~Company, or in the case of a criminal proceeding, had no reason to believe that the conduct complained of was unlawful;provided, however, that within 60 days after institution of any such action, suit or proceeding, such Committee shall, in writing, offer the ~~transaction,~~Company the opportunity at its own expense to handle and defend such action, suit or proceeding.

4. Shares Subject to the ~~end that the provisions~~Plan.

4.1. Subject to adjustment in accordance withSection11, a total of ~~this Warrant~~5,000,000 shares of Common Stock shall be ~~applicable after that event,~~available for the grant of Awards under the Plan. Any shares of Common Stock granted in connection with Options and Stock Appreciation Rights shall be counted against this limit as ~~near~~one (1) share for every one (1) Option or Stock Appreciation Right awarded. Any shares of Common Stock granted in connection with Awards other than Options and Stock Appreciation Rights shall be counted against this limit as ~~reasonably may be,~~two (2) shares of Common Stock for every one (1) share of Common Stock granted in ~~relation~~connection with such Award. During the terms of the Awards, the Company shall keep available at all times the number of shares of Common Stock required to ~~any shares or other property deliverable or issuable after~~satisfy such ~~reorganization, recapitalization, merger, consolidation, sale or transfer upon exercise of this Warrant.~~Awards.

4.2. Shares of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued shares, treasury shares or shares reacquired by the Company in any manner.

~~(b)~~ ~~Adjustments for Split, Subdivision or Combination of Shares~~. If while this Warrant, or any portion hereof, remains outstanding and unexpired the Company shall subdivide (by any stock split, stock dividend, recapitalization, reorganization, reclassification or otherwise) the4.3. Any shares of Common Stock subject to ~~acquisition hereunder, then,~~an Award that is canceled, forfeited or expires prior to exercise or realization, either in full or in part, shall again become available for issuance under the Plan. Any shares of Common Stock that again become available for future grants pursuant to thisSection4.3 shall be added back as one (1) share if such shares were subject to Options or Stock Appreciation Rights and as two (2) shares if such shares were subject to other Awards. Notwithstanding anything to the contrary contained herein: shares subject to an Award under the Plan shall not again be made available for issuance or delivery under the Plan if such shares are (a) shares tendered in payment of an Option, (b) shares delivered or withheld by the Company to satisfy any tax withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation Right or other Awards that were not issued upon the ~~effective~~settlement of the Award.

5. Eligibility.

5.1. Eligibility for Specific Awards. Incentive Stock Options may be granted only to Employees. Awards other than Incentive Stock Options may be granted to Employees, Consultants and Directors and those individuals whom the Committee determines are reasonably expected to become Employees, Consultants and Directors following the Grant Date.

5.2. Ten Percent Stockholders. A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the Option Exercise Price is at least 110% of the Fair Market Value of the Common Stock at the Grant Date and the Option is not exercisable after the expiration of five years from the Grant Date.

6. Option Provisions. Each Option granted under the Plan shall be evidenced by an Award Agreement. Each Option so granted shall be subject to the conditions set forth in thisSection6, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. All Options shall be separately designated Incentive Stock Options or Non-qualified Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates will be issued for shares of Common Stock purchased on exercise of each type of Option. Notwithstanding the foregoing, the Company shall have no liability to any Participant or any other person if an Option designated as an Incentive Stock Option fails to qualify as such at any time or if an Option is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code and the terms of such Option do not satisfy the requirements of Section 409A of the Code. The provisions of separate Options need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions:

6.1. Term. Subject to the provisions ofSection5.2 regarding Ten Percent Stockholders, no Incentive Stock Option shall be exercisable after the expiration of 10 years from the Grant Date. The term of a Non-qualified Stock Option granted under the Plan shall be determined by the Committee;provided, however, no Non-qualified Stock Option shall be exercisable after the expiration of 10 years from the Grant Date.

6.2. Exercise Price of An Incentive Stock Option. Subject to the provisions ofSection5.2 regarding Ten Percent Stockholders, the Option Exercise Price of each Incentive Stock Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, an Incentive Stock Option may be granted with an Option Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 424(a) of the Code.

6.3. Exercise Price of a Non-qualified Stock Option. The Option Exercise Price of each Non-qualified Stock Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, a Non-qualified Stock Option may be granted with an Option Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 409A of the Code.

6.4. Consideration. The Option Exercise Price of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations, either (a) in cash or by certified or bank check at the time the Option is exercised or (b) in the discretion of the Committee, upon such terms as the Committee shall approve, the Option Exercise Price may be paid: (i) by delivery to the Company of other Common Stock, duly endorsed for transfer to the Company, with a Fair Market Value on the date of ~~such subdivision,~~delivery equal to the Option Exercise Price (or portion thereof) due for the number of shares being acquired, or by means of attestation whereby the Participant identifies for delivery specific shares of Common Stock that have an aggregate Fair Market Value on the date of attestation equal to the Option Exercise Price (or portion thereof) and receives a number of shares of Common Stock equal to the difference between the number of shares thereby purchased and the number of identified attestation shares of Common Stock (a “Stock for Stock Exchange”); (ii) a “cashless” exercise program established with a broker; (iii) by reduction in ~~effect immediately prior~~the number of shares of Common Stock otherwise deliverable upon exercise of such Option with a Fair Market Value equal to the aggregate Option Exercise Price at the time of exercise; (iv) any combination of the foregoing methods; or (v) in any other form of legal consideration that may be acceptable to the Committee. Unless otherwise specifically provided in the Option, the exercise price of Common Stock acquired pursuant to an Option that is paid by delivery (or attestation) to the Company of other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the Company that have been held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes). Notwithstanding the foregoing, during any period for which the Common Stock is publicly traded (i.e., the Common Stock is listed on any established stock exchange or a national market system) an exercise by a Director or Officer that involves or may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company, directly or indirectly, in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with respect to any Award under this Plan.

6.5. Transferability of An Incentive Stock Option. An Incentive Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.

6.6. Transferability of a Non-qualified Stock Option. A Non-qualified Stock Option may, in the sole discretion of the Committee, be transferable to a Permitted Transferee, upon written approval by the Committee to the extent provided in the Award Agreement. If the Non-qualified Stock Option does not provide for transferability, then the Non-qualified Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.

6.7. Vesting of Options. Each Option may, but need not, vest and therefore become exercisable in periodic installments that may, but need not, be equal. The Option may be subject to such ~~subdivision will~~other terms and conditions on the time or times when it may be ~~proportionately reduced~~exercised (which may be based on performance or other criteria) as the Committee may deem appropriate. The vesting provisions of individual Options may vary. No Option may be exercised for a fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for an acceleration of vesting and exercisability in the terms of any Award Agreement upon the occurrence of a specified event, provided such acceleration of vesting and exercisability complies with the provisions of Section 409A of the Code.

6.8. Termination of Continuous Service. Unless otherwise provided in an Award Agreement or in an employment agreement the terms of which have been approved by the Committee, in the event an Optionholder’s Continuous Service terminates (other than upon the Optionholder’s death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination) but only within such period of time ending on the earlier of (a) the date three months following the termination of the Optionholder’s Continuous Service or (b) the expiration of the term of the Option as set forth in the Award Agreement;provided that, if the termination of Continuous Service is by the Company for Cause, all outstanding Options (whether or not vested) shall immediately terminate and cease to be exercisable. If, after termination, the Optionholder does not exercise his or her Option within the time specified in the Award Agreement, the Option shall terminate.

6.9. Extension of Termination Date. An Optionholder’s Award Agreement may also provide that if the exercise of the Option following the termination of the Optionholder’s Continuous Service for any reason would be prohibited at any time because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act or any other state or federal securities law or the rules of any securities exchange or interdealer quotation system, then the Option shall terminate on the earlier of (a) the expiration of the term of the Option in accordance withSection6.1 or (b) the expiration of a period after termination of the Participant’s Continuous Service that is three months after the end of the period during which the exercise of the Option would be in violation of such registration or other securities law requirements.

6.10. Disability of Optionholder. Unless otherwise provided in an Award Agreement, in the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (a) the date 12 months following such termination or (b) the expiration of the term of the Option as set forth in the Award Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified herein or in the Award Agreement, the Option shall terminate.

6.11. Death of Optionholder. Unless otherwise provided in an Award Agreement, in the event an Optionholder’s Continuous Service terminates as a result of the Optionholder’s death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designated to exercise the Option upon the Optionholder’s death, but only within the period ending on the earlier of (a) the date 12 months following the date of death or (b) the expiration of the term of such Option as set forth in the Award Agreement. If, after the Optionholder’s death, the Option is not exercised within the time specified herein or in the Award Agreement, the Option shall terminate.

6.12. Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the Company and its Affiliates) exceeds $100,000, the Options or portions thereof which exceed such limit (according to the order in which they were granted) shall be treated as Non-qualified Stock Options.

7. Provisions of Awards Other Than Options.

7.1. Stock Appreciation Rights.

(a) General. Each Stock Appreciation Right granted under the Plan shall be evidenced by an Award Agreement. Each Stock Appreciation Right so granted shall be subject to the conditions set forth in thisSection7.1, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. Stock Appreciation Rights may be granted alone (“Free Standing Rights”) or in tandem with an Option granted under the Plan (“Related Rights”). All such grants shall comply with the provisions of Section 409A of the Code.

(b) Grant Requirements. Any Related Right that relates to a Non-qualified Stock Option may be granted at the same time the Option is granted or at any time thereafter but before the exercise or expiration of the Option. Any Related Right that relates to an Incentive Stock Option must be granted at the same time the Incentive Stock Option is granted.

(c) Term of Stock Appreciation Rights. The term of a Stock Appreciation Right granted under the Plan shall be determined by the Committee;provided, however, no Stock Appreciation Right shall be exercisable later than the tenth anniversary of the Grant Date.

(d) Vesting of Stock Appreciation Rights. Each Stock Appreciation Right may, but need not, vest and therefore become exercisable in periodic installments that may, but need not, be equal. The Stock Appreciation Right may be subject to such other terms and conditions on the time or times when it may be exercised as the Committee may deem appropriate. The vesting provisions of individual Stock Appreciation Rights may vary. No Stock Appreciation Right may be exercised for a fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for an acceleration of vesting and exercisability in the terms of any Stock Appreciation Right upon the occurrence of a specified event, provided such acceleration of vesting and exercisability complies with the provisions of Section 409A of the Code.

(e) Exercise and Payment. Upon exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company an amount equal to the number of shares of Common Stock subject to ~~acquisition~~the Stock Appreciation Right that is being exercised multiplied by the excess of (i) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (ii) the exercise price specified in the Stock Appreciation Right or related Option. Payment with respect to the exercise of a Stock Appreciation Right shall be made on the date of exercise. Payment shall be made in the form of shares of Common Stock (with or without restrictions as to substantial risk of forfeiture and transferability, as determined by the Committee in its sole discretion), cash or a combination thereof, as determined by the Committee.

(f) Exercise Price. The exercise price of a Free Standing Stock Appreciation Right shall be determined by the Committee, but shall not be less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date of such Stock Appreciation Right. A Related Right granted simultaneously with or subsequent to the grant of an Option and in conjunction therewith or in the alternative thereto shall have the same exercise price as the related Option, shall be transferable only upon the same terms and conditions as the related Option, and shall be exercisable only to the same extent as the related Option;provided, however, that a Stock Appreciation Right, by its terms, shall be exercisable only when the Fair Market Value per share of Common Stock subject to the Stock Appreciation Right and related Option exceeds the exercise price per share thereof and no Stock Appreciation Rights may be granted in tandem with an Option unless the Committee determines that the requirements ofSection7.1(b) are satisfied.

(g) Reduction in the Underlying Option Shares. Upon any exercise of a Related Right, the number of shares of Common Stock for which any related Option shall be exercisable shall be reduced by the number of shares for which the Stock Appreciation Right has been exercised. The number of shares of Common Stock for which a Related Right shall be exercisable shall be reduced upon any exercise of any related Option by the number of shares of Common Stock for which such Option has been exercised.

7.2. Restricted Awards.

(a) General. A Restricted Award is an Award of actual shares of Common Stock (“Restricted Stock”) or hypothetical Common Stock units (“Restricted Stock Units”) having a value equal to the Fair Market Value of an identical number of shares of Common Stock, which may, but need not, provide that such Restricted Award may not be sold, assigned, transferred or otherwise disposed of, pledged or hypothecated as collateral for a loan or as security for the performance of any obligation or for any other purpose for such period (the “Restricted Period”) as the Committee shall determine. Each Restricted Award granted under the Plan shall be evidenced by an Award Agreement. Each Restricted Award so granted shall be subject to the conditions set forth in thisSection7.2, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement.

(b) Restricted Stock and Restricted Stock Units.

(i) Each Participant granted Restricted Stock shall execute and deliver to the Company an Award Agreement with respect to the Restricted Stock setting forth the restrictions and other terms and conditions applicable to such Restricted Stock. If the Committee determines that the Restricted Stock shall be held by the Company or in escrow rather than delivered to the Participant pending the release of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (A) an escrow agreement satisfactory to the Committee, if applicable and (B) the appropriate blank stock power with respect to the Restricted Stock covered by such agreement. If a Participant fails to execute an agreement evidencing an Award of Restricted Stock and, if applicable, an escrow agreement and stock power, the Award shall be null and void. Subject to the restrictions set forth in the Award, the Participant generally shall have the rights and privileges of a stockholder as to such Restricted Stock, including the right to vote such Restricted Stock and the right to receive dividends;provided that, any cash dividends and stock dividends with respect to the Restricted Stock shall be withheld by the Company for the Participant’s account, and interest may be credited on the amount of the cash dividends withheld at a rate and subject to such terms as determined by the Committee. The cash dividends or stock dividends so withheld by the Committee and attributable to any particular share of Restricted Stock (and earnings thereon, if applicable) shall be distributed to the Participant in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends, if applicable, upon the release of restrictions on such share and, if such share is forfeited, the Participant shall have no right to such dividends.

(ii) The terms and conditions of a grant of Restricted Stock Units shall be reflected in an Award Agreement. No shares of Common Stock shall be issued at the time a Restricted Stock Unit is granted, and the Company will not be required to set aside a fund for the payment of any such Award. A Participant shall have no voting rights with respect to any Restricted Stock Units granted hereunder. The Committee may also grant Restricted Stock Units with a deferral feature, whereby settlement is deferred beyond the vesting date until the occurrence of a future payment date or event set forth in an Award Agreement (“Deferred Stock Units”). At the discretion of the Committee, each Restricted Stock Unit or Deferred Stock Unit (representing one share of Common Stock) may be credited with cash and stock dividends paid by the Company in respect of one share of Common Stock (“Dividend Equivalents”). Dividend Equivalents shall be withheld by the Company and credited to the Participant’s account, and interest may be credited on the amount of cash Dividend Equivalents credited to the Participant’s account at a rate and subject to such terms as determined by the Committee. Dividend Equivalents credited to a Participant’s account and attributable to any particular Restricted Stock Unit or Deferred Stock Unit (and earnings thereon, if applicable) shall be distributed in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such Dividend Equivalents and earnings, if applicable, to the Participant upon settlement of such Restricted Stock Unit or Deferred Stock Unit and, if such Restricted Stock Unit or Deferred Stock Unit is forfeited, the Participant shall have no right to such Dividend Equivalents.

(i) Restricted Stock awarded to a Participant shall be subject to the following restrictions until the expiration of the Restricted Period, and to such other terms and conditions as may be set forth in the applicable Award Agreement: (A) if an escrow arrangement is used, the Participant shall not be entitled to delivery of the stock certificate; (B) the shares shall be subject to the restrictions on transferability set forth in the Award Agreement; (C) the shares shall be subject to forfeiture to the extent provided in the applicable Award Agreement; and (D) to the extent such shares are forfeited, the stock certificates shall be returned to the Company, and all rights of the Participant to such shares and as a stockholder with respect to such shares shall terminate without further obligation on the part of the Company.

(ii) Restricted Stock Units and Deferred Stock Units awarded to any Participant shall be subject to (A) forfeiture until the expiration of the Restricted Period, and satisfaction of any applicable Performance Goals during such period, to the extent provided in the applicable Award Agreement, and to the extent such Restricted Stock Units or Deferred Stock Units are forfeited, all rights of the Participant to such Restricted Stock Units or Deferred Stock Units shall terminate without further obligation on the part of the Company and (B) such other terms and conditions as may be set forth in the applicable Award Agreement.

(iii) The Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock, Restricted Stock Units and Deferred Stock Units whenever it may determine that, by reason of changes in Applicable Laws or other changes in circumstances arising after the date the Restricted Stock or Restricted Stock Units or Deferred Stock Units are granted, such action is appropriate.

(d) Restricted Period. With respect to Restricted Awards, the Restricted Period shall commence on the Grant Date and end at the time or times set forth on a schedule established by the Committee in the applicable Award Agreement. No Restricted Award may be granted or settled for a fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for an acceleration of vesting in the terms of any Award Agreement upon the occurrence of a specified event, provided such acceleration is consistent with the provisions of Section 409A of the Code.

(e) Delivery of Restricted Stock and Settlement of Restricted Stock Units. Upon the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth inSection7.2(c) and the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his or her beneficiary, without charge, the stock certificate evidencing the shares of Restricted Stock which have not then been forfeited and with respect to which the Restricted Period has expired (to the nearest full share) and any cash dividends or stock dividends credited to the Participant’s account with respect to such Restricted Stock and the interest thereon, if any. Upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, or at the expiration of the deferral period with respect to any outstanding Deferred Stock Units, the Company shall deliver to the Participant, or his or her beneficiary, without charge, one share of Common Stock for each such outstanding vested Restricted Stock Unit or Deferred Stock Unit (“Vested Unit”) and cash equal to any Dividend Equivalents credited with respect to each such Vested Unit in accordance withSection7.2(b)(ii)hereof and the interest thereon or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to such Dividend Equivalents and the interest thereon, if any;provided, however, that, if explicitly provided in the applicable Award Agreement, the Committee may, in its sole discretion, elect to pay cash or part cash and part Common Stock in lieu of delivering only shares of Common Stock for Vested Units. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the Restricted Period lapsed in the case of Restricted Stock Units, or the delivery date in the case of Deferred Stock Units, with respect to each Vested Unit.

(f) Stock Restrictions. Each certificate representing Restricted Stock awarded under the Plan shall bear a legend in such form as the Company deems appropriate.

7.3. Performance Share Awards.

(a) Grant of Performance Share Awards. Each Performance Share Award granted under the Plan shall be evidenced by an Award Agreement. Each Performance Share Award so granted shall be subject to the conditions set forth in thisSection7.3, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. The Committee shall have the discretion to determine: (i) the number of shares of Common Stock or stock-denominated units subject to a Performance Share Award granted to any Participant; (ii) the performance period applicable to any Award; (iii) the conditions that must be satisfied for a Participant to earn an Award; and (iv) the other terms, conditions and restrictions of the Award.

(b) Earning Performance Share Awards. The number of Performance Shares earned by a Participant will depend on the extent to which the performance goals established by the Committee are attained within the applicable Performance Period, as determined by the Committee. No payout shall be made with respect to any Performance Share Award except upon written certification by the Committee that the minimum threshold performance goal(s) have been achieved.

7.4. Performance Compensation Awards.

(a) General. The Committee shall have the authority, at the time of grant of any Award described in this Plan (other than Options and Stock Appreciation Rights granted with an exercise price equal to or greater than the Fair Market Value per share of Common Stock on the Grant Date), to designate such Award as a Performance Compensation Award. In addition, the Committee shall have the authority to make an Award of a cash bonus to any Participant and designate such Award as a Performance Compensation Award.

(b) Eligibility. The Committee will, in its sole discretion, designate within the first 90 days of a Performance Period (or such shorter or longer time period as the Committee shall determine) which Participants will be eligible to receive Performance Compensation Awards in respect of such Performance Period. However, designation of a Participant eligible to receive an Award hereunder for a Performance Period shall not in any manner entitle the Participant to receive payment in respect of any Performance Compensation Award for such Performance Period. The determination as to whether or not such Participant becomes entitled to payment in respect of any Performance Compensation Award shall be decided solely in accordance with the provisions of thisSection7.4. Moreover, designation of a Participant eligible to receive an Award hereunder for a particular Performance Period shall not require designation of such Participant eligible to receive an Award hereunder in any subsequent Performance Period and designation of one person as a Participant eligible to receive an Award hereunder shall not require designation of any other person as a Participant eligible to receive an Award hereunder in such period or in any other period.

(c) Discretion of Committee with Respect to Performance Compensation Awards. With regard to a particular Performance Period, the Committee shall have full discretion to select the length of such Performance Period (provided any such Performance Period shall be not less than one fiscal quarter in duration), the type(s) of Performance Compensation Awards to be issued, the Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or level(s) of the Performance Goal(s) that is (are) to apply to the Company and the Performance Formula. Within the first 90 days of a Performance Period (or such shorter or longer time period as the Committee shall determine), the Committee shall, with regard to the Performance Compensation Awards to be issued for such Performance Period, exercise its discretion with respect to each of the matters enumerated in the immediately preceding sentence of thisSection7.4(c) and record the same in writing.

(d) Payment of Performance Compensation Awards.

(i) Condition to Receipt of Payment. Unless otherwise provided in the applicable Award Agreement, a Participant must be employed by the Company on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such Performance Period.

(ii) Limitation. A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the extent that: (A) the Performance Goals for such period are achieved; and (B) the Performance Formula as applied against such Performance Goals determines that all or some portion of such Participant’s Performance Compensation Award has been earned for the Performance Period.

(iii) Certification. Following the completion of a Performance Period, the Committee shall review and certify in writing whether, and to what extent, the Performance Goals for the Performance Period have been achieved and, if so, calculate and certify in writing the amount of the Performance Compensation Awards earned for the period based upon the Performance Formula. The Committee shall then determine the actual size of each Participant’s Performance Compensation Award for the Performance Period and, in so doing, may apply Negative Discretion in accordance withSection7.4(d)(iv) hereof, if and when it deems appropriate.

(iv) Use of Discretion. In determining the actual size of an individual Performance Compensation Award for a Performance Period, the Committee may reduce or eliminate the amount of the Performance Compensation Award earned under the Performance Formula in the Performance Period through the use of Negative Discretion if, in its sole judgment, such reduction or elimination is appropriate. The Committee shall not have the discretion to grant or provide payment in respect of Performance Compensation Awards for a Performance Period if the Performance Goals for such Performance Period have not been attained.

(v) Timing of Award Payments. Performance Compensation Awards granted for a Performance Period shall be paid to Participants as soon as administratively practicable following completion of the certifications required by thisSection7.4 but in no event later than 2 1/2 months following the end of the fiscal year during which the Performance Period is completed.

8. Securities Law Compliance. Each Award Agreement shall provide that no shares of Common Stock shall be purchased or sold thereunder unless and until (a) any then applicable requirements of state or federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel and (b) if required to do so by the Company, the Participant has executed and delivered to the Company a letter of investment intent in such form and containing such provisions as the Committee may require. The Company shall use reasonable efforts to seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Awards and to issue and sell shares of Common Stock upon exercise of the ~~Warrant will be proportionately increased. If~~Awards;provided, however, that this undertaking shall not require the Company to register under the Securities Act the Plan, any Award or any Common Stock issued or issuable pursuant to any such Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Awards unless and until such authority is obtained.

9. Use of Proceeds from Stock. Proceeds from the sale of Common Stock pursuant to Awards, or upon exercise thereof, shall constitute general funds of the Company.

10. Miscellaneous.

10.1. Acceleration of Exercisability and Vesting. The Committee shall have the power to accelerate the time at which an Award may first be exercised or the time during which an Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Award stating the time ~~combines (by reverse stock split, recapitalization, reorganization, reclassification~~at which it may first be exercised or ~~otherwise)~~ the time during which it will vest, provided any such acceleration or exercisability or vesting is in compliance with the provisions of Section 409A of the Code.

10.2. Stockholder Rights. Except as provided in the Plan or an Award Agreement, no Participant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Award unless and until such Participant has satisfied all requirements for exercise of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions of other rights for which the record date is prior to the date such Common Stock certificate is issued, except as provided inSection11 hereof.

10.3. No Employment or Other Service Rights. Nothing in the Plan or any instrument executed or Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted or shall affect the right of the Company or an Affiliate to terminate (a) the employment of an Employee with or without notice and with or without Cause or (b) the service of a Director pursuant to the By-laws of the Company or an Affiliate, and any applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.

10.4. Transfer; Approved Leave of Absence. For purposes of the Plan, no termination of employment by an Employee shall be deemed to result from either (a) a transfer of employment to the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another, or (b) an approved leave of absence for military service or sickness, or for any other purpose approved by the Company, if the Employee’s right to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Committee otherwise so provides in writing, in either case, except to the extent inconsistent with Section 409A of the Code if the applicable Award is subject thereto.

10.5. Withholding Obligations. To the extent provided by the terms of an Award Agreement and subject to the discretion of the Committee, the Participant may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition ~~hereunder, then, upon~~of Common Stock under an Award by any of the ~~effective date~~following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (a) tendering a cash payment; (b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Award,provided, however, that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law; or (c) delivering to the Company previously owned and unencumbered shares of Common Stock of the Company.

11. Adjustments Upon Changes in Stock. In the event of changes in the outstanding Common Stock or in the capital structure of the Company by reason of any stock or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization, reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the ~~Exercise Price in effect immediately prior to such combination will be proportionately increased~~Grant Date of any Award, Awards granted under the Plan and any Award Agreements, the exercise price of Options and Stock Appreciation Rights, the maximum number of shares of Common Stock subject to ~~acquisition upon exercise of~~all Awards stated inSection4and the ~~Warrant will be proportionately decreased.~~

~~(c)~~ ~~Notice of Adjustments. Upon any adjustment of the Exercise Price and any increase or decrease in the~~maximum number of Warrant Shares purchasable upon the exercise of this Warrant, then, and in each such case, the Company, within 15 days thereafter, shall give written notice thereof to the Holder at the address of such Holder as shown on the books of the Company, which notice shall state the Exercise Price as adjusted and, if applicable, the increased or decreased number of Warrant Shares purchasable upon the exercise of this Warrant, setting forth in reasonable detail the method of calculation of each.

4. ~~Participation Rights~~.

~~(a)~~ ~~Rights upon Distribution of Assets~~. Except with respect to such events in which an adjustment to the Exercise Price has been made pursuant to Section 3 above, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock ~~by way~~with respect to which any one person may be granted Awards during any period stated inSection4 will be equitably adjusted or substituted, as to the number, price or kind of ~~return~~a share of ~~capital or otherwise (including, without limitation, any distribution of cash, stock~~Common Stock or other ~~securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a "~~~~Distribution~~~~"), at any time after the issuance of this Warrant, then, in each~~consideration subject to such ~~case, the Company shall provide at least thirty (30) days advance written notice to the Holder of its intention to make the Distribution and,~~Awards to the extent ~~this Warrant has vested in accordance with Section 2(a)(ii),~~necessary to preserve the ~~Holder may exercise this Warrant during~~economic intent of such ~~thirty (30) day period and will be entitled to receive~~Award. In the ~~property that is the subject~~case of ~~the Distribution with respect to the number of Warrant Shares received upon such exercise.~~

~~(b)~~ ~~Purchase Rights. In addition to any~~ adjustments made pursuant to thisSection ~~3 above, if at any time~~11, unless the ~~Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property,~~Committee specifically determines that such adjustment is in ~~each case pro rata to~~ the ~~record holders of any class of Common Stock (the "~~~~Purchase Rights~~"), then in each such case, the Company shall provide at least thirty (30) days advance written notice to the Holder of its intention to grant, issue or sell such Purchase Rights and, to the extent this Warrant has vested in accordance with Section 2(a)(ii), the Holder may exercise this Warrant during such thirty (30) day period and will be entitled to receive Purchase Rights with respect to the number of Warrant Shares received upon such exercise.

5. ~~Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be delivered in accordance with Section 11.3 of the Contribution Agreement.~~

6. ~~Legends~~. Unless the Warrant Shares are registered for resale with the Commission, each certificate evidencing the Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with an appropriate restrictive legend.

7. ~~Removal of Legend~~. Upon request of a holder of a certificate with the legends required by Section 6 hereof, the Company shall issue to such holder a new certificate therefor free of any transfer legend, if, with such request, the Company shall have received an opinion of counsel satisfactory to the Company in form and substance to the effect that any transfer by such holder of the Warrant Shares evidenced by such certificate will not violate the Securities Act or any applicable state securities laws.

8. ~~Fractional Shares~~. No fractional Warrant Shares will be issued in connection with any exercise hereunder. Instead, the Company shall round up, as nearly as practicable to the nearest whole Share, the number of Warrant Shares to be issued.

9. ~~Rights of Stockholders~~. Except as expressly provided herein, the Holder, as such, shall not be entitled to vote or be deemed the holder of the Warrant Shares or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholderbest interests of the Company or its Affiliates, the Committee shall, in the case of Incentive Stock Options, ensure that any ~~right to vote for the election of directors~~adjustments under thisSection11 will not constitute a modification, extension or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or otherwise until this Warrant shall have been exercised and the Warrant Shares purchasable upon the exercise hereof shall have been issued, as provided herein.

~~10.~~ ~~No Transfer~~. This Warrant shall be assignable and transferable, provided that no such assignment and transfer shall be valid unless the same shall be valid under and undertaken in accordance with applicable law, rule or regulation.

~~11.~~ ~~Miscellaneous~~.

~~(a) This Warrant and disputes arising hereunder shall be governed by and construed and enforced in accordance with the laws~~renewal of the ~~State~~Incentive Stock Options within the meaning of ~~Delaware applicable to agreements made and to be performed wholly within such State, without regard to its conflict of law rules.~~

~~(b) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any~~Section 424(h)(3) of the ~~terms hereof.~~

~~(c) The covenants of the respective parties contained herein shall survive the execution and delivery of this Warrant.~~

(d) The terms of this Warrant shall be binding upon and shall inure to the benefit of any successors or permitted assigns of the Company and of the Holder and of the Warrant Shares issued or issuable upon the exercise hereof.

~~(e) This Warrant and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subject hereof.~~

(f) The Company shall not, by amendment of its Certificate of Incorporation or Bylaws, or through any other means, directly or indirectly, avoid or seek to avoid the observance or performance of any of the terms of this Warrant and shall at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder contained herein against impairment.

~~(g) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant~~Code and in the case of Non-qualified Stock Options, ensure that any adjustments under thisSection11 will not constitute a modification of such ~~loss, theft or destruction, upon delivery~~Non-qualified Stock Options within the meaning of Section 409A of the Code. Any adjustments made under thisSection11 shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an ~~indemnity agreement reasonably satisfactory~~adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes.

12. Effect of Change in ~~form~~Control.

12.1. In the discretion of the Board and ~~amount~~the Committee, any Award Agreement may provide, or the Board or the Committee may provide by amendment of any Award Agreement or otherwise, notwithstanding any provision of the Plan to the Company, or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company, at its expense, will execute and deliver to the Holder, in lieu thereof, a new Warrant of like date and tenor.

~~(h) This Warrant and any provision hereof may be amended, waived or terminated only by an instrument in writing signed by the Company and the Holder.~~

(i) The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agreescontrary, that in the event of a Change in Control, Options and/or Stock Appreciation Rights shall become immediately exercisable with respect to all or a specified portion of the shares subject to such Options or Stock Appreciation Rights, and/or the Restricted Period shall expire immediately with respect to all or a specified portion of the shares of Restricted Stock or Restricted Stock Units.

12.2. In addition, in the event of a Change in Control, the Committee may in its discretion and upon at least 10 days’ advance notice to the affected persons, cancel any outstanding Awards and pay to the holders thereof, in cash or stock, or any combination thereof, the value of such ~~breach~~Awards based upon the price per share of Common Stock received or ~~threatened breach,~~to be received by other stockholders of the ~~holder~~Company in the event. In the case of ~~this Warrant~~any Option or Stock Appreciation Right with an exercise price that equals or exceeds the price paid for a share of Common Stock in connection with the Change in Control, the Committee may cancel the Option or Stock Appreciation Right without the payment of consideration therefor.

12.3. The obligations of the Company under the Plan shall be ~~entitled,~~binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to all or substantially all of the assets and business of the Company and its Subsidiaries, taken as a whole.

13. Amendment of the Plan and Awards.

13.1. Amendment of Plan. The Board at any time, and from time to time, may amend or terminate the Plan. However, except as provided inSection11 relating to adjustments upon changes in Common Stock andSection13.3, no amendment shall be effective unless approved by the stockholders of the Company to the extent stockholder approval is necessary to satisfy any Applicable Laws. At the time of such amendment, the Board shall determine, upon advice from counsel, whether such amendment will be contingent on stockholder approval.

13.2. Stockholder Approval. The Board may, in its sole discretion, submit any other amendment to the Plan for stockholder approval.

13.3. Contemplated Amendments. It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide eligible Employees, Consultants and Directors with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder relating to Incentive Stock Options or to the nonqualified deferred compensation provisions of Section 409A of the Code and/or to bring the Plan and/or Awards granted under it into compliance therewith.

13.4. No Impairment of Rights. Rights under any Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (a) the Company requests the consent of the Participant and (b) the Participant consents in writing.

13.5. Amendment of Awards. The Committee at any time, and from time to time, may amend the terms of any one or more Awards;provided, however, that the Committee may not affect any amendment which would otherwise constitute an impairment of the rights under any Award unless (a) the Company requests the consent of the Participant and (b) the Participant consents in writing.

14. General Provisions.

14.1. Forfeiture Events. The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect to an Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition to ~~all other available remedies, to~~applicable vesting conditions of an ~~injunction restraining any~~Award. Such events may include, without limitation, breach ~~without the necessity~~ of ~~showing economic loss and without any bond~~non-competition, non-solicitation, confidentiality, or other ~~security being required.~~restrictive covenants that are contained in the Award Agreement or otherwise applicable to the Participant, a termination of the Participant’s Continuous Service for Cause, or other conduct by the Participant that is detrimental to the business or reputation of the Company and/or its Affiliates.

~~(j)~~14.2. Clawback. Notwithstanding ~~anything herein~~any other provisions in this Plan, any Award which is subject to recovery under any law, government regulation or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing requirement).

14.3. Other Compensation Arrangements. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to stockholder approval if such approval is required; and such arrangements may be either generally applicable or applicable only in specific cases.

14.4. Sub-plans. The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying blue sky, securities, tax or other laws of various jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms and conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but each sub-plan shall apply only to the ~~contrary,~~Participants in nothe jurisdiction for which the sub-plan was designed.

14.5. Deferral of Awards. The Committee may establish one or more programs under the Plan to permit selected Participants the opportunity to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event ~~will~~that absent the ~~Holder hereof be entitled~~election would entitle the Participant to ~~receive a net-cash settlement as liquidated damages in lieu~~payment or receipt of ~~physical settlement in~~ shares of Common Stock ~~regardless~~or other consideration under an Award. The Committee may establish the election procedures, the timing of ~~whether~~such elections, the ~~Common Stock underlying this Warrant is registered pursuant to an effective registration statement; provided, however,~~mechanisms for payments of, and accrual of interest or other earnings, if any, on amounts, shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the ~~foregoing will not preclude~~Committee deems advisable for the ~~Holder from seeking other remedies at law or equity for breaches by~~administration of any such deferral program. All of such programs and procedures shall be consistent with the ~~Company~~rules of ~~its registration obligations to~~Section 409A of the ~~Holder.~~Code.

~~12.~~14.6. ~~Certain Defined Terms~~Unfunded Plan. The Plan shall be unfunded. Neither the Company, the Board nor the Committee shall be required to establish any special or separate fund or to segregate any assets to assure the performance of its obligations under the Plan.

14.7. Recapitalizations. Each Award Agreement shall contain provisions required to reflect the provisions ofSection11.

~~(a) "~~~~Closing Sale Price~~~~" means,~~14.8. Delivery. Upon exercise of a right granted under this Plan, the Company shall issue Common Stock or pay any amounts due within a reasonable period of time thereafter. Subject to any statutory or regulatory obligations the Company may otherwise have, for ~~any security as~~purposes of any date, the last closing trade price for such security on an Eligible Market that is the principal market for such security, as reported by Bloomberg, or, if the Eligible Market that is the principal market for such security begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York Time, as reported by Bloomberg, or, if the Eligible Market for such security is not the principal securities exchange or trading market for such security, the 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 trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the OTC Link or "pink sheets" by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such datethis Plan, thirty (30) days shall be ~~the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value~~considered a reasonable period of such security, then such dispute shall be resolved pursuant to Section 1(c). All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction during the applicable calculation period.

~~(b) "~~~~Eligible Market~~" means the OTC Bulletin Board, OTCQX Market and/or OTCQB Market operated by OTC Markets Group, Inc., the NYSE MKT LLC, The NASDAQ Global Market, The NASDAQ Global Select Market, The NASDAQ Capital Market or The New York Stock Exchange, Inc.time.

~~(c) "~~~~Trading Day~~~~" means any day on which the Common Stock is traded on an Eligible Market that is the principal market for such security;~~14.9. ~~provided~~No Fractional Shares that "Trading Day" 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).

~~[Signature Page Follows]~~

~~IN WITNESS WHEREOF~~~~, the Company has caused this Warrant to be signed by its duly authorized officer.~~

	~~PHOTOMEDEX, INC.~~

	~~By:~~
		~~Name:~~
		~~Title:~~

~~Exhibit A~~

~~NOTICE OF EXERCISE~~

~~TO: PhotoMedex, Inc., attention: President~~

The undersigned hereby elects to purchase the below referenced shares (the “Warrant Shares”) of Common Stock of PhotoMedex, Inc. (the “Company”) pursuant to the terms of this Warrant, and tenders herewith payment of the purchase price of such Warrant Shares in full. Payment of the purchase price is being made by (check one):

~~____________ a cash exercise with respect to _________________ Warrant Shares; or~~

~~____________ a "cashless exercise" with respect to _______________ Warrant Shares~~

~~(as permitted pursuant to Section 2(b) of the Warrant).~~

~~Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name as is specified below:~~

~~1. Name: __________________________________________________~~

~~2. Address: ________________________________________________~~

~~3. DWAC Instructions (if applicable): ___________________________________________~~

~~The undersigned hereby represents and warrants the following:~~

(a) It (i) has such knowledge and experience in financial and business affairs that he/she/it is capable of evaluating the merits and risks involved in purchasing the Warrant Shares, (ii) is able to bear the economic risks involved in purchasing the Warrant Shares, and (iii) is an “accredited investor,” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended;

(b) In making the decision to purchase the Warrant Shares, it has relied solely on independent investigations made by it and has had the opportunity to ask questions of, and receive answers from, the Company concerning the Warrant Shares, the financial condition, prospective business and operations of the Company and has otherwise had an opportunity to obtain any additional information, to the extent that the Company possess such information or could acquire it without unreasonable effort or expense;

(c) Its overall commitment to investments that are not readily marketable is not disproportionate to its net worth and income, and the purchase of the Warrant Shares will not cause such overall commitment to become disproportionate; it can afford to bear the loss of the purchase price of the Warrant Shares;

~~(d) It has no present need for liquidity in its investment in the Warrant Shares; and~~

(e) It acknowledges that the transaction contemplated in connection with the purchase of the Warrant Shares has not been reviewed or approved by the Securities and Exchange Commission or by any administrative agency charged with the administration of the securities laws of any state, and that no such agency has passed on or made any recommendation or endorsement of any of the securities contemplated hereby.


	~~(Signature)~~

~~ANNEX C~~

~~First Amendment to the Interest Contribution Agreement~~

~~August 3, 2017~~

~~Mr. Suneet Singal~~

~~Authorized Representative~~

~~First Capital Real Estate Operating Partnership, L.P.~~

~~First Capital Real Estate Trust Incorporated~~

~~60 Broad Street~~

34^th ~~Floor~~

~~New York, NY 10004~~

~~Re:~~

Amendment No. 1 to Interest Contribution Agreement, dated March 31, 2017, among First Capital Real Estate Operating Partnership, L.P., First Capital Real Estate Trust Incorporated, FC Global Realty Operating Partnership, LLC and PhotoMedex, Inc., as modified by the Agreement to Waive Closing Deliverables, dated May 17, 2017, and the Agreement to Waive Closing Deliverables, dated July 3, 2017 (collectively, the “~~Contribution Agreement~~~~”). Capitalized terms used, but not otherwise defined, herein have the meanings ascribed to them in the Contribution Agreement.~~

~~Dear Suneet,~~

~~As you know, since entering into the Contribution Agreement, the Acquiror Parent received notice from The NASDAQ Stock Market LLC (“~~~~NASDAQ~~”) indicating that, based upon the the Acquiror Parent’s non-compliance with NASDAQ Listing Rule 5110, which requires an issuer to file an initial listing application and satisfy the initial listing criteria upon completion of a change of control transaction, the NASDAQ Hearings Panel had determined to delist the Acquiror Parent’s common stock from NASDAQ and that trading of the Acquiror Parent’s common stock was suspended on NASDAQ effective with the open of trading on July 7, 2017. The Acquiror has appealed that decision, has already filed an initial listing application with NASDAQ, and is working to evidence full compliance with the applicable NASDAQ Listing Rules as soon as possible.

While awaiting that appeal, the Acquiror Parent’s stock remains listed, but suspended from trading, on NASDAQ. The stock has commenced trading on the OTCQB. The Securities and Exchange Commission (the “~~SEC~~”) considers the OTCQB marketplace to be an “established public market” for the purpose of determining the public market price of a company’s stock when registering securities for resale with the SEC, and the majority of broker-dealers trade stocks on the OTCQB marketplace.

~~Because of the cessation of trading on NASDAQ, the Parties agree to amend the Contribution Agreement as follows:~~

~~Waiver~~. The Contributor Parties hereby irrevocably waive any conditions to the Closing, including those contained in Section 7 of the Contribution Agreement, that require the Acquiror Parent to maintain its listing and active trading of its securities on any of the NASDAQ markets.

~~First Capital Real Estate Operating Partnership, L.P.~~

~~First Capital Real Estate Trust Incorporated~~

~~July 31, 2017~~

~~Page 2~~

~~Reaffirmation of Obligation to Contribute Mandatory Entity Interests~~. The Contributor Parties hereby reaffirm their obligation to use their best efforts to satisfy the Mandatory Contribution Conditions and contribute the Mandatory Entity Interests on or before December 31, 2017.

~~Confirmation Regarding Mandatory Contribution of Mandatory Entity Interests~~. The Acquiror Parties confirm the Contributor Parties’ understanding that the failure of the Contributor Parties to satisfy the Mandatory Contribution Conditions after using commercially reasonable efforts to do so does not give rise to a unilateral right of the Acquiror Parties to terminate the Contribution Agreement pursuant to Article 10 of the Contribution Agreement.

~~References to NASDAQ in the Contribution Agreement and Exhibits~~. The Parties agree that all references in the Contribution Agreement and each of the exhibits to the Contribution Agreement to NASDAQ shall, to the extent necessary, be deemed to be references to NASDAQ or such other trading market as the Company’s securities may be trading on, including, without limitation, the OTCQB. For the avoidance of doubt, for purposes of calculating the number of Acquiror Parent Shares into which principal under the Payout Notes will be converted for purposes of Section 6.17 and the Payout Notes, if the Acquiror Parent Shares are not traded on NASDAQ on the Approval Date, VWAP shall be calculated with respect to transaction in Acquiror Parent Shares executed on the OTCQB or such other market as the Acquiror Parent Shares may then be traded on instead of NASDAQ.

~~Except as aforesaid, the Interest Contribution Agreement remain unmodified and in full force and effect.~~

~~Very truly yours,~~

	~~PhotoMedex, Inc.~~		~~FC Global Realty Operating Partnership, LLC~~

	~~By:~~	~~/s/ Stephen Johnson~~	~~By:~~	~~/s/ Stephen Johnson~~
	~~Stephen Johnson, CFO~~		~~Stephen Johnson, CFO~~

	~~ACCEPTED AND AGREED TO:~~

~~First Capital Real Estate Operating Partnership, L.P.~~		~~First Capital Real Estate Trust Incorporated~~

~~By:~~	~~/s/ Suneet Singal~~	~~By:~~	~~/s/ Suneet Singal~~
~~Suneet Singal, CEO~~		~~Suneet Singal, CEO~~

~~ANNEX D~~

~~Form of Amendment to Amended and Restated Articles of Incorporation~~

~~To Effect a Reverse Stock Split~~

~~The Amended and Restated Articles of Incorporation of PhotoMedex, Inc. are hereby amended as follows:~~

~~Article 3 of the Amended and Restated Articles of Incorporation is hereby amended to add the following subsection:~~

(e) Upon the filing and effectiveness (the "Effective Time") pursuant to the Nevada General Corporation Law of this Certificate of Amendment to the Articles of Incorporation of PhotoMedex, Inc. (the “Corporation”), each [two, three, four, five, six or seven] (2 3, 4, 5, 6, 7) shares of Common Stock issued and outstanding immediately prior to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one (1) share of Common Stock (the "Reverse Stock Split"). No ~~fractional shares shall be issued in connection with the Reverse Stock Split. Stockholders who otherwise would be entitled to receive~~ fractional shares of Common Stock shall be ~~entitled to receive shares rounded up~~issued or delivered pursuant to the ~~nearest whole share.~~Plan. The Committee shall determine whether cash, additional Awards or other securities or property shall be issued or paid in lieu of fractional shares of Common Stock or whether any fractional shares should be rounded, forfeited or otherwise eliminated.

14.10. Other Provisions. The Award Agreements authorized under the Plan may contain such other provisions not inconsistent with this Plan, including, without limitation, restrictions upon the exercise of the Awards, as the Committee may deem advisable.

~~PROXY CARD~~14.11. Section 409A. The Plan is intended to comply with Section 409A of the Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted and administered to be in compliance therewith. Any payments described in the Plan that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless Applicable Laws require otherwise. Notwithstanding anything to the contrary in the Plan, to the extent required to avoid accelerated taxation and tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to the Plan during the six (6) month period immediately following the Participant’s termination of Continuous Service shall instead be paid on the first payroll date after the six-month anniversary of the Participant’s separation from service (or the Participant’s death, if earlier). Notwithstanding the foregoing, neither the Company nor the Committee shall have any obligation to take any action to prevent the assessment of any excise tax or penalty on any Participant under Section 409A of the Code and neither the Company nor the Committee will have any liability to any Participant for such tax or penalty.

14.12. Disqualifying Dispositions. Any Participant who shall make a “disposition” (as defined in Section 424 of the Code) of all or any portion of shares of Common Stock acquired upon exercise of an Incentive Stock Option within two years from the Grant Date of such Incentive Stock Option or within one year after the issuance of the shares of Common Stock acquired upon exercise of such Incentive Stock Option (a “Disqualifying Disposition”) shall be required to immediately advise the Company in writing as to the occurrence of the sale and the price realized upon the sale of such shares of Common Stock.

14.13. Section 16. It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under Section 16 of the Exchange Act. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed in thisSection14.13, such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict.

14.14. Beneficiary Designation. Each Participant under the Plan may from time to time name any beneficiary or beneficiaries by whom any right under the Plan is to be exercised in case of such Participant’s death. Each designation will revoke all prior designations by the same Participant, shall be in a form reasonably prescribed by the Committee and shall be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime.

14.15. Expenses. The costs of administering the Plan shall be paid by the Company.

14.16. Severability. If any of the provisions of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole or in part, such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining provisions shall not be affected thereby.

14.17. Plan Headings. The headings in the Plan are for purposes of convenience only and are not intended to define or limit the construction of the provisions hereof.

14.18. Non-Uniform Treatment. The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons who are eligible to receive, or actually receive, Awards. Without limiting the generality of the foregoing, the Committee shall be entitled to make non-uniform and selective determinations, amendments and adjustments, and to enter into non-uniform and selective Award Agreements.

15. Effective Date of Plan. The Plan shall become effective as of the Effective Date, but no Award shall be exercised (or, in the case of a stock Award, shall be granted) unless and until the Plan has been approved by the stockholders of the Company, which approval shall be within twelve (12) months before or after the date the Plan is adopted by the Board.

16. Termination or Suspension of the Plan. The Plan shall terminate automatically on April 18, 2028. No Award shall be granted pursuant to the Plan after such date, but Awards theretofore granted may extend beyond that date. The Board may suspend or terminate the Plan at any earlier date pursuant toSection13.1 hereof, provided any such suspension or termination is consistent with the provisions of Section 409A of the Code. No Awards may be granted under the Plan while the Plan is suspended or after it is terminated.

17. Choice of Law. Except to the extent governed by Federal law, the law of the State of Nevada shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such state’s conflict of law rules.

Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Combined Document is available at www.proxyvote.com.

¨☐	Preliminary Proxy Statement
¨☐	Confidential, for Use of the Commission Only (as Permitted by Rule 14a-6(e)(2))
x☒	Definitive Proxy Statement
¨☐	Definitive Additional Materials
¨☐	Solicitation Material Pursuant to Rule 14a-11(c) or rule 14a-12

x☒	No fee required.
¨☐	Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

	BY ORDER OF THE BOARD OF DIRECTORS,

	/s/ Michele Pupach
	Michele Pupach
	Secretary

INTRODUCTION	1

QUESTIONS AND ANSWERS ABOUT THE ANNUAL MEETING AND THE PROPOSALS	3

When and where will the Meeting take place?	3

What proposals are the stockholders being asked to consider?	3

What are the recommendations of the Board?	3

What is the Record Date for the Meeting?	3

Who can vote at the Meeting?	3

What is the proxy card?	3

What is the difference between holding shares as a stockholder of record and as a beneficial owner?	3

What is the quorum required for the Meeting?	4

Assuming that a quorum is present, what vote is required to approve the proposals to be voted upon at the Meeting?	4

How do I vote?	4

What are the effects of not voting or abstaining? What are the effects of broker non-votes?	5

What does it mean if I received more than one proxy card?	5

What happens if I don’t indicate how to vote my proxy?	5

What happens if I sell my shares after the record date but before the Meeting?	5

What if I change my mind after I return my proxy?	5

Who can help answer my other questions?	6

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT	7

DIRECTORS AND EXECUTIVE OFFICERS	8

Directors and Executive Officers	8

Family Relationships	11
	10
Involvement in Certain Legal Proceedings	11
	10
CORPORATE GOVERNANCE	12
	11
Overview	12
	11
Governance Structure	12
	11
The Board’s Role in Risk Oversight	12
	11
Independent Directors	12
	11
Audit Committee	12
	11
Compensation Committee	13
	12
Nominations and Corporate Governance Committee	14
	12
Stockholder Communications with the Board of Directors	15
	13
Code of Ethics	15
	13
REPORT OF THE AUDIT COMMITTEE	16
	14
EXECUTIVE COMPENSATION	17
	15
Summary Compensation Table - Fiscal Years Ended December 31, ~~2016~~2017 and ~~2015~~2016	17
	15
Outstanding Equity Awards Value at Fiscal ~~Year-End~~Year End Table	17

Director Compensation	18
	17
TRANSACTIONS WITH RELATED PERSONS	19

Name and Address of Beneficial Owner	Title of Class	Amount and Nature of Beneficial Ownership⁽¹⁾		Percent of Class⁽²⁾
Suneet Singal, Chief Executive Officer⁽³⁾	Common Stock		879,234		16.60	%
Stephen M. Johnson, Chief Financial Officer	Common Stock		0		*
Richard J. Leider, Director	Common Stock		0		*
Bob Froehlich, Chairman and Director	Common Stock		0		*
Dolev Rafaeli, Director⁽⁴⁾	Common Stock		185,375		3.50	%
Dennis M. McGrath, Director⁽⁵⁾	Common Stock		88,768		1.68	%
Michael R. Stewart, Director	Common Stock		0		*
Darrel C. Menthe, Director	Common Stock		0		*
All directors and officers as a group (8 persons named above)	Common Stock		1,153,377		21.77	%
Katsumi Oneda ⁽⁶⁾	Common Stock		265,033		5.00	%
Shlomo Ben-Haim ⁽⁷⁾	Common Stock		361,253		6.82	%
Renaissance Technologies LLC ⁽⁸⁾	Common Stock		247,880		4.68	%

1)	Title of each class of securities to which transaction applies:
2)	Aggregate number of securities to which transaction applies:
3)	Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11:
4)	Proposed maximum aggregate value of transaction
5)	Total fee paid:

(1)	Amount Previously Paid:
(2)	Form, Schedule or Registration Statement No.:
(3)	Filing Party:
(4)	Date Filed:

SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE	19
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS	20
Overview	20
Contribution Transaction	20
Our Prior Business Operations	21
Going Concern	22
Results of Operations	22
Liquidity and Capital Resources	24
Off-Balance Sheet Arrangements	26
Impact of Inflation	26
Critical Accounting Policies	26
Recent Accounting Pronouncements	29
PROPOSAL NO. 1 – ~~FIRST CHARTER~~REMEDIATION PROPOSAL	20
	31
~~General~~Overview	20
	31
Reasons for ~~the Amendments to our Current Charter~~Stockholder Approval	20
	34
~~Possible Effects~~Interests of ~~the Amendments to our Current Charter~~Certain Persons	22
	34
No Dissenters’ Rights	22
	34
Vote Required	23
	34
PROPOSAL NO. 2 – ~~CONTRIBUTION SECURITIES ISSUANCE~~REVERSE STOCK SPLIT PROPOSAL	24

~~Explanatory Note~~	24

~~Summary of Terms of the Contribution Transaction~~	24

~~Contact Information and Business Conducted~~	26

~~Background of the Contribution Transaction~~	26

~~Reasons for the Contribution Transaction~~	27

~~Activities of the Company Following the Contribution Transaction~~	28

~~U.S. Federal Income Tax Consequences of the Contribution Transaction~~	28

~~Accounting Treatment of the Contribution Transaction~~	31

~~Requirements for Stockholder Approval~~	36

~~Interests of Certain Persons in the Contribution Securities Issuance Proposal~~	37

~~No Dissenters’ Rights~~	37

~~Vote Required~~	37

~~PROPOSAL NO. 3 – SECOND CHARTER PROPOSAL~~	38
	35
General	38
	35
Purposes of the Proposed Reverse Stock Split	39
	35
Factors Influencing the Board of Directors’ Discretion in Implementing the Reverse Stock Split	39
	36
Potential Effects of the Proposed Reverse Stock Split	40
	36
Effects on Ownership by Individual Stockholders	40
	37
Vote Required	4037
PROPOSAL NO. 4 – PLAN PROPOSAL	38
Overview	38
Significant Features of the Plan	38
New Plan Benefits	42
No Dissenters’ Rights	43
Vote Required	43
PROPOSAL NO. 4 – DIRECTOR PROPOSAL	41
	44
Director Nominees	41
	44
Vote Required	41
	44
PROPOSAL NO. 5 – AUDITOR PROPOSAL	42
	45
General	42
	45
Principal Accountant Fees and Services	42
	45
Vote Required	43
	46
PROPOSAL NO. 6 – ADJOURNMENT PROPOSAL	44
	47
STOCKHOLDER PROPOSALS AND NOMINATIONS	4548

TRANSACTION OF OTHER BUSINESS	45
	48
HOUSEHOLDING OF PROXY STATEMENT	45
	48
WHERE YOU CAN FIND MORE INFORMATION	4548

Name and Address of Beneficial Owner	Title of Class	Amount and Nature of Beneficial Ownership⁽¹⁾	Percent of Class⁽²⁾
Michael R. Stewart, CEO, CFO and Director	Common Stock	0	*
Richard J. Leider, Director	Common Stock	0	*
Dennis M. McGrath, Director⁽³⁾	Common Stock	70,065	1.25%
Kristen E. Pigman⁽⁴⁾	Common Stock	879,234	15.79%
Dolev Rafaeli, Director⁽⁵⁾	Common Stock	221,024	3.94%
All directors and officers as a group (5 persons named above)	Common Stock	1,190,426	20.73%
Shlomo Ben-Haim⁽⁶⁾	Common Stock	361,253	6.49%
Lewis C. Pell⁽⁷⁾	Common Stock	354,064	6.36%
Yoav Ben-Dror	Common Stock	299,184	5.37%

NAME	AGE	POSITION
~~Suneet Singal~~Michael R. Stewart	3861	Chairman, Chief Executive Officer
~~Stephen M. Johnson~~	46	and Chief Financial Officer
Richard J. Leider	57	Director
~~Dr. Bob Froehlich~~Dennis M. McGrath	6461	~~Chairman and~~ Director
Kristen E. Pigman	63	Director
Dr. Dolev Rafaeli	53	Director
~~Dennis M. McGrath~~	60	~~Director~~

/s/ The Audit Committee
~~Michael R. Stewart (Chair)~~Richard J. Leider
~~Dr. Bob Froehlich~~
~~Darrel C. Menthe~~Kristen E. Pigman

Name and Principal Position	Year	Salary ($)		Non-Equity Incentive Plan Compensation ($) (1)		Stock Awards ($) (2)		All Other Compensation ($) (3)		Total ($)
Dolev Rafaeli, Chief Executive Officer	2016		495,000		1,200,000		71,719		46,347		1,813,066
	2015		495,000		1,273,269		0		20,213		1,788,482
Dennis M. McGrath, President and	2016		395,000		316,000		52,594		45,156		808,750
Chief Financial Officer	2015		395,000		316,000		0		21,933		723,933

	Option Awards										Stock Awards
Name	Number of Securities Underlying Unexercised Options (#) Exercisable (2)		Number of Securities Underlying Unexercised Options (#) Un- exercisable (2)		Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#)		Option Exercise Price ($)		Option Expiration Date		Number of Shares or Units of Stock That Have Not Vested (#)		Market Value of Shares or Units of Stock That Have Not Vested ($)(1)		Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#)		Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)(1)
Dolev		16,800		11,200		0		100.00		3/18/2022		0		0		N/A		N/A
Rafaeli		3,800		5,700		0		100.00		2/28/2023		0		0		N/A		N/A
		0		N/A		0		N/A		N/A		0		0		33,750		75,938
Dennis		1,750		0		0		31.20		6/15/19		0		0		N/A		N/A
McGrath		2,120		0		0		100.00		12/13/21		0		0		N/A		N/A
		10,020		0		0		78.00		12/13/21		0		0		N/A		N/A
		10,800		7,200		0		100.00		3/18/22		0		0		N/A		N/A
		2,800		4,200		0		100.00		2/28/23		0		0		N/A		N/A
		0		N/A		0		N/A		N/A		0		0		24,750		55,688

	Option Awards⁽¹⁾					Stock Awards⁽²⁾
Name	Number of Securities Underlying Unexercised Options (#) Exercisable	Number of Securities Underlying Unexercised Options (#) Un- exercisable	Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#)	Option Exercise Price ($)	Option Expiration Date	Number of shares or units of stock that have not vested (#)	Market value of shares of units of stock that have not vested ($)	Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested (#)	Equity incentive plan awards: Market or payout value of unearned shares, units or other rights that have not vested ($)
Suneet Singal	0	0	0	N/A	N/A	666,667	576,667	0	N/A
Stephen Johnson	0	0	0	N/A	N/A	0	N/A	0	N/A
Dolev Rafaeli	28,000	0	0	100.00	3/18/2022	0	N/A	0	N/A
Dolev Rafaeli	9,500	0	0	100.00	2/28/2023	0	N/A	0	N/A
Dennis M. McGrath	1,750	0	0	31.20	6/15/19	0	N/A	0	N/A
	2,120	0	0	100.00	12/13/21	0	N/A	0	N/A
	10,020	0	0	78.00	12/13/21	0	N/A	0	N/A
	18,000	0	0	100.00	3/18/22	0	N/A	0	N/A
	7,0000	0	0	100.00	2/28/23	0	N/A	0	N/A

Name	Fees Earned or Paid in Cash ($)		All Other Compensation ($) (1)		Total ($)
Lewis Pell		40,000		0		40,000
Yoav Ben-Dror		45,000		360,000		405,000
Stephen P. Connelly		40,000		0		40,000
Dan Amiram		50,000		0		50,000

Name	Fees earned or paid in cash ($)	All other compensation ($)	Total ($)
Robert Froehlich⁽¹⁾	28,125	0	28,125
Richard J. Leider⁽¹⁾	28,125	0	28,125
Darrell C. Menthe⁽¹⁾	25,000	0	25,000
Michael R. Stewart⁽¹⁾	31,250	0	31,250
Lewis Pell⁽²⁾	17,100	0	17,100
Yoav Ben-Dror⁽²⁾⁽³⁾	15,200	960,134	975,334
Stephen P. Connelly⁽²⁾	17,100	0	17,100
Dennis McGrath⁽⁴⁾	25,000	1,003,983	1,028,983
Dolev Rafaeli⁽⁴⁾	25,000	3,347,065	3,372,065

	Six Months Ended June 30,
	2018			2017
Rental income	$	11		$	—
Depreciation expense		(1	)		—
Operating expenses:
General and administrative		2,144			1,848
Operating loss	$	(2,134	)	$	(1,364	)
Revaluation of option to purchase redeemable convertible preferred stock		2,295			—
Revaluation of asset contribution related financial instruments		—			2,622
Interest and other financing expense, net		(72	)		(46	)
Income tax provision		(209	)		—
Income (loss) from continuing operations		(120	)		728
Income (loss) from discontinued operations		219			(1,438	)
Net income (loss) including portion attributable to non-controlling interest		99			(710	)
Loss attributable to non-controlling interest		2			—
Net Income (loss)		101			(710	)
Dividend on redeemable convertible preferred stock		(141	)		—
Accretion of redeemable convertible preferred stock to redemption value		(1,968	)		—
Net loss attributable to common stockholders	$	(2,008	)	$	(710	)

	Year Ended December 31,
	2017 (As Restated)			2016
Revenues	$	—		$	—
Cost of revenues		—			—
Gross profit		—			—
Operating expenses:
General and administrative expenses		10,817			—
Impairment of investment in other company		1,439
Loss from continuing operations before interest and other financing expense, net		(12,256	)		—
Revaluation of asset contribution related financial instruments, net		(1,392	)		—
Revaluation of Option to purchase redeemable convertible B preferred stock		(3,018	)		—
Interest and other financing expense, net		(267	)		—
Loss from continuing operations		(16,933	)		—
Discontinued operations:
Loss from discontinued operations, net of taxes		(2,459	)		(13,264	)
Net loss	$	(19,392	)	$	(13,264	)

Proposed Reverse Stock Split	Percentage Reduction			Shares to Be Outstanding
1-for-2		50	%		2,648,750
1-for-3		67	%		1,765,834
1-for-4		75	%		1,324,375
1-for-5		80	%		1,059,500
1-for-6		83	%		882,917
1-for-7		86	%		756,786

FC Global Realty Incorporated 2018 Equity Incentive Plan
Name and Position	Dollar Value ($)⁽¹⁾	Number of Shares
Michael R. Stewart, Chief Executive Officer	N/A	400,000

	2016		2015
Audit Fees ⁽¹⁾	$	200,000	$	394,000
Audit-Related Fees ⁽²⁾		-		18,000
Tax Fees ⁽³⁾		433,000		321,000
All Other Fees		-		-
Total	$	633,000	$	733,000

		Page No.
Condensed Consolidated Financial Statements for the Three and Six Months Ended June 30, 2018 and 2017		A-2
Condensed Consolidated Balance Sheets as of June 30, 2018 (unaudited) and December 31, 2017		A-3
Condensed Consolidated Statements of Comprehensive Loss for the Three Months Ended June 30, 2018 and 2017 (unaudited)		A-4
Condensed Consolidated Statements of Comprehensive Loss for the Six Months Ended June 30, 2018 and 2017 (unaudited)		A-5
Condensed Consolidated Statement of Changes in Redeemable Convertible Preferred Stock and Stockholders’ Deficit for the Six Months Ended June 30, 2018 (unaudited)		A-6
Condensed Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2018 and 2017 (unaudited)		A-7
Notes to Condensed Consolidated Financial Statements (unaudited)		A-8

Consolidated Financial Statements for the Years Ended December 31, 2017 and 2016		A-29
Report of Independent Registered Public Accounting Firm		A-30
Consolidated Balance Sheets, December 31, 2017 (Restated) and 2016		A-31
Consolidated Statements of Comprehensive Loss, Years ended December 31, 2017 (Restated) and 2016		A-32
Consolidated Statements of Changes in Redeemable Convertible Preferred Stock and Stockholders’ Deficit, Years ended December 31, 2017 (Restated) and 2016		A-33
Consolidated Statements of Cash Flows, Years ended December 31, 2017 (Restated) and 2016		A-34
Notes to Restated Consolidated Financial Statements		A-35

	June 30 2018			December 31, 2017
	(unaudited)
ASSETS
Current assets:
Cash and cash equivalents	$	892		$	948
Prepaid expenses and other current assets		507			646
Total current assets		1,399			1,594
Non-current assets:
Investment properties		2,380			2,055
Investment in other company, net		1,806			1,806
Property and equipment, net		4			5
Other assets, net		302			334
Total non-current assets		4,492			4,200
Total assets	$	5,891		$	5,794

LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ DEFICIT
Current liabilities:
Notes payable	$	516		$	778
Accounts payable		705			612
Accrued compensation and related expenses		389			467
Other accrued liabilities		2,745			2,450
Total current liabilities		4,355			4,307
Non-current liabilities:
Option to purchase Redeemable Convertible Preferred Stock (Note 5)		1,418			4,390
Note payable, net of current portion		452			454
Total non-current liabilities		1,870			4,844
Total liabilities		6,225			9,151
Commitments and contingencies (Note 4)
Redeemable Convertible Preferred Stock Series B, $.01 par value; 15,000,000 shares authorized at June 30, 2018 (unaudited) and December 31, 2017; 1,855,337 and 1,500,000 issued and outstanding at June 30, 2018 (unaudited) and December 31, 2017, respectively, net of amount allocated to option to purchase additional shares; Aggregate liquidation preference $1,948 and $1,503 at June 30, 2018 (unaudited) and December 31, 2017, respectively (Note 5)		2,545			87
Stockholders’ deficit (Note 5):
Common Stock, $.01 par value, 500,000,000 shares authorized at June 30, 2018 (unaudited) and December 31, 2017; 14,833,920 shares issued and outstanding at June 30, 2018 (unaudited) and 11,868,619 shares issued and outstanding at December 31, 2017		149			119
Preferred A Stock $.01 par value, 3,000,000 shares authorized at June 30, 2018 (unaudited) and December 31, 2017; 123,668 issued and outstanding at June 30, 2018 (unaudited) and December 31, 2017;		1			1
Additional paid-in capital		134,974			132,446
Accumulated deficit		(137,030	)		(135,022	)
Accumulated other comprehensive loss		(1,145	)		(1,162	)
Total stockholders’ deficit attributable to FC Global Realty Incorporated		(3,051	)		(3,618	)
Noncontrolling interest		172			174
Total stockholders’ deficit		(2,879	)		(3,444	)
Total liabilities, redeemable convertible preferred stock and stockholders’ deficit	$	5,891		$	5,794

	For the Three Months Ended June 30,
	2018			2017

Rental income	$	11		$	—
Rental expense		1			—
Gross income		10			—

General and administrative		934			1,848
Operating loss		(924	)		(1,848	)
Revaluation of option to purchase redeemable convertible preferred stock (Note 5)		2,568			—
Revaluation of asset contribution related financial instruments		—			2,622
Interest and other financing expense, net		(38	)		(46	)
Income from continuing operations, before taxes on income		1,606			728
Taxes on income (income tax provision)		3			—
Income from continuing operations		1,609			728

Discontinued operations:
Gain from discontinued operations (Note 2)		140			411

Net income including portion attributable to non-controlling interest		1,749			1,139
Loss attributable to non-controlling interest		1			—
Net income		1,750			1,139
Dividend on redeemable convertible preferred stock		(62	)		—
Net income attributable to common stockholders and participating securities	$	1,688		$	1,139

Basic net income per share (Note 3):
Continuing operations	$	0.08		$	0.12
Discontinued operations		0.01			0.07
	$	0.09		$	0.19

Diluted net income (loss) per share (Note 3):
Continuing operations	$	0.08		$	(0.04	)
Discontinued operations		0.01			0.07
	$	0.09		$	0.03

Shares used in computing basic net loss per share		12,846,190			4,786,218
Shares used in computing diluted net loss per share		19,716,419			36,185,555

Other comprehensive income:
Foreign currency translation adjustments		(4	)		176
Comprehensive income	$	1,746		$	1,315

	For the Six Months Ended June 30,
	2018			2017
Rental income	$	11		$	—
Rental expense		1			—
Gross income		10			—

General and administrative		2,144			1,848
Operating loss		(2,134	)		(1,848	)
Revaluation of option to purchase redeemable convertible preferred stock (Note 5)		2,295			—
Revaluation of asset contribution related financial instruments		—			2,622
Interest and other financing expense, net		(72	)		(46	)
Income from continuing operations, before taxes on income		89			728
Taxes on income (Note 6)		(209	)		—
Income (loss) from continuing operations		(120	)		728
Discontinued operations:
Income (loss) from discontinued operations (Note 2)		219			(1,438	)
Net income (loss) including portion attributable to non-controlling interest		99			(710	)
Loss attributable to non-controlling interest		2			—
Net income (loss)		101			(710	)
Dividend on redeemable convertible preferred stock		(141	)		—
Accretion of redeemable convertible preferred stock to redemption value		(1,968	)		—
Net loss attributable to common stockholders and participating securities	$	(2,008	)	$	(710	)

Basic net income (loss) per share (Note 3):

Continuing operations	$	(0.15	)	$	0.14
Discontinued operations		0.01			(0.07	)
	$	(0.14	)	$	(0.07	)

Diluted net income (loss) per share (Note 3):
Continuing operations	$	(0.15	)	$	(0.29	)
Discontinued operations		0.01			(0.06	)
	$	(0.14	)	$	(0.35	)

Shares used in computing basic net loss per share		12,360,105			4,574,830
Shares used in computing diluted net loss per share		12,360,105			20,361,237

Other comprehensive income (loss):
Reclassification of cumulative translation adjustment to statement of operations	$	—		$	3,021
Foreign currency translation adjustments		17			278
Total other comprehensive income		17			3,299
Comprehensive income (loss)	$	118		$	2,589

							Stockholders’ deficit
	Redeemable Convertible Preferred Stock Series B						Common Stock				Series A Preferred Stock				Additional Paid-In Capital		Accumulated Deficit			Accumulated Other Comprehensive Loss			Noncontrolling Interest
	Shares			Amount			Shares		Amount		Shares		Amount													Total
BALANCE, JANUARY 1, 2018		1,500,000		$	87			11,868,619	$	119		123,668	$	1	$	132,446	$	(135,022	)	$	(1,162	)	$	174	$	(3,444	)
Stock based compensation		—			—			—				—		—		5		—			—			—		5
Issuance of Series B redeemable convertible preferred stock and embedded option		2,225,000			2,225			—		—		—		—		—		—			—			—		—
Partial exercise of series B redeemable convertible preferred stock written call option (Note 5)		—			677			—		—		—		—		—		—			—			—		—
Dividend on Series B redeemable convertible preferred stock (Note 5)		—			141			—		—		—		—		—		(141	)		—			—		(141	)
Accretion of Series B redeemable convertible preferred stock to redemption value (Note 5)		—			1,968			—		—		—		—		—		(1,968	)		—			—		(1,968	)
Conversion of series B redeemable convertible preferred stock into common stock		(1,869,663	)		(2,553	)		2,965,301		30		—		—		2,523		—			—			—		2,553
Foreign currency translation adjustment		—			—			—		—		—		—		—		—			17			—		17
Net Income (Loss)		—			—			—		—		—		—		—		101			—			(2)		99
BALANCE, JUNE 30		1,855,337		$	2,545			14,833,920	$	149		123,668	$	1	$	134,974	$	(137,030	)	$	(1,145	)	$	172	$	(2,879	)

	Three Months Ended June 30,						Six Months Ended June 30,
	2018			2017			2018			2017

Numerator:
Net income (loss)	$	1,750		$	1,139		$	101			(710	)
Net loss (gain) from discontinued operations attributable to common stockholders		(140	)		(411	)		(219	)		1,438
Accretion of Series B Preferred Stock to redemption value (*)		—			—			(1,968	)		—
Preferred dividend on Series B Preferred Stock (**)		(62	)		—			(141	)		—
Participation of stockholders of Series A Preferred Stock in the net loss from continuing operations		—			—			384			—
Participation of stockholders of Series A and B Preferred Stock in the net income from continuing operations		(512	)		(131	)		—			(66	)
Net basic income (loss) from continuing operations attributable to common stockholders	$	(1,036	)	$	597		$	(1,843	)	$	662

Denominator:
Shares of common stock used in computing basic net income (loss) per share		12,846,190			4,786,218			12,360,105			4,574,830

Net income (loss) per share of common stock from continuing operations, basic	$	0.08		$	0.12		$	(0.15	)	$	0.14

	December 31, 2017		January 24, 2018		June 30, 2018
Dividend yield (%)		0		0		0
Expected volatility (%)		36.9		37.9		42.4
Risk free interest rate (%)		1.74		1.75		2.11
Strike price		1.00		1.00		1.00
Series B Preferred Stock price		1.13		1.10		0.83
Probability of if-converted scenario (%)		90		90		90
Probability assumed liquidation scenario (%)		10		10		10
Expected term of Option (years)		1.0		0.9		0.5
Option’s fair value per share	$	0.33	$	0.30	$	0.13

	Fair value of Option to purchase Redeemable Convertible B Preferred Stock
	(Unaudited)

Opening balance, January 1, 2018	$	4,390
Partial exercise of series B redeemable convertible preferred stock written call option		(677	)
Revaluation of option to purchase redeemable convertible B preferred stock		(2,295	)

Closing balance, June 30, 2018	$	1,418

	June 30, 2018
	Unaudited

Opening balance, January 1, 2018	$	87
Proceeds from issuance of Series B Shares		2,225
Accretion of Series B Preferred Stock to redemption value		1,968
Partial exercise of Series B Preferred Stock written call option on the second date		677
Conversion of Series B Preferred Stock into Common Stock		(2,553)
Dividend on Series B Preferred Stock		141

Closing balance, June 30, 2018	$	2,545

	Number of Stock Options			Weighted Average Exercise Price		Weighted Average Remaining Term (in years)		Aggregate Intrinsic Value (*)
Outstanding at January 1, 2018		79,890		$	94.51		4.1	$	—
Granted/vested		147,088		$	0.98		9.8	$	—
Exercised		—			—		—		—
Expired/cancelled		(147,088	)		—		—		—
Outstanding at June 30, 2018		79,890		$	33.90		7.8	$	—
Exercisable at June 30, 2018		79,890		$	33.90		7.8	$	—

	For the Year Ended December 31,
	2017			2016
	(As Restated)

Revenues:	$	—		$	—
Cost of revenues		—			—
Gross profit		—			—

Operating expenses:
General and administrative		10,817			—
Impairment of investment in other company (Note 5)		1,439			—
		12,256			—

Operating loss		(12,256	)		—

Revaluation of asset contribution related financial instruments, net (Note 5)		(1,392	)		—
Revaluation of Option to purchase redeemable convertible B preferred stock (Note 14)		(3,018	)		—
Interest and other financing expense, net		(267	)		—
Loss from continuing operations		(16,933	)		—

Discontinued operations:
Loss from discontinued operations, net of taxes		(2,459	)		(13,264	)

Net loss including portion attributable to noncontrolling interest		(19,392	)		(13,264	)

Loss attributable to noncontrolling interest		8			—

Net loss attributable to FC Global Realty Incorporated	$	(19,384	)	$	(13,264	)

Basic and diluted net loss per share:
Continuing operations	$	(3.07	)	$	—
Discontinued operations		(0.45	)		(3.18	)
	$	(3.52	)	$	(3.18	)

Shares used in computing basic and diluted net loss per share		5,073,751			4,171,549

Other comprehensive loss:
Reclassification of cumulative translation adjustment	$	3,228		$	—
Foreign currency translation adjustments		189			(2,810	)
Total other comprehensive income (loss)		3,417			(2,810	)
Comprehensive loss	$	(15,967	)	$	(16,074	)

	Redeemable Convertible Preferred Stock Series B				Stockholders’ deficit
	Redeemable Convertible Preferred Stock Series B				Common Stock					Series A Preferred Stock				Additional Paid-In		Accumulated			Accumulated Other Comprehensive			Noncontrolling
	Shares		Amount		Shares			Amount		Shares		Amount		Capital		Deficit			Loss			Interest			Total

BALANCE, DECEMBER 31, 2015		—		—		4,398,344		$	44		—		—	$	116,793	$	(102,371	)	$	(1,769	)		—		$	12,697
Stock-based compensation related to stock options and restricted stock		—		—		—			—		—		—		1,969		—			—			—			1,969
Restricted stock canceled		—		—		(37,250	)		—		—		—		—		—			—			—			—
Foreign currency translation adjustment		—		—		—			—		—		—		—		—			(2,810	)		—			(2,810	)

Loss		—		—		—			—		—		—		—		(13,264	)		—			—			(13,264	)
BALANCE, DECEMBER 31, 2016		—		—		4,361,094		$	44		—		—	$	118,762	$	(115,635	)	$	(4,579	)		—		$	(1,408	)

Stock-based compensation related to stock options and restricted stock		—		—		—			—		—		—		1,466		—			—			—			1,466

Common shares issued for asset contribution (Note 5)		—		—		879,234			9		—		—		1,266		—			—			—			1,275

Preferred A stock issued for asset contribution (Note 5 )		—		—		—			—		123,668		1		4,482		—			—			—			4,483
Common shares issued for Note Payout (Note 14)						5,628,291			56		—				5,570								—			5,626
Common shares issued for severance (Note 14)		—		—		1,000,000			10		—		—		900		—			—			—			910
Issuance of series B redeemable convertible preferred stock and embedded option, net of stock issuance costs of $42		1,500,000		—		—			—		—		—		—		—			—			—			—
Amortization of discount related to written call option (Note14)		—	$	84		—			—		—		—		—		—			—			—			—
Accretion of dividend (Note 14)		—	$	3		—			—		—		—		—		(3			—			—			(3	)
Noncontrolling interest from asset acquisition (As Restated)		—		—		—			—		—		—		—		—			—			182			182
Reclassification of cumulative translation adjustment		—		—		—			—		—		—		—		—			3,228			—			3,228
Foreign currency translation adjustment																	—			189			—			189
Net Loss (As Restated)		—		—		—			—		—		—		—		(19,384	)		—			(8	)		(19,392	)
BALANCE, DECEMBER 31, 2017 (As Restated)		1,500,000	$	87		11,868,619		$	119		123,668	$	1	$	132,446	$	(135,022	)	$	(1,162	)	$	174		$	(3,444	)

Consolidated Balance Sheet as of December 31, 2017
	(As Previously Reported)			Adjustments			(Restated)
Investment properties	$	2,600		$	(545	)	$	2,055
Total non-current assets		4,745			(545	)		4,200
Total assets		6,339			(545	)		5,794
Accumulated deficit		(134,445	)		(577	)		(135,022	)
Total stockholders’ deficit attributable to FC Global Realty Incorporated		(3,041	)		(577	)		(3,618	)
Noncontrolling interest		142			32			174
Total stockholders’ deficit		(2,899	)		(545	)		(3,444	)
Total liabilities, redeemable convertible preferred stock and stockholders’ deficit		6,339			(545	)		5,794