Absence of Conflicts. Neither the execution and delivery of this Agreement, the Note or the other Loan Documents nor consummation of the transactions herein or therein contemplated nor performance of or compliance with the terms and conditions hereof or thereof will # violate any law, # conflict with or result in a breach of or a default under any agreement or instrument to which ​ is a party or by which either of them or any of their properties (now owned or hereafter acquired) may be subject or bound or # result in the creation or imposition of any lien, charge, security interest or encumbrance upon any property (now owned or hereafter acquired) of ​.

No Conflicts: Advice. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which the Sellers are subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which the Sellers are a party. The Sellers have consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the purchase of the Interests.

Ranking; No Conflicts. The Note shall have priority in payment and performance over all future unsecured indebtedness of the Company. The execution, delivery and performance of this Agreement and the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the Conversion Shares) will not # conflict with or result in a violation of any provision of the Certificate of Incorporation or By-laws, or # violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, note, evidence of indebtedness, indenture, patent, patent license or instrument to which the Company or any of its Subsidiaries is a party, or # result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the Company or its securities is subject) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect), or # trigger any anti-dilution and/or ratchet provision contained in any other contract in which the Company is a party thereto or any security issued by the Company. Neither the Company nor any of its Subsidiaries is in violation of its Certificate of Incorporation, By-laws or other organizational documents and neither the Company nor any of its Subsidiaries is in default (and no event has occurred which with notice or lapse of time or both could put the Company or any of its Subsidiaries in default) under, and neither the Company nor any of its Subsidiaries has taken any action or failed to take any action that would give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party or by which any property or assets of the Company or any of its Subsidiaries is bound or affected, except for possible defaults as would not, individually or in the aggregate, have a Material Adverse Effect. The businesses of the Company and its Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Buyer owns any of the Securities, in violation of any law, ordinance or regulation of any governmental entity. Except as specifically contemplated by this Agreement and as required under the 1933 Act and any applicable state securities laws, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court, governmental agency, regulatory agency, self-regulatory organization or stock market or any third party in order for it to execute, deliver or perform any of its obligations under this Agreement and the Note in accordance with the terms hereof or thereof or to issue and sell the Note in accordance with the terms hereof and, upon conversion of the Note and/or exercise of the Warrant, issue Conversion Shares. All consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the date hereof. The Company is not in violation of the listing requirements of the Principal Market (as defined herein) and does not

Conflicts Between Plans. In the event that there is a conflict between a provision of this Plan and the ESP, as then in effect, the terms of the ESP shall control.

The execution and delivery by the Company of this Agreement, the issuance and sale of the Exchange Securities and the consummation of the other transactions contemplated hereby or thereby do not and will not # result in the violation of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any federal, state, local or foreign government, court, or administrative or regulatory authority (“Governmental Authority”) to or by which the Company is bound including without

Conflicts of Interest, Improper Payments and Business Courtesies......................................... 8

INTEREST; INTEREST RATE. Interest on the Principal outstanding from time to time shall commence accruing on the Issuance Date (as set forth above) and shall be payable in cash on the last business day of each calendar quarter until the Maturity Date, unless paid earlier in connection with the repayment of Note pursuant to [Section 1] hereof or conversion of the Note pursuant to [Section 3] hereof, with such first payment due on [​]. The Holder has the option to defer quarterly interest payments (simple interest). Deferred interest payments will be paid within thirty (30) days of written request by the Holder. Any deferred and unpaid interest will be paid at the maturity date of the Note. No additional interest will be accrued on the deferred interest payments (simple interest).

Interest. The obligation set forth below shall not bear interest except as set forth in the following sentence. Upon the occurrence and during the continuance of any Event of Default (as

Interest. No interest shall accrue on the unpaid principal balance of this Note.

Interest. The outstanding principal amount of this Note shall accrue interest at the rate of 7% per annum until the Maturity Date. After the Maturity Date and upon the occurrence and during the continuation of any Event of Default, any principal balance of the Note remaining unpaid shall bear interest at the rate of 9% per annum. Accrued interest shall be calculated on the basis of a 360-day year for the actual number of days elapsed and shall accrue daily commencing on the Original Issue Date and be compounded monthly on the first (1st) day of each calendar month. At the option of the Investor, interest payments shall be paid either in cash or in shares of Empire Common Stock (as defined below) (“Interest Shares”) on each of the following dates (or if any such date is not a Business Day, the next following Business Day) (each, an “Interest Payment Date”), except upon the occurrence (and during the continuance) of an Event of Default, in which case interest will accrue and be paid in cash on demand: