RESTRUCTURING, LOCKUP AND PLAN SUPPORT AGREEMENT

This Restructuring, Lockup and Plan Support Agreement (as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof, this “Restructuring Agreement”), dated as of January 26, 2012, is entered into by and among Ener1, Inc., a Florida corporation (the “Debtor”), the parties signatory hereto who are the holders of all of the Debtor’s outstanding 8.25% senior unsecured notes (collectively, the “Note Holders”), Itochu Corporation, a Japanese corporation (“Itochu”), and Bzinfin S.A., a British Virgin Islands company (“Bzinfin”). Each of the Note Holders, Itochu and Bzinfin is referred to herein individually as a “Consenting Lender” and together as the “Consenting Lenders.” The Debtor, the Consenting Lenders and any Joining Party (as defined in Section 2(b) below) are referred to herein individually as a “Party” and together as the “Parties.”

PRELIMINARY STATEMENTS

A. As of the date hereof, the Debtor is obligated on the following indebtedness due and outstanding to the Consenting Lenders: (i) $62,067,230.33 to the Note Holders, under the Tranche A and Tranche B 8.25% senior unsecured notes due July 1, 2013, including the aggregate principal amount thereof, plus accrued and unpaid interest, fees and costs, pursuant to the terms of such notes (the “Note Holder Debt”); (ii) $10,253,333.33 to Itochu, under the 6.00% senior convertible notes due August 26, 2015, including the aggregate principal amount thereof, plus accrued and unpaid interest, fees and costs, pursuant to the terms of such notes (the “Itochu Debt”); (iii) $12,081,177.28 to Bzinfin, under that line of credit agreement dated June 29, 2011, as amended, including the aggregate principal amount of advances thereunder, plus accrued and unpaid interest, fees and costs, pursuant to the terms of such line of credit agreement (the “Bzinfin Credit Agreement”), which debt, pursuant to that certain Subordination Agreement, dated September 12, 2011, by and among the Note Holders and Bzinfin, is subordinated to the Note Holder Debt; and (iv) $6,500,000, under that certain Loan Agreement, dated as of November 16, 2011, as amended on December 23, 2011, among the Debtor, Bzinfin and certain Note Holders, plus accrued and unpaid interest, fees and costs pursuant to the terms thereof (the “Bridge Facility” and, together with the Bzinfin Credit Agreement, the Note Holder Debt and the Itochu Debt, collectively referred to herein as the “Debt” and all related claims, rights, powers and causes of action arising out of or in connection with or otherwise relating to the Debt is collectively referred to herein as the “Claims”).

B. The Debtor and the Consenting Lenders have negotiated a transaction that will effectuate a financial restructuring of the debt and equity of the Debtor on the terms and conditions set forth in the Plan (as defined below) (the “Financial Restructuring”) that is to be implemented in a voluntary prepackaged case commenced by the Debtor under chapter 11, title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”), before the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”), on a consensual basis pursuant to a prepackaged plan of reorganization to be confirmed under chapter 11 of the Bankruptcy Code, the terms and conditions of which will be substantially consistent with those set forth in (i) the Plan of Reorganization attached hereto as Exhibit A (including any annexes and schedules attached thereto, the “Plan”) and (ii) the forms of transaction documents attached hereto as Exhibit B (the “Transaction Documents”).

C. In order to implement and expedite the Financial Restructuring, the Debtor has agreed, pursuant to the terms and subject to the conditions of this Restructuring Agreement, (i) to prepare and file, in a case filed under chapter 11 of the Bankruptcy Code, (a) the Plan and (b) a disclosure statement, in the form attached hereto as Exhibit C (the “Disclosure Statement”) and (ii) to use commercially reasonable efforts to have the Disclosure Statement approved and the Plan confirmed by the Bankruptcy Court and consummated thereafter.

D. The Parties have agreed to use their commercially reasonable efforts to obtain Bankruptcy Court approval of, and timely complete the Financial Restructuring in accordance with the terms and subject to the conditions contained herein.

STATEMENT OF AGREEMENT

In consideration of the premises and the covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Incorporation of Plan and Definitions. The Plan is expressly incorporated herein by reference and is made part of this Restructuring Agreement. All references herein to “this Restructuring Agreement” or “herein” shall include the Plan. The general terms and conditions of the Financial Restructuring, as supplemented by the terms and conditions of this Restructuring Agreement, are set forth in the Plan. In the event the terms and conditions as set forth in the Plan and this Restructuring Agreement are inconsistent, the terms and conditions as set forth in the Plan shall govern. Capitalized terms used and not defined in this Restructuring Agreement shall have the meaning ascribed to them in the Plan. For purposes of this Restructuring Agreement, the term “Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or other entity.

2. Agreements of Consenting Lenders.

(a) Ownership. Each of the Consenting Lenders represents and warrants that, as of the date hereof, (i) such Consenting Lender either (A) is the sole legal and beneficial owner of a principal amount of the Debt as is set forth on Schedule I hereto as of the date hereof, and all related Claims, in each case free and clear of all claims, liens and encumbrances, or (B) is the legal owner of such Debt and Claims, and has the power and authority to bind the legal and beneficial owner(s) of such Debt and Claims to the terms of this Restructuring Agreement, and (ii) such Consenting Lender (a) has full power and authority to vote on and consent to or (b) has received legally binding and enforceable authorization and direction from the party having full power and authority to vote on and consent to such matters concerning such Debt and Claims and to exchange, assign and transfer such Debt and Claims.

(b) Restrictions on Transfers. Each Consenting Lender agrees that until this Restructuring Agreement has terminated in accordance with Section 5 below, it shall not sell, transfer, or assign any of the Debt or Claims and/or any other pre-petition and/or post-petition claims against the Debtor or grant any option thereon or any right or interest (voting or otherwise) therein (any of the foregoing is referred to herein as a “Disposition”) unless the counterparty to such Disposition agrees in writing for the benefit of the Parties to be bound by all of the terms of this Restructuring Agreement by executing the form of Joinder attached hereto as Exhibit D (a “Joinder” and, such party, a “Joining Party”), a copy of which shall be provided to the Parties. Each Party shall be deemed to have acknowledged that its obligations hereunder shall be deemed to constitute obligations in favor of the counterparty to such Disposition. In the event that any Disposition is not fully consummated for any reason, the Consenting Lender to such Disposition shall remain bound by the terms of this Restructuring Agreement. Notwithstanding the foregoing or any other provisions herein, no Disposition will relieve the Consenting Lender undertaking such Disposition of any of its obligations hereunder if the Joining Party fails to perform its obligations hereunder and, in the event of a breach by the Joining Party, such Consenting Lender shall be liable for such breach.

(c) Support. So long as this Restructuring Agreement is in force and effect, each Party agrees to perform and comply with the following obligations, as applicable:

(i) it will take all steps necessary to support the Financial Restructuring, including, with respect to the Debtor, the commencement of the chapter 11 case (the “Chapter 11 Case”) and the administration of the Chapter 11 Case and, with respect to each Party, the confirmation and consummation of the Plan;

(ii) it will not directly or indirectly pursue, propose, support, recommend or encourage the pursuit, proposal or support of (1) any chapter 11 plan for the Debtor other than the Plan or (2) any other restructuring or reorganization for, or the liquidation of, the Debtor (directly or indirectly), other than the Plan;

(iii) no Consenting Lender will commence any proceeding or otherwise prosecute, join in, or support any objection to, or oppose or object to, the Plan;

(iv) it will negotiate in good faith all other documents and transactions described in, or contemplated in connection with, this Restructuring Agreement and the applicable provisions of the Plan; and

(v) each Consenting Lender will, subject to and concurrently with its receipt of the Disclosure Statement, submit a fully executed ballot in favor of the Plan, in substantially the form attached hereto as Exhibit E.

(d) Adequate Information. Each Consenting Lender agrees that it has obtained adequate information regarding the Financial Restructuring and that the Debtor has provided all material, relevant information that the Consenting Lender has requested in advance of executing this Restructuring Agreement.

(e) Agreement to Forbear. Each Consenting Lender agrees that so long as this Restructuring Agreement is in force and effect, it shall not (i) take any action or otherwise pursue any right or remedy under (A) the Debt, with respect to any default, or (ii) initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Debt or Claims other than to enforce this Restructuring Agreement.

(f) DIP Loan Commitment. Bzinfin agrees that it shall provide a post-petition credit facility to the Debtor for general working capital and operational expenses (the “DIP Facility”), pursuant to the terms and conditions set forth in the DIP Loan Agreement (the “DIP Loan Agreement”) and related documents contained in Exhibit F hereto.

(g) Exit Funding Commitment. Bzinfin agrees that it shall, or shall cause one of its affiliates to, commit on the effective date of the Plan to provide equity and debt financing to the Debtor, and the Note Holders agree that they shall commit on the effective date of the Plan to provide equity financing to the Debtor, each in accordance with the terms and conditions of the Equity Commitment Agreement contained in Exhibit G hereto.

3. Agreements of the Debtor. The Debtor agrees that the following are material conditions to the agreements contained herein:

(a) The Debtor agrees that it will take such steps as may be commercially reasonable to coordinate with the Consenting Lenders and their designated representatives and advisors and to prepare, in addition to the Transaction Documents, all other necessary documents to consummate the Financial Restructuring, which documents will each be in form and substance acceptable to the Requisite Consenting Lenders (as defined in Section 5(a) below);

(b) The Debtor agrees to take all commercially reasonable steps that are necessary or desirable to obtain any necessary approval for the Financial Restructuring as expeditiously as possible under applicable law;

(c) The Debtor agrees to take all commercially reasonable steps to obtain any and all requisite regulatory or third party approvals necessary or desirable to consummate the Plan and the Financial Restructuring as expeditiously as possible;

(d) The Debtor agrees to use commercially reasonable efforts to solicit acceptance of the Plan prior to the Order for Relief Date;

(e) If the Debtor receives acceptances of the Plan from each class of claims entitled to vote thereon to accept the Plan pursuant to section 1126(c) of the Bankruptcy Code, the Debtor agrees to file the Chapter 11 Case with the Bankruptcy Court on or prior to 11:59 p.m. (Eastern) on January 26, 2012 (the “Order For Relief Date”);

(f) The Debtor agrees to file the Disclosure Statement and the Plan on the Order For Relief Date;

(g) The Debtor agrees to take all commercially reasonable steps necessary to obtain from the Bankruptcy Court an order confirming the Plan and approving the Disclosure Statement within 45 days after the Order For Relief Date;

(h) The Debtor agrees to take all other commercially reasonable actions necessary to support confirmation of the Plan;

(i) The Debtor agrees to take no actions inconsistent with the Financial Restructuring, the transactions contemplated hereby or by the Plan or the expeditious confirmation and consummation of such transactions, except as otherwise permitted under this Restructuring Agreement; provided, however, if the Debtor determines, based on the advice of its legal counsel, that it would be inconsistent with its fiduciary duties to pursue confirmation and consummation of the Plan and the Financial Restructuring contemplated by this Restructuring Agreement then the Debtor shall provide written notice of such determination, within one (1) business day of making such determination, to each Consenting Lender;

(j) The Debtor agrees to take all commercially reasonable actions to obtain approval of the DIP Facility (or the Alternative DIP Facility (as defined in Section 5(d) below), as applicable) and agrees to file a motion for approval of the DIP Facility (or the Alternative DIP Facility, as applicable), on the Order For Relief Date;

(k) The Debtor shall use its commercially reasonable efforts to seek Bankruptcy Court approval of payment of all Obligations (as defined in the Bridge Facility) upon the issuance of the Interim Financing Order (as defined in the DIP Loan Agreement) and, if the Bankruptcy Court does not approve such payment in full upon entry of the Interim Financing Order, the Debtor shall use its commercially reasonable efforts to seek Bankruptcy Court approval of payment of all such Obligations within 35 days following the commencement of the Chapter 11 Case; and

(l) In the event the Debtor receives a proposal for an Alternative DIP Facility, prior to accepting any such proposal, the Debtor agrees to present such offer to Bzinfin for it to exercise a right of first refusal, and in the event Bzinfin exercises such right, it shall provide a DIP Facility on the same terms and conditions as the Alternative DIP Facility.

4. Alternative Transactions.

(a) (i) From and after execution of this Restructuring Agreement, except as otherwise specifically permitted by the terms hereof, neither the Debtor, or any of its officers, directors, employees, agents, representatives or affiliates (including any investment banker or financial advisor retained by the Debtor or any of the foregoing) shall, directly or indirectly, encourage, solicit or initiate any inquiry or proposal from, or encourage, solicit or initiate any discussions or negotiations with, or respond in any manner to any unsolicited inquiry or proposal from, or have any discussions or negotiations with, any Person (other than the Consenting Lenders or an affiliate, associate, representative or agent of the Consenting Lenders) concerning any potential sale of the Debtor, in whole or in part, or restructuring of the Debtor, in whole or in part, or transaction which is similar to, in conflict with or in substitution of the Financial Restructuring pursuant to the terms hereof (each, an “Alternative Transaction”), or agree to endorse or take any other action to facilitate any Alternative Transaction.

(ii) Notwithstanding the foregoing, nothing contained in this Section 4 shall prohibit the Debtor from furnishing information to, or entering into discussions with, any Person that makes an unsolicited offer for an Alternative Transaction; provided, however, that the Debtor agrees to promptly notify the Consenting Lenders in writing of (A) the interest from such soliciting Person, (B) the nature of the interest expressed by such soliciting Person, and (C) the terms and conditions of the proposal or indication of interest from such soliciting Person for an Alternative Transaction.

(b) If any Person makes an unsolicited bona fide Alternative Transaction inquiry or proposal:

(i) the Debtor may enter into discussions or negotiations with such Person concerning an Alternative Transaction so long as the Debtor is in compliance with Section 4(a) above;

(ii) the Debtor may enter into a confidentiality agreement with such Person, provided that such confidentiality agreement permits the Debtor to keep the Consenting Lenders fully and timely informed of the status and terms of such discussions or negotiations; and

(iii) the Board of Directors of the Debtor (the “Board”) may consider the Alternative Transaction and if the Board determines in good faith, based on the advice of an independent financial advisor or counsel, that approval of such Alternative Transaction is required for the Board to comply with its fiduciary duties or is required to comply with any orders of a Bankruptcy Court, the Board may approve such Alternative Transaction; provided, that upon approval by the Board of an Alternative Transaction, this Restructuring Agreement shall automatically terminate without further action (a “Section 4 Default”).

(c) The Debtor shall not consider, entertain or negotiate, or enter into or consummate any agreement in furtherance of, any Alternative Transaction except as expressly permitted by paragraph (b) above.

5. Termination of Restructuring Agreement.

(a) This Restructuring Agreement shall terminate and all of the obligations of the Parties shall be of no further force or effect in the event that (i) the Plan is confirmed and becomes effective pursuant to a final non-appealable order, (ii) the Debtor and the Consenting Lenders (who must include Liberty Harbor Special Investments, LLC and Goldman Sachs Palmetto State Credit Fund, L.P. (together, “GSAM”) and Bzinfin) holding 51% of the aggregate principal amount of the Debt (the “Requisite Consenting Lenders”) agree to such termination in writing or (iii) this Restructuring Agreement is terminated pursuant to paragraphs (b), (c), (d) or (e) of this Section 5.

(b) The Debtor may terminate this Restructuring Agreement by written notice to the Consenting Lenders upon the occurrence of either of the following events:

(i) a determination by the Board, upon the advice of its legal counsel, that proceeding with the Financial Restructuring and consummation of the Plan would be inconsistent with the Board’s fiduciary obligations under applicable law; or

(ii) a breach by any Consenting Lender of its material obligations hereunder, which breach is not cured or waived within five (5) business days after the giving of written notice by the Debtor of such breach to such Consenting Lender (which notice the Debtor shall simultaneously provide to each non-breaching Consenting Lender).

(c) This Restructuring Agreement may be terminated upon the occurrence of any of the following events (it being understood that the following termination events are intended solely for the benefit of the Consenting Lenders) (each an “Agreement Termination Event”):

(i) the Order For Relief Date shall not have occurred by January 26, 2012;

(ii) the Debtor fails to file the Plan and Disclosure Statement on the Order for Relief Date;

(iii) the Plan is modified or amended in a material manner not acceptable to the Requisite Consenting Lenders;

(iv) the order of the Bankruptcy Court approving the Disclosure Statement and confirming the Plan, in a form and substance reasonably acceptable to the Requisite Consenting Lenders, shall not have been entered within 75 days after the Order for Relief Date, or by such later date as is agreed to in writing by the Debtor and the Requisite Consenting Lenders;

(v) the effective date of the Plan shall not have occurred within 90 days after the Order for Relief Date, or by such later date as is agreed to in writing by the Debtor and the Requisite Consenting Lenders;

(vi) the Debtor shall file or support confirmation, or fail to actively oppose confirmation of, a plan of reorganization embodying terms materially different from those contemplated by the Plan;

(vii) the Bankruptcy Court shall have entered an order pursuant to section 1104 of the Bankruptcy Code appointing a trustee or an examiner with expanded powers to operate and manage the Debtor’s business;

(viii) the Bankruptcy Court shall have entered an order terminating (or lifting as to a party other than the Debtor) the Debtor’s exclusive right to file a chapter 11 plan pursuant to section 1121 of the Bankruptcy Code;

(ix) the Bankruptcy Court shall have entered an order dismissing the Chapter 11 Case or an order pursuant to section 1112 of the Bankruptcy Code converting the Chapter 11 Case to a case under chapter 7 of the Bankruptcy Code;

(x) an injunction, judgment, order, decree, ruling or charge shall have been entered which prevents consummation of the Financial Restructuring;

(xi) the Debtor files a motion, objection, lawsuit, administrative or adversary proceeding, or otherwise assists in any of the foregoing, seeking to change the rights, terms or amounts of recovery of the Consenting Lenders other than as is consistent with the terms of this Restructuring Agreement;

(xii) the occurrence of any Section 4 Default or if the Debtor files any motion or other pleading with the Bankruptcy Court (or takes any action in support of such a motion or pleading) seeking to withdraw or modify this Restructuring Agreement or support an Alternative Transaction, which has not been agreed to in writing by the Requisite Consenting Lenders;

(xiii) a breach by any Consenting Lender (other than the terminating Party) of its material obligations hereunder, which breach is not cured or waived within five (5) business days after the giving of written notice by the Debtor or any other Consenting Lender to the breaching Party (which notice shall simultaneously be provided to each non-breaching Party);

(xiv) if the Company shall not have commenced the solicitation of votes for the Plan within one (1) day following the date hereof; or

(xv) except for obligations in clauses (i) through (xiv) above in this Section 5(c), if the Debtor fails to comply with any of its other material obligations hereunder and such failure shall be continuing and there has been ten (10) business days prior written notice of same delivered to the Parties and, if such notice is delivered by the Consenting Lenders, such Consenting Lenders delivering the notice must constitute Requisite Consenting Lenders.

Upon the occurrence of any Agreement Termination Event under any of clauses (i) through (xv) of this Section 5(c), this Restructuring Agreement shall terminate after the giving of written notice by any Consenting Lender to the other Parties of such Agreement Termination Event.

(d) Bzinfin or GSAM may terminate this Restructuring Agreement by written notice to the other Parties if due to no fault of Bzinfin or GSAM either (i) the Debtor fails to file a motion on the Order for Relief Date seeking entry of an interim and final order approving (A) the DIP Facility on terms substantially consistent with those contained in the DIP Term Sheet and in form and substance reasonably acceptable to Bzinfin and GSAM or (B) an alternative post-petition credit facility (with a party other than Bzinfin or an affiliate thereof) reasonably acceptable to the Requisite Consenting Lenders (the “Alternative DIP Facility”) or (ii) the Bankruptcy Court fails to enter either an interim or final order approving (A) the DIP Facility on terms that are substantially consistent with those contained in the DIP Term Sheet and in form and substance reasonably acceptable to Bzinfin and GSAM by the deadlines contained in the DIP Term Sheet or (B) the Alternative DIP Facility in form and substance reasonably acceptable to the Requisite Consenting Lenders, in each case, within 7 or 50 days after the Order for Relief Date, respectively.

(e) This Restructuring Agreement, and the obligations of all Parties hereunder, may be terminated by mutual agreement between the Debtor and the Requisite Consenting Lenders.

(f) If this Restructuring Agreement is terminated pursuant to this Section 5, all further obligations of the Parties hereunder shall be terminated without further liability, except for the provisions in Sections 12, 14, 16, 17, 19 and 22, each of which shall survive termination of this Restructuring Agreement; provided, however, that each (i) Party shall have all rights and remedies available to it under applicable law, the Debt and any documents or agreements ancillary thereto, each of which shall survive termination of this Restructuring Agreement and (ii) no such termination shall relieve any Party from liability for its breach or non-performance of its obligations hereunder prior to the date of such termination.

6. Cooperation; Further Assurances. The Parties shall cooperate with each other and shall coordinate their activities (to the extent practicable) in respect of all action necessary to consummate the Financial Restructuring and the Plan.

7. Certain Additional Chapter 11 Related Matters. The Debtor shall provide draft copies of all material motions or applications and other documents the Debtor intends to file with the Bankruptcy Court to counsel for Bzinfin and for GSAM, if reasonably practicable, at least three (3) days prior to the date when the Debtor intends to file any such pleading or other document (and, if not reasonably practicable, as soon as reasonably practicable prior to filing) and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court. Subject to Section 2(c) above, nothing in this Restructuring Agreement shall restrict, limit, prohibit or preclude, in any manner not inconsistent with its obligations under this Restructuring Agreement, any of the Consenting Lenders from appearing in the Bankruptcy Court with respect to any motion, application or other documents filed by the Debtor and objecting to, or commenting upon, the relief requested therein.

8. Advisors to the Consenting Lenders.

(a) The Debtor shall pay, when due and payable, any invoice for reasonable fees and expenses presented for payment by the legal advisors to Bzinfin for services in connection with this Restructuring Agreement and the Financial Restructuring.

(b) The Debtor shall pay the reasonable fees and expenses presented for payment by the legal advisors to GSAM in connection with this Restructuring Agreement and the Financial Restructuring, as follows:

(i) with respect to the period through the petition date, all of such expenses and 90% of such fees, with (i) 50% of such payment paid from the proceeds of the initial borrowing under the DIP Facility (or the Alternative DIP Facility, as applicable) and (ii) the other 50% of such payment made on the first to occur of the effective date of the Plan and the termination of this Agreement; and

(ii) with respect to the period following the petition date, up to an aggregate amount of $225,000 on the first to occur of the effective date of the Plan and the termination of this Agreement; provided that such cap shall not apply if the Chapter 11 Case is contested.

9. Representations and Warranties. Each Party, severally (and not jointly), represents and warrants to the other Parties that the following statements are true, correct and complete as of the date hereof:

(a) it has all requisite corporate, partnership, limited liability company or similar authority to enter into this Restructuring Agreement and, subject to any necessary Bankruptcy Court approval, carry out the transactions contemplated hereby and perform its obligations contemplated hereunder; and the execution and delivery of this Restructuring Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, limited liability, partnership or other similar action on its part;

(b) the execution, delivery, and, subject to any necessary Bankruptcy Court approval, performance by such Party of this Restructuring Agreement does not and shall not violate any provision of law, rule or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries or any material contractual obligation to which it or any of its subsidiaries is a party;

(c) the execution, delivery, and performance by such Party of this Restructuring Agreement does not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state or governmental authority or regulatory body other than the Bankruptcy Court; and

(d) this Restructuring Agreement is the legally valid and binding obligation of it, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability or a ruling of the Bankruptcy Court.

10. Additional Claims or Equity Interests. Nothing herein should be construed to restrict a Consenting Lender’s right to acquire additional Debt or Claims or any other pre-petition and/or post-petition claims against the Debtor. To the extent any Consenting Lender (a) acquires additional Debt or Claims or any other pre-petition and/or post-petition claims against the Debtor or (b) acquires additional equity interests in the Debtor, each such Consenting Lender agrees that it shall promptly notify the Debtor, regarding any such acquisition and that such Debt, Claims, other pre-petition and/or post-petition claims against the Debtor or equity interests shall be subject to this Restructuring Agreement.

11. Amendments and Waivers. This Restructuring Agreement may not be modified, amended or supplemented and an Agreement Termination Event may not be waived except in a writing signed by the Debtor and the Requisite Consenting Lenders.

12. GOVERNING LAW; JURISDICTION. THIS RESTRUCTURING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS WHICH WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. BY ITS EXECUTION AND DELIVERY OF THIS RESTRUCTURING AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ANY MATTER UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS RESTRUCTURING AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH ACTION, SUIT OR PROCEEDING, SHALL BE BROUGHT IN ANY FEDERAL OR STATE COURT IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS RESTRUCTURING AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY ACCEPTS AND SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF EACH SUCH COURT, GENERALLY AND UNCONDITIONALLY, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING; PROVIDED THAT IN THE EVENT OF A CHAPTER 11 FILING BY THE DEBTOR, THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY ISSUES RELATING TO THIS RESTRUCTURING AGREEMENT.

13. Specific Performance. It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach by any Party of this Restructuring Agreement and, in addition to money damages, each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy of any such breach.

14. Survival. Notwithstanding (a) any Disposition of the Debt or Claims or any other pre-petition and/or post-petition claims against the Debtor in accordance with Section 2(b) or (b) the termination of this Restructuring Agreement pursuant to Section 5, the agreements and obligations of the Parties in this Section 14 and Sections 12, 16, 17, 19, and 22 shall survive such Disposition and/or termination and shall continue in full force and effect for the benefit of the Consenting Lenders in accordance with the terms hereof.

15. Headings. The headings of the Sections, paragraphs and subsections of this Restructuring Agreement are inserted for convenience only and shall not affect the interpretation hereof.

16. Successors and Assigns; Severability; Several Obligations. This Restructuring Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators and representatives. The invalidity or unenforceability at any time of any provision hereof shall not affect or diminish in any way the continuing validity and enforceability of the remaining provisions hereof. The agreements, representations and obligations of the Consenting Lenders under this Restructuring Agreement are, in all respects, several and not joint.

17. No Third-Party Beneficiaries. Unless expressly stated herein, this Restructuring Agreement shall be solely for the benefit of the Parties and no other Person shall be a third party beneficiary hereof.

18. Consideration. It is hereby acknowledged by the Parties that no consideration shall be due or paid to the Consenting Lenders for their agreement to support the Financial Restructuring and to support and not oppose the Plan, in accordance with the terms and conditions of this Restructuring Agreement, other than the Debtor’s agreement to pursue the Financial Restructuring and file, pursue confirmation of, and implement the Plan in accordance with the terms and conditions of this Restructuring Agreement, which the Parties acknowledge is fair and sufficient consideration to support the Parties’ respective agreements hereunder.

19. Prior Negotiations; Entire Agreement. This Restructuring Agreement (including all exhibits and schedules attached hereto) constitutes the entire agreement of the Parties related to the subject matter hereof, and supersedes all prior written and oral agreements, with respect to the subject matter hereof, except that the Parties acknowledge that all loan documents relating to the Debt shall continue in full force and effect. Notwithstanding the foregoing or anything set forth in this Restructuring Agreement to the contrary, Bzinfin and the Note Holders agree that (a) this Restructuring Agreement and (b) the DIP Loan Agreement and the DIP Facility shall not be subject to the Subordination Agreement, dated September 12, 2011, by and between the Debtor (on behalf of the Note Holders) and Bzinfin, in favor of the Note Holders, and the liens of Bzinfin, as agent for the lenders under the DIP Loan Agreement, shall be superior to the liens, if any, granted by the Debtor to the Note Holders in such capacity (it being understood, however, that the liens granted to Bzinfin, as agent for the lenders under the Bridge Facility, shall be superior to the liens of Bzinfin, as agent for the lenders under the DIP Loan Agreement).

20. Counterparts. This Restructuring Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. Execution copies of this Restructuring Agreement may be delivered by facsimile or electronic mail which shall be deemed to be an original for purposes of this Section 20.

21. Notices. All notices and other communications in connection with this Restructuring Agreement shall be in writing and shall be deemed given (and shall be deemed to have been duly given upon receipt) if delivered personally, sent via electronic facsimile (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the Parties as their names and addresses appear on the signature pages hereto (or in the case of a Joining Party, as their name and address appears on the Joinder signed by such Joining Party), with a copy of any notice to be provided simultaneously to counsel for such Party.

22. Reservation of Rights. Except as expressly provided in this Restructuring Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair or restrict the ability of each Consenting Lender to protect and preserve its rights, remedies and interests, including its Claims against the Debtor. Nothing herein shall be deemed an admission of any kind. If the transactions contemplated herein are not consummated, or this Restructuring Agreement is terminated for any reason, the Parties fully reserve any and all of their rights. Pursuant to Rule 408 of the Federal Rule of Evidence, any applicable state rules of evidence and any other applicable law, foreign or domestic, this Restructuring Agreement and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms.

23. Prevailing Party. If any Party brings an action or proceeding against any other Party based upon a breach by such Party of its obligations hereunder, the prevailing Party shall be entitled to all reasonable expenses incurred, including reasonable attorneys’, accountants’ and financial advisors fees in connection with such action or proceeding.

24. Public Announcements. The Parties agree that all public announcements of the entry into or the terms and conditions of this Restructuring Agreement shall be reasonably acceptable to each of the Parties. The Debtor may publicly disclose this Restructuring Agreement and the contents hereof in its Chapter 11 Case or other proceedings under the Bankruptcy Code or as otherwise required by applicable law (including rules and regulations promulgated thereunder). The Consenting Lenders and their respective affiliates may publicly disclose this Restructuring Agreement and the contents hereof as required by applicable law (including rules and regulations promulgated thereunder).

25. Restructuring Agreement Not a Plan. This Restructuring Agreement does not constitute a plan of reorganization or confirmation thereof under title 11 of the United States Code. The Plan contemplated by this Restructuring Agreement is not effective unless and until the Bankruptcy Court enters an order confirming the Plan.

26. Restructuring Agreement Not a Solicitation. Each Party hereby acknowledges that this Restructuring Agreement is not, and shall not be deemed to be, a solicitation to accept or reject any plan of reorganization in contravention of section 1126(b) of the Bankruptcy Code. Each Party further acknowledges that no securities of any Debtor are being offered or sold hereby and that this Restructuring Agreement does not constitute an offer to sell or a solicitation of an offer to buy any securities of any Debtor.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the Parties have caused this Restructuring Agreement to be executed as of the date first written above.

DEBTOR:

ENER1, INC.

By:	/s/ Alex Sorokin
	Name: Alex Sorokin
	Title: CEO

Address:

1540 Broadway
New York, NY 10036

Attention:

Nicholas Brunero

Facsimile:

212) 920-3510

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

Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
Attention: Edward J. Estrada
Facsimile: (212) 521-5450

Signature Page to Restructuring, Lockup and Plan Support Agreement

NOTE HOLDERS:

GSAM

LIBERTY HARBOR SPECIAL INVESTMENTS, LLC

By: Goldman Sachs Asset Management, L.P.

	/s/ Gregg J. Felton
	Name: Gregg J. Felton
	Title: President

GOLDMAN SACHS PALMETTO STATE CREDIT FUND, L.P.

By: Goldman Sachs Asset Management, L.P.

	/s/ Gregg J. Felton
	Name: Gregg J. Felton
	Title: Authorized Signatory

Address:

1 American Lane
Greenwich, CT 06831

Attention:

Jon Yoder and David X. Yu

Facsimile:

(203) 983-2525; (646) 835-3333

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

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Ted S. Waksman
Facsimile: (212) 310-8007

Signature Page to Restructuring, Lockup and Plan Support Agreement

WHITEBOX

WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P.

By:	/s/ Mark Strefling
	Name: Mark Strefling
	Title: CLO

PANDORA SELECT PARTNERS, L.P.

By:	/s/ Mark Strefling
	Name: Mark Strefling
	Title: CLO

WHITEBOX CONCENTRATED CONVERTIBLE ARBITRAGE PARTNERS, L.P.

By:	/s/ Mark Strefling
	Name: Mark Strefling
	Title: CLO

WHITEBOX MULTI STRATEGY PARTNERS, L.P.

By:	/s/ Mark Strefling
	Name: Mark Strefling
	Title: CLO

WHITEBOX SPECIAL OPPORTUNITIES FUND LP, SERIES B

By:	/s/ Mark Strefling
	Name: Mark Strefling
	Title: CLO

Address:

3033 Excelsior Blvd
Minneapolis, MN 55416

Attention:

Dale Willenbring and Dan Philp

Facsimile:

(612) 253-6001

Signature Page to Restructuring, Lockup and Plan Support Agreement

BZINFIN:

BZINFIN S.A.

By:	/s/ Patrick T. Bittel
	Name: Patrick T. Bittel
	Title: Proxy Holder

Avocat
Budin & Associés
20, Rue Jean Sénebier
CP 166 1211 Genève 12
Facsimile: 022 818 08 15

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

Greenberg Traurig, P.A.
333 Avenue of the Americas
(333 S.E. 2nd Avenue)
Miami, Florida 33131
Attention: Andrew E. Balog, Esq.
Facsimile: (305) 961-5642

Signature Page to Restructuring, Lockup and Plan Support Agreement

ITOCHU:

ITOCHU CORPORATION

By:	/s/ Hiroyuki Sonoda
	Name: Hiroyuki Sonoda
	Title: Deputy Chief Operating Officer, Aerospace & Industrial Systems Dvision

Address:

ITOCHU Corporation
TOKVU Section
5-1, Kita-Aoyama 2-chome
Minato-ku, Tokyo 107-8077
Japan

Attention:

Hiroaki Murase Mr. and Kunihiro Kawakita Mr.

Facsimile:

+81-3-3497-4160

Signature Page to Restructuring, Lockup and Plan Support Agreement

EXHIBIT A

PLAN OF REORGANIZATION

UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

In re:

ENER1, INC.,

Debtor.

Chapter 11

Case No.: 12-

PREPACKAGED PLAN OF REORGANIZATION

UNDER CHAPTER 11 OF THE BANKRUPTCY CODE

	REED SMITH LLP 599 Lexington Avenue 22nd Floor New York, NY 10022 Telephone: (212) 521 5400 Facsimile: (212) 521 5450 Proposed Counsel for the Debtor

Dated: January 26, 2012

TABLE OF CONTENTS

Page

ARTICLE 1. DEFINITIONS, INTERPRETATION AND RULES OF

CONSTRUCTION		4
A. Scope of Definitions		4
B. Definitions		4
1.1	Administrative Claim	4
1.2	Affiliate	5
1.3	Allowed [ ] Claim	5
1.4	Allowed Claim	5
1.5	Avoidance Action	5
1.6	Bankruptcy Code	6
1.7	Bankruptcy Court	6
1.8	Bankruptcy Rules	6
1.9	Bridge Loan Agreement	6
1.10	Bridge Loan Claims	6
1.11	Bridge Loan Documents	6
1.12	Bridge Loan Lenders	6
1.13	Business Day	6
1.14	Cash	7
1.15	Cause of Action	7
1.16	Chapter 11 Case	7
1.17	Claim	7
1.18	Class	7
1.19	Confirmation	7
1.20	Confirmation Date	7
1.21	Confirmation Hearing	8
1.22	Confirmation Order	8
1.23	Convertible Note Claims	8
1.24	Convertible Note Claims New Common Stock Amount	8
1.25	Convertible Notes	8
1.26	Creditor	8
1.27	Debtor	8
1.28	DIP Agreement	8
1.29	DIP Facility	8
1.30	DIP Facility Orders	8
1.31	DIP Lenders	9
1.32	Disclosure Statement	9
1.33	Disputed Claim	9
1.34	Effective Date	9
1.35	Entity	9
1.36	Estate	9

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1.37	Exculpated Parties	9
1.38	Exit Funding	10
1.39	Exit Funder	10
1.40	File or Filed	10
1.41	Final Decree	10
1.42	Final Distribution	10
1.43	Final Distribution Date	10
1.44	Final Order	10
1.45	General Unsecured Claims	11
1.46	Governmental Unit	11
1.47	Impaired	11
1.48	Intercompany Claim	11
1.49	Interest	11
1.50	Lien	12
1.51	Line of Credit Agreement	12
1.52	Line of Credit Claims	12
1.53	Line of Credit Claims New Common Stock Amount	12
1.54	New Board of Directors	12
1.55	New Common Stock	12
1.56	New Directors	13
1.57	New Notes	13
1.58	New Notes Loan Agreement	13
1.59	New Organization Documents	13
1.60	New Preferred Stock	13
1.61	Non-Debtor Affiliates	13
1.62	Person	13
1.63	Petition Date	14
1.64	Plan	14
1.65	Plan Supplement	14
1.66	Plan Support Agreement	14
1.67	Plan Support Parties	14
1.68	Priority Non-Tax Claim	14
1.69	Priority Tax Claim	15
1.70	Professional	15
1.71	Professional Claim	15
1.72	Registration Rights Agreement	15
1.73	Rejection Damage Claim	15
1.74	Rejection Damage Claim Bar Date	15
1.75	Reorganized Debtor	16
1.76	Requisite Consenting Lenders	16
1.77	Senior Notes	16
1.78	Senior Notes Agreement	16
1.79	Senior Note Claims	16
1.80	Senior Note Claims New Common Stock Amount	16
1.81	Stockholders Agreement	16
1.82	Subordination Agreement	17
1.83	Taxes	17

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1.84	Total New Common Stock Calculation Amount	17
1.85	Total New Preferred Stock Amount	17
1.86	Unimpaired	17
1.87	United States Trustee	17
1.88	Voting Classes	17
1.89	Warrants	18
C. Rules of Interpretation.		18
D. Computation of Time		20
E. Reference to Monetary Figures		20
F. Governing Law		20
ARTICLE 2. TREATMENT OF UNCLASSIFIED CLAIMS		21
2.1	DIP Claims	21
2.2	Administrative Claims	21
2.3	Statutory Fees	22
2.4	Professional Claims	22
2.5	Priority Tax Claims	22
ARTICLE 3. CLASSIFICATION OF CLAIMS AND INTERESTS		23
A. General		23
B. Classification		23
3.1	Class 1: Priority Non-Tax Claims	23
3.2	Class 2: Bridge Loan Claims	23
3.3	Class 3: Senior Note Claims	23
3.4	Class 4: Convertible Note Claims	23
3.5	Class 5: Line of Credit Claims	23
3.6	Class 6: General Unsecured Claims	24
3.7	Class 7: Interests	24
ARTICLE 4. IDENTIFICATION OF CLASSES IMPAIRED AND NOT IMPAIRED BY THE PLAN		24
4.1	Voting Classes: Classes of Claims Entitled to Vote.	24
4.2	Unimpaired Classes of Claims Not Entitled to Vote.	24
4.3	Impaired Classes of Interests Deemed to Reject the Plan and Not Entitled to Vote	24
ARTICLE 5. TREATMENT OF CLAIMS AND INTERESTS		25
5.1	Class 1 (Priority Non-Tax Claims)	25
5.2	Class 2 (Bridge Loan Claims)	25
5.3	Class 3 (Senior Note Claims).	25
5.4	Class 4 (Convertible Note Claims).	26
5.5	Class 5 (Line of Credit Claims).	27
5.6	Class 6 (General Unsecured Claims)	27
5.7	Class 7 (Interests)	28

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ARTICLE 6. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES		28
6.1	Assumption and Rejection of Contracts and Leases.	28
6.2	Amendments to Schedule 2: Rejected Executory Contracts and Unexpired Leases.	29
6.3	Cure Payments; Adequate Assurance of Performance.	29
6.4	Rejection Damage Claims	31
6.5	Indemnification Agreements.	31
ARTICLE 7. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN		32
7.1	Exit Funding	32
7.2	Issuance of New Notes	32
7.3	Issuance of New Common Stock and New Preferred Stock	32
7.4	No Fractional Shares.	33
7.5	Record Date for Distributions	33
7.6	Continuation of Automatic Stay	33
7.7	Post-Confirmation Operations.	34
7.8	Effectiveness of Securities, Instruments, Agreements and By-laws of the Reorganized Debtor.	34
7.9	Restructuring of the Reorganized Debtor.	35
7.10	Corporate Action.	35
7.11	Exemption from Securities Laws	35
7.12	Avoidance Actions.	36
7.13	Post-Effective Date Reporting.	36
ARTICLE 8. PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER THE PLAN		36
8.1	Filing of Proofs of Claim Not Required	36
8.2	Disputed Claims	36
8.3	Objections to Claims	36
8.4	No Distributions Pending Allowance	37
8.5	Distributions After Allowance	37
ARTICLE 9. DISTRIBUTIONS		37
9.1	Delivery of Distributions in General.	37
9.2	Undeliverable Distributions.	37
9.3	Distributions After the Effective Date	38
9.4	Cash Payments.	38
9.5	Interest on Claims.	38
9.6	Compliance with Tax Requirements.	39
ARTICLE 10. CONDITIONS PRECEDENT		39
10.1	Conditions to Confirmation.	39
10.2	Conditions to the Effective Date.	39
10.3	Waiver of Conditions Precedent	40
10.4	Termination of Plan for Failure To Become Effective.	40
10.5	Notice of Effective Date.	40

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ARTICLE 11. EFFECT OF CONFIRMATION		41
11.1	Entry of Confirmation Order.	41
11.2	Binding Effect.	41
11.3	Exculpation.	41
11.4	Discharge of Debtor	42
11.5	Waiver of Avoidance Actions	42
11.6	Vesting of Assets	42
11.7	Citibank Guaranty Not Affected	43
ARTICLE 12. COMPROMISE, GLOBAL SETTLEMENT, INJUNCTION AND RELATED PROVISIONS		43
12.1	Compromise and Settlement	43
12.2	Satisfaction of Claims and Termination of Interests	44
12.3	Releases by the Debtor	45
12.4	Mutual Releases by the Plan Support Parties	46
12.5	Injunctions.	47
ARTICLE 13. RETENTION OF JURISDICTION		48
ARTICLE 14. MISCELLANEOUS PROVISIONS		50
14.1	Modification of the Plan.	50
14.2	Release of the Liens of the Bridge Lenders	51
14.3	Filing of Additional Documents	51
14.4	No Admissions.	51
14.5	Severability of Plan Provisions.	51
14.6	Successors and Assigns.	52
14.7	Exemption from Certain Transfer Taxes.	52
14.8	Preservation of Rights of Setoffs.	52
14.9	Defenses with Respect to Unimpaired Claims.	53
14.10	No Injunctive Relief.	53
14.11	Saturday, Sunday or Legal Holiday.	53
14.12	Entire Agreement.	53
14.13	Notices.	53
14.14	Closing of Chapter 11 Case	55
14.15	Waiver or Estoppel	55
14.16	Conflicts	55
14.17	Section 1125(e) of the Bankruptcy Code	55
14.18	Expedited Tax Determination	56
14.19	Dissolution of any Statutory Committees and Cessation of Fee and Expense Payment	56
14.20	Fees and Expenses of Plan Support Parties	56

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Schedules to the Plan

The following documents are annexed to, and form an integral part, of this Plan:

Schedule 1:

Form of the New Notes Loan Agreement to be entered into as of the Effective Date (see Annex 5 to Plan Support Agreement)

Schedule 2:

Executory Contracts and Unexpired Leases to be Rejected

Schedule 3:

Form of Stockholders Agreement to be entered into as of the Effective Date (see Annex 1 to Plan Support Agreement)

Schedule 4:

Form of the Equity Commitment Agreement to be entered into as of the Effective Date (see Annex 1 to Plan Support Agreement)

Schedule 5:

New Organization Documents (see Annex 3 and 4 to Plan Support Agreement)

Schedule 6:

Form of the Registration Rights Agreement to be entered into as of the Effective Date (see Annex 2 to Plan Support Agreement)

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INTRODUCTION

Ener1, Inc., a Florida corporation (the “Debtor”), proposes this Prepackaged Plan of Reorganization under Chapter 11 of the Bankruptcy Code (as defined below). The Debtor is the proponent of this Plan (as defined below) within the meaning of section 1129 of the Bankruptcy Code. All capitalized terms not defined in this Introduction have the meanings ascribed to them in Article 1 of this Plan, in other sections of the Plan, or in the Bankruptcy Code.

Reference is made to the Disclosure Statement, distributed contemporaneously herewith, for a discussion of the Debtor’s history, businesses, resolution of material disputes, significant asset sales, and financial projections as well as a summary and analysis of the Plan and certain related matters.1

ALL HOLDERS OF CLAIMS IN VOTING CLASSES ARE ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.

Under sections 1125(g) and 1126(b) of the Bankruptcy Code, a vote to accept or reject the Plan may be solicited from holders of Claims prior to the commencement of a case under Chapter 11 of the Bankruptcy Code if such solicitation complies with applicable non-bankruptcy law and, a vote to accept or reject the Plan also may be solicited from holders of Claims after the commencement of a case under Chapter 11 of the Bankruptcy Code and prior to approval of a disclosure statement so long as the solicitation was commenced prior to the filing of the petition and in compliance with applicable nonbankruptcy law.

1 As of the date of the Disclosure Statement, the Debtor has not commenced a case under Chapter 11 of the Bankruptcy Code. Because no Chapter 11 case has been commenced, the Disclosure Statement has not been approved by any Bankruptcy Court with respect to whether it contains adequate information within the meaning of section 1125(a) of the Bankruptcy Code or complies with applicable non-bankruptcy law. Nonetheless, if a Chapter 11 case is commenced, the Debtor expects to promptly seek an order of the Bankruptcy Court approving the Disclosure Statement pursuant to section 1125 of the Bankruptcy Code and determining that the solicitation of votes on this Plan by means of the Disclosure Statement was in compliance with section 1126(b) of the Bankruptcy Code.

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The Debtor urges holders of Claims entitled to vote on the Plan to read this Plan and the Disclosure Statement in their entirety before voting to accept or reject this Plan. To the extent, if any, that the Disclosure Statement is inconsistent with the Plan, the Plan will govern. No solicitation materials other than the Disclosure Statement and any schedules and exhibits attached thereto, referenced therein, or otherwise enclosed with the Disclosure Statement served on interested parties, have been authorized by the Debtor for use in soliciting acceptances of the Plan.

It is expected that this Plan will be accepted by the requisite number and amount of holders of Class 3, Class 4, and Class 5 Claims. If the requisite number and amount of holders of Class 3, Class 4, and Class 5 Claims vote to accept this Plan, the Debtor will file the Plan as part of a “prepackaged” bankruptcy filing.

Holders of Claims in Class 1, Class 2 and Class 6 will not be impaired by the Plan and will be deemed to accept the Plan. Accordingly, the Debtor will not solicit acceptances or rejections of the Plan from holders of Claims in Class 1, Class 2 and Class 6.

Holders of Interests in Class 7 will not receive any distribution nor retain any property under the Plan on account of such Interests and, pursuant to section 1126(g) of the Bankruptcy Code, are conclusively deemed to reject the Plan. Accordingly, the Debtor will not solicit acceptances or rejections of the Plan from holders of Interests in Class 7 and will seek to confirm the Plan notwithstanding the deemed rejection of such Class pursuant to sections 1129(b)(1) and (2)(C) of the Bankruptcy Code.

-3-

Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code, Bankruptcy Rule 3019 and section 14.1 of this Plan, the Debtor expressly reserves the right to alter, amend, modify, revoke or withdraw this Plan prior to its consummation.

ARTICLE 1.

DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION

A. Scope of Definitions. For the purposes of this Plan, except as expressly provided or unless the context otherwise requires, all capitalized terms not otherwise defined shall have the meanings ascribed to them in this Article 1 of the Plan or in other provisions of this Plan. Any term used in this Plan that is not defined herein, but is defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed to that term in the Bankruptcy Code or the Bankruptcy Rules, respectively. Whenever the context requires, capitalized terms shall include the plural as well as the singular number, the masculine gender shall include the feminine and the feminine gender shall include the masculine.

B. Definitions. In addition to such other terms as are defined in other sections of the Plan, the following terms (which appear in the Plan as capitalized terms) shall have the meanings ascribed to them in this Article 1 of the Plan.

1.1 Administrative Claim: A Claim for any cost or expense of administration (including Professional Claims) of the Chapter 11 Case asserted or arising under sections 503, 507(a)(2) or 507(b) of the Bankruptcy Code, including any (i) actual and necessary cost or expense of preserving the Debtor’s Estate or operating the business of the Debtor arising on or after the Petition Date, (ii) payment to be made under this Plan to cure a default on an executory contract or unexpired lease that is assumed pursuant to section 365 of the Bankruptcy Code, (iii) obligations validly incurred or assumed by the Debtor in the ordinary course of business arising on or after the Petition Date, (iv) compensation or reimbursement of expenses of Professionals arising on or after the Petition Date, to the extent allowed by the Bankruptcy Court under section 330(a) or section 331 of the Bankruptcy Code, (v) fees or charges of the Debtor’s Estate under section 1930 of title 28 of the United States Code, and (vi) costs and expenses incurred by the DIP Lender in accordance with the provisions of the DIP Facility.

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1.2 Affiliate: Has the meaning ascribed thereto in section 101(2) of the Bankruptcy Code.

1.3 Allowed [ ] Claim: An Allowed Claim in the particular category or Class identified.

1.4 Allowed Claim: Claim against the Debtor or any portion thereof (i) arising on or before the Effective Date as to which a proof of claim has been filed and (a) no objection to allowance has been interposed within the time period set forth in section 8.3 of the Plan or (b) an objection has been adjudicated by a Final Order to the extent such objection is determined in favor of the relevant holder, (ii) any Claim as to which the liability of the Debtor and the amount thereof are determined by a Final Order of a court of competent jurisdiction other than the Bankruptcy Court, (iii) any Claim that is expressly allowed by a provision of the Plan, or (iv) any Claim that has been scheduled by the Debtor in the Schedules filed with the Bankruptcy Court pursuant to Rule 1007(b) of the Federal Rules of Bankruptcy Procedure.

1.5 Avoidance Action: Any actual or potential Claims to avoid a transfer of an interest in property or an obligation incurred by the Debtor pursuant to any applicable section of the Bankruptcy Code, including, all claims under Chapter 5 of the Bankruptcy Code.

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1.6 Bankruptcy Code: Title 11 of the United States Code, as in effect on the Petition Date and as thereafter amended, as applicable in the Chapter 11 Case.

1.7 Bankruptcy Court: The United States Bankruptcy Court for the Southern District of New York acting in, and exercising its jurisdiction over, the voluntary Chapter 11 Case of the Debtor.

1.8 Bankruptcy Rules: The Federal Rules of Bankruptcy Procedure and the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the

Southern District of New York, as in effect on the Petition Date and as thereafter amended, as applicable from time to time in the Chapter 11 Case.

1.9 Bridge Loan Agreement: The Loan Agreement dated November 16, 2011, by and among the Debtor, Bzinfin S.A., Goldman Sachs Palmetto State Credit Fund, L.P., and Liberty Harbor Special Investments, LLC, as may be amended or supplemented from time to time.

1.10 Bridge Loan Claims: Claims arising under the Bridge Loan Documents, including all reasonable costs and expenses incurred by the Bridge Loan Lenders and all reasonable expenses of the Bridge Loan Lenders in connection with the restructuring of the Debtor, the Chapter 11 Case, and the negotiation, administration, monitoring, and enforcement of the Bridge Loan Documents and/or any related agreements, documents or instruments.

1.11 Bridge Loan Documents: Shall have the meaning ascribed to the term “Loan Documents” in the Bridge Loan Agreement.

1.12 Bridge Loan Lenders: The lenders under the Bridge Loan Documents.

1.13 Business Day: Any day other than a Saturday, Sunday, a “legal holiday”, as such term is defined in Rule 9006(a) of the Federal Rules of Bankruptcy Procedure, or any other day on which banking institutions in New York, New York are required or authorized to close by law or executive order.

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1.14 Cash: Legal tender accepted in the United States of America for the payment of public and private debts, denominated in United States dollars.

1.15 Cause of Action: Any: (i) Claims, causes of action, demands, rights, actions, suits, obligations, liabilities, accounts, defenses and offsets; (ii) all rights of setoff, counterclaim or recoupment and Claims on contracts or for breaches of duties imposed by law; (iii) rights to object to Claims or Interests; (iv) Avoidance Actions; and (v) Claims and defenses such as fraud, mistake, duress and usury and any other defenses available to the Debtor under section 558 of the Bankruptcy Code or otherwise of any kind or character whatsoever, known or unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, whether arising before, on, or after the Petition Date including through the Effective Date, in contract, sounding in tort, at law, in equity, or pursuant to any other theory of law.

1.16 Chapter 11 Case: The Chapter 11 case of the Debtor to be commenced in the Bankruptcy Court.

1.17 Claim: A claim as defined in section 101(5) of the Bankruptcy Code.

1.18 Class: A group of Claims or Interests as classified in a particular class under the Plan pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code.

1.19 Confirmation: Entry of the Confirmation Order by the Bankruptcy Court.

1.20 Confirmation Date: The date on which the Bankruptcy Court enters the Confirmation Order on its docket, within the meaning of Bankruptcy Rules 5003 and 9021.

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1.21 Confirmation Hearing: The hearing held by the Bankruptcy Court to consider Confirmation of the Plan pursuant to section 1128 of the Bankruptcy Code, including any adjournments or continuances thereof.

1.22 Confirmation Order: The order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code.

1.23 Convertible Note Claims: Claims arising under the Convertible Notes.

1.24 Convertible Note Claims New Common Stock Amount: $8,906,459.61.

1.25 Convertible Notes: The 6% Senior Convertible Notes, due August 27, 2015, issued by the Debtor pursuant to the Note Purchase Agreement, dated August 27, 2010, in the aggregate principal amount of $10,000,000, plus accrued and unpaid interest, fees and costs.

1.26 Creditor: Any Entity holding a Claim against the Debtor.

1.27 Debtor: Shall have the meaning ascribed in the Introduction to the Plan.

1.28 DIP Agreement: The Debtor in Possession Loan Agreement by and among the Debtor, as debtor and debtor-in-possession, and Bzinfin, as lender and as agent for the lenders, to be entered into on or shortly after the commencement of the Chapter 11 Case, pursuant to which the DIP Lenders will make post-petition loans and advances to the Debtor consisting of a debtor-in-possession credit facility in an aggregate principal amount not to exceed $20,000,000, as may be amended or supplemented from time to time.

1.29 DIP Facility: The facility provided to the Debtor by the DIP Lenders, as evidenced by the DIP Agreement.

1.30 DIP Facility Orders: Any interim order and Final Order of the Bankruptcy Court authorizing the Debtor to enter into the DIP Facility.

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1.31 DIP Lenders: Bzinfin and any other person that may become a lender under the DIP Agreement pursuant to section 13.2(a) thereof, in their respective capacities as lenders under the DIP Facility.

1.32 Disclosure Statement: The written disclosure statement dated January 25, 2012 relating to the Plan, including all schedules and exhibits attached thereto, as it may be amended, modified or supplemented from time to time.

1.33 Disputed Claim: Any Claim, to the extent neither Allowed nor disallowed under the Plan or a Final Order, or for which a proof of claim has been timely Filed with the Bankruptcy Court or a written request for payment has been made, to the extent the Debtor or any party in interest has interposed a timely objection in accordance with section 8.2 of the Plan, which objection has not been withdrawn or determined by a Final Order.

1.34 Effective Date: A date selected by the Debtor with the consent of the Requisite Consenting Lenders that is not more than five (5) Business Days following the first date on which all conditions to the Effective Date set forth in section 10.2 of the Plan have been satisfied or, if waivable, waived.

1.35 Entity: An entity as defined in section 101(15) of the Bankruptcy Code.

1.36 Estate: The estate of the Debtor created pursuant to section 541 of the Bankruptcy Code by the commencement of the Chapter 11 Case.

1.37 Exculpated Parties: Each of the Debtor, the DIP Lenders, the Exit Funder, all creditors who executed the Plan Support Agreement, and any of such parties’ respective members, officers, directors, affiliates, employees, representatives, advisors, attorneys, financial advisors, investment bankers or agents.

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1.38 Exit Funding: The commitment of the Exit Funder to provide financing in an amount of up to $81 million less the principal amount outstanding under the DIP Facility as of the Effective Date on the terms set forth in the Equity Commitment Agreement, substantially in the form annexed as Schedule 4 to the Plan, to be entered into as of the Effective Date.

1.39 Exit Funder: Each of Bzinfin S.A. (or its Affiliate), Goldman Sachs Palmetto State Credit Fund, L.P., Liberty Harbor Special Investments, LLC, Whitebox Multi Strategy Partners, L.P., Whitebox Concentrated Convertible Arbitrage Partners L.P., Pandora Select Partners, L.P., Whitebox Credit Arbitrage Partners, L.P., and Whitebox Special Opportunities Fund LP, Series B, in each case, in its capacity as a provider of a portion of the Exit Funding, in accordance with the terms of the Equity Commitment Agreement.

1.40 File or Filed: To file, or to have been filed, with the Clerk of the Bankruptcy Court in the Chapter 11 Case.

1.41 Final Decree: A Final Order of the Bankruptcy Court entered pursuant to section 350(a) of the Bankruptcy Code closing the Chapter 11 Case.

1.42 Final Distribution: The final payment made to any holders of Claims in Class 6 (General Unsecured Claims).

1.43 Final Distribution Date: The date upon which the Final Distribution is made.1.44 Final Order: An order or judgment of the Bankruptcy Court or other court of competent jurisdiction, as entered on its docket, that has not been reversed, stayed, vacated, modified or amended, and as to which (i) the time to appeal, petition for certiorari or move for a stay, reargument, rehearing or a new trial has expired and no appeal, petition for certiorari or motion for stay, reargument, rehearing or a new trial, respectively, shall then be pending, or (ii) any appeal, any petition for certiorari or any motion for stay, reargument, rehearing or a new trial that has been timely filed has been resolved by the highest court (or any other tribunal having appellate jurisdiction over the order or judgment) to which the order or judgment was appealed or from which certiorari or stay, reargument, rehearing or a new trial was sought, and the time to take any further appeal, petition for certiorari or move for stay, reargument, rehearing or a new trial shall have expired without such actions having been taken, provided, however, that no order or judgment shall fail to be a “Final Order” solely because of the possibility that a motion pursuant to section 502(j) or 1144 of the Bankruptcy Code or under Rule 60 of the Federal Rules of Civil Procedure or Bankruptcy Rule 9024 has been or may be filed with respect to such order or judgment.

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1.45 General Unsecured Claims: All Claims against the Debtor other than DIP Claims, Administrative Claims, Priority Tax Claims, Priority Non-Tax Claims, Bridge Loan Claims, Senior Note Claims, Convertible Note Claims, and Line of Credit Claims.

1.46 Governmental Unit: Shall have the meaning ascribed to such term in section 101(27) of the Bankruptcy Code.

1.47 Impaired: When used with reference to a Claim, an Interest or a Class of Claims or Interests, “Impaired” shall have the meaning ascribed to it in section 1124 of the Bankruptcy Code.

1.48 Intercompany Claim: Any Claim held by the Debtor against a Non-Debtor Affiliate or by a Non-Debtor Affiliate against the Debtor.

1.49 Interest: When used in the context of holding an equity interest (and not used to denote (i) the compensation paid for the use of money for a specified time and usually denoted as a percentage rate of interest on a principal sum of money or (ii) a security interest in property), the term “Interest” means “equity security”, as defined in section 101(16) of the Bankruptcy Code, and includes all issued shares of common stock and preferred stock of the Debtor as of the Petition Date, all Warrants, options, or other rights, contractual or otherwise, to acquire any such equity interest in the debtor, or the right to purchase, sell, or subscribe to a share, security, or interest specified in subparagraph (A) or (B) of section 101(16) of the Bankruptcy Code, and any subordinated claim which arises pursuant to section 510(b) of the Bankruptcy Code.

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1.50 Lien: Shall have the meaning set forth in section 101(37) of the Bankruptcy Code.

1.51 Line of Credit Agreement: The Line of Credit Agreement dated June 29, 2011, as amended, by and between the Debtor and Bzinfin S.A., that established a line of credit for the Debtor in the aggregate principal amount of $15,000,000, as may be amended or supplemented from time to time, provided, however, that pursuant to the terms of the Subordination Agreement the indebtedness under the Line of Credit Agreement is subordinated to the indebtedness under the Senior Notes Agreement.

1.52 Line of Credit Claims: The Claims arising under the Line of Credit Agreement.

1.53 Line of Credit Claims New Common Stock Amount: $12,081,177.28

1.54 New Board of Directors: The board of directors of the Reorganized Debtor on and after the Effective Date.

1.55 New Common Stock: The common stock, par value $0.01 per share, to be issued by the Reorganized Debtor on the Effective Date to the holders of Claims in Classes 3, 4, and 5 pursuant to sections 5.3, 5.4, and 5.5 of this Plan and reserved for issuance upon the conversion of New Preferred Stock into New Common Stock.

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1.56 New Directors: The persons identified in the Plan Supplement who will serve as directors of the Reorganized Debtor on and after the Effective Date.

1.57 New Notes: The notes to be issued to the holders of Claims in Class 3, pursuant to the New Notes Loan Agreement and section 5.3 of this Plan.

1.58 New Notes Loan Agreement: The Loan Agreement, substantially in the form annexed as Schedule 1 to this Plan, to be entered into on the Effective Date by and among the Debtor, and as lenders, Goldman Sachs Palmetto State Credit Fund, L.P.; Liberty Harbor Special Investments, LLC; Whitebox Multi Strategy Partners, L.P.; Whitebox Concentrated Convertible Arbitrage Partners L.P.; Pandora Select Partners, L.P.; Whitebox Credit Arbitrage Partners, L.P.; and Whitebox Special Opportunities Fund LP, Series B, as may be amended or supplemented from time to time.

1.59 New Organization Documents: The Amended and Restated Articles of Incorporation and the Amended and Restated Bylaws of the Reorganized Debtor, substantially in the form annexed as Schedule 5.

1.60 New Preferred Stock: The Series A Cumulative Convertible Preferred Stock to be issued by the Reorganized Debtor on the Effective Date.

1.61 Non-Debtor Affiliates: All Entities that are, directly or indirectly, owned or controlled by the Debtor.

1.62 Person: A “person” as defined in section 101(41) of the Bankruptcy Code.

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1.63 Petition Date: The date on which the Debtor’s voluntary petition commencing the Chapter 11 Case is filed with the Bankruptcy Court.

1.64 Plan: This Prepackaged Plan of Reorganization under Chapter 11 of the Bankruptcy Code, and all schedules annexed hereto or referenced herein, as it may be amended, modified or supplemented from time to time in accordance with the provisions of the Plan, the Bankruptcy Code or the Bankruptcy Rules.

1.65 Plan Supplement: The compilation of documents, forms of documents, schedules, or exhibits to the Plan to be Filed by the Debtors no later than five (5) Business Days prior to the Confirmation Hearing or such later date as may be approved by the Bankruptcy Court on notice to parties in interest. With the prior consent of the Requisite Consenting Lenders, the Debtors shall have the right to amend the documents contained in the Plan Supplement, through and including the Effective Date.

1.66 Plan Support Agreement: The Plan Support Agreement entered into as of January 25, 2012, by and among the Debtor and the Plan Support Parties, attached to the Disclosure Statement, as amended or supplemented from time to time.

1.67 Plan Support Parties: Collectively, Bzinfin S.A.; ITOCHU Corporation; Liberty Harbor Special Investments, LLC; Goldman Sachs Palmetto State Credit Fund, L.P.; Whitebox Multi Strategy Partners, L.P.; Whitebox Concentrated Convertible Arbitrage Partners L.P.; Pandora Select Partners, L.P.; Whitebox Credit Arbitrage Partners, L.P.; and Whitebox Special Opportunities Fund LP, Series B.

1.68 Priority Non-Tax Claim: Any Claim of any Creditor entitled to priority in payment as specified in section 507(a)(4), (5), (6) or (7) of the Bankruptcy Code.

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1.69 Priority Tax Claim: Any Claim of a Government Unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.

1.70 Professional: A Person (i) employed in the Chapter 11 Case pursuant to a Final Order in accordance with sections 327, 328 or 1103 of the Bankruptcy Code and to be compensated for services rendered prior to the Effective Date, pursuant to sections 327, 328, 329, 330, 331 and 363 of the Bankruptcy Code or (ii) for which compensation and reimbursement has been allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.

1.71 Professional Claim: A Claim of a Professional (i) for compensation or reimbursement of actual and necessary costs and expenses relating to services incurred after the Petition Date and prior to and including the Effective Date or (ii) for compensation and reimbursement that has been allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.

1.72 Registration Rights Agreement: The Registration Rights Agreement, substantially in the form annexed as Schedule 6 to the Plan, to be entered into by the Reorganized Debtor and the holders of the New Common Stock and the New Preferred Stock as of the Effective Date.

1.73 Rejection Damage Claim: Any Claim arising from the rejection, whether under section 365 of the Bankruptcy Code or under the Plan, of an executory contract or unexpired lease of the Debtor that has not been assumed.

1.74 Rejection Damage Claim Bar Date: The thirtieth (30th) day following the later of (i) the Effective Date or (ii) the date on which the Debtor serves a written notice of entry of an order granting a motion to reject that has been entered by the Bankruptcy Court prior to the Confirmation Date in accordance with section 6.1 of the Plan.

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1.75 Reorganized Debtor: The Debtor, or any successor thereto, by merger, consolidation, or otherwise, on or after the Effective Date.

1.76 Requisite Consenting Lenders: The “Requisite Consenting Lenders” as such term is defined in the Plan Support Agreement.

1.77 Senior Notes: Consists of (i) the Tranche A 8.25% Senior Notes, due July 1, 2013, in the principal amount of $28,094,214, and (ii) the Tranche B 8.25% Senior Notes, due July 1, 2013, in the principal amount of $29,250,000, which were issued pursuant to the Senior Notes Agreement, in each case plus all accrued interest thereon and all other obligations due under the Senior Notes Agreement.

1.78 Senior Notes Agreement: The Waiver, Amendment, and Exchange Agreement, dated September 9, 2011, by and among the Debtor, Liberty Harbor Special Investments, LLC, Goldman Sachs Palmetto State Credit Fund, L.P., Whitebox Multi Strategy Partners, L.P., Whitebox Concentrated Convertible Arbitrage Partners L.P., Pandora Select Partners, L.P., Whitebox Credit Arbitrage Partners, L.P., and Whitebox Special Opportunities Fund LP, Series B, as may be amended or supplemented from time to time.

1.79 Senior Note Claims: Claims arising under the Senior Notes Agreement.

1.80 Senior Note Claims New Common Stock Amount: $15,516,807.58.

1.81 Stockholders Agreement: The Stockholders Agreement, substantially in the form annexed as Schedule 3 to the Plan, to be entered into by the Reorganized Debtor and the holders of the New Common Stock and the New Preferred Stock as of the Effective Date.

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1.82 Subordination Agreement: The Letter Agreement, dated September 12, 2011, by and between the Debtor and Bzinfin S.A., providing, among other things, that the indebtedness under the Line of Credit Agreement is subordinated to the indebtedness under the Senior Notes Agreement, as may be amended or supplemented from time to time.

1.83 Taxes: All income, gaming, franchise, excise, sales, use, employment, withholding, property, payroll or other taxes, assessments, or governmental charges, together with any interest, penalties, additions to tax, fines, and similar amounts relating thereto, imposed or collected by any federal, state, local or foreign Governmental Unit on or from the Debtor.

1.84 Total New Common Stock Calculation Amount: The Total New Common Stock Calculation Amount is equal to the sum of the Convertible Note Claims New Common Stock Amount, the Line of Credit Claims New Common Stock Amount, the Senior Note Claims New Common Stock Amount, and the Total New Preferred Stock Amount.

1.85 Total New Preferred Stock Amount: The Total New Preferred Stock Amount is the aggregate liquidation value of the New Preferred Stock to be issued on the Effective Date in an amount equal to the sum of the principal amount outstanding under the DIP Facility on the Effective Date and the amount of the Exit Funding provided as of the Effective Date.

1.86 Unimpaired: Any Claim or Class of Creditors that is not Impaired.

1.87 United States Trustee: The United States Trustee appointed under section 581(a)(3) of title 28 of the United States Code to serve in the Southern District of New York.

1.88 Voting Classes: The Impaired Classes entitled to vote to accept or reject the Plan.

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1.89 Warrants: All warrants, issued at any time by the Debtor, to acquire any stock of the Debtor including, but not limited to, (i) warrants to purchase up to 2,882,775 shares of the Debtor’s common stock issued pursuant to the September 2, 2010, Securities Purchase Agreement, (ii) warrants to purchase up to 1,019,353 shares of the Debtor’s common stock issued pursuant to the December 31, 2010, Securities Purchase Agreement, and (iii) warrants to purchase up to 1,400,000 shares of the Debtor’s common stock issued pursuant to the Senior Notes Agreement.

C. Rules of Interpretation.

1. In the event of an inconsistency, the provisions of the Plan shall control over the contents of the Disclosure Statement. The provisions of the Confirmation Order shall control over the contents of the Plan.

2. For the purposes of the Plan:

(a) any reference in the Plan to a contract, instrument, release or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; provided, however, that any change to such form, terms or conditions that is material to a party to such document shall not be modified without such party’s written consent unless such document expressly provides otherwise;

(b) any reference in the Plan to an existing document or schedule Filed or to be Filed means such document or schedule, as it may have been or may be amended, modified or supplemented as of the Effective Date;

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(d) unless otherwise specified, all references in the Plan to “sections,” “Articles,” and “Schedules” are references to sections, Articles and Schedules of , or to, the Plan;

(e) the words “herein,” “hereof,” “hereto,” “hereunder” and others of similar import refer to the Plan in its entirety rather than to only a particular portion of the Plan;

(f) captions and headings to articles and sections are inserted for convenience of reference only and are not intended to be part or to affect interpretations of the Plan;

(g) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time and as applicable to the Debtor, the Reorganized Debtor, or the Chapter 11 Case unless otherwise stated;

(h) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply, except to the extent inconsistent with the provisions of this Article of the Plan; and,

(i) the word “including” means “including without limitation.”

3. Whenever a distribution of property is required to be made on a particular date, the distribution shall be made on such date or as soon as reasonably practicable thereafter.

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4. All schedules to the Plan are incorporated into the Plan and shall be deemed to be included in the Plan, regardless of when they are filed.

5. Subject to the provisions of any contract, certificate, bylaws, instrument, release or other agreement or document entered into in connection with the Plan, the rights and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, federal law, including the Bankruptcy Code and Bankruptcy Rules.

6. The Plan is the product of extensive discussions and negotiations between and among, inter alia, the Debtor, the Plan Support Parties and the DIP Lenders. Each of the foregoing either (i) participated in the formulation and documentation of, or (ii) was afforded the opportunity to review and provide comments on, the Plan, the Disclosure Statement, and the documents ancillary thereto.

D. Computation of Time. In computing any period of time prescribed or allowed by the Plan, unless otherwise expressly provided, the provisions of Rule 9006(a) of the Federal Rules of Bankruptcy Procedure shall apply.

E. Reference to Monetary Figures. All references in the Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided.

F. Governing Law. Unless a rule of law or procedure is supplied by the Bankruptcy Code or the Bankruptcy Rules or unless otherwise specifically stated, the laws of the State of New York, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements, documents, instruments, or contracts executed or entered into in connection with the Plan except as otherwise set forth in those agreements, in which case the governing law as set forth in such agreement shall control.

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ARTICLE 2.

TREATMENT OF UNCLASSIFIED CLAIMS

2.1 DIP Claims The DIP Facility will terminate and all obligations thereunder will be due and payable in full on the Effective Date. The principal amount due under the DIP Facility will be fully satisfied with shares of New Preferred Stock having an aggregate liquidation preference equal to the principal amount due under the DIP Facility. All other obligations under the DIP Facility, including accrued and unpaid interest and default interest, if any, shall be paid either in Cash on the Effective Date or upon such other terms as may be agreed to by the Debtor and the DIP Lenders, provided, however, that the Requisite Consenting Lenders consent to any such other terms.

2.2 Administrative Claims. On the Effective Date or as soon thereafter as is practicable, each holder of an Allowed Administrative Claim shall receive on account of such Allowed Administrative Claim and in full satisfaction, settlement and release of and in exchange for such Allowed Administrative Claim, (i) Cash equal to the unpaid portion of such Allowed Administrative Claim, or (ii) such other treatment as to which the Debtor and the holder of such Allowed Administrative Claim have agreed upon in writing, provided, however, that Administrative Claims with respect to liabilities incurred by the Debtor in the ordinary course of business during the Chapter 11 Case shall be paid in the ordinary course of business in accordance with the terms and conditions of any agreement or course of dealing relating thereto (or such other treatment as to which the Debtor and the holder of such Allowed Administrative Claim have agreed) and Professional Claims shall be paid in accordance with section 2.4 of the Plan.

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2.3 Statutory Fees. On or before the Effective Date, all fees due and payable pursuant to 28 U.S.C. § 1930, as determined by the Bankruptcy Court at the Confirmation Hearing, shall be paid in full, in Cash.

2.4 Professional Claims. All Professionals seeking compensation for services rendered or reimbursement of expenses in connection with a Professional Claim, other than professionals retained in the ordinary course of business, shall (i) file, on or before the date that is ninety (90) days after the Effective Date, their respective applications for final allowances of compensation for services rendered and reimbursement of expenses incurred and (ii) receive payment in full, in Cash, of any unpaid portion as soon as practicable after Bankruptcy Court approval thereof. Professionals retained by the Debtor in the ordinary course of business that are not required to submit applications for reimbursement shall be paid in accordance with section 2.1 hereof.

2.5 Priority Tax Claims. Except to the extent that a holder of an Allowed Priority Tax Claim against the Debtor agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall, in full satisfaction, release, and discharge of such Allowed Priority Tax Claim: (i) to the extent such Claim is due and owing on the Effective Date, be paid in full, in Cash, on the Effective Date; (ii) to the extent such Claim is not due and owing on the Effective Date, be paid in full, in Cash, in accordance with the terms of any agreement between the Debtor and such holder, or as may be due and owing under applicable non-bankruptcy law, or in the ordinary course of business; or (iii) be treated on such other terms and conditions as are acceptable to the Debtor and the holder of such Claim.

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ARTICLE 3.

CLASSIFICATION OF CLAIMS AND INTERESTS

A. General. Pursuant to section 1122 of the Bankruptcy Code, set forth below is a designation of the Classes of Claims and Interests in the Debtor. A Claim or Interest is placed in a particular Class only to the extent that such Claim or Interest falls within the description of that Class. A Claim is also placed in a particular Class for purposes of receiving a distribution under the Plan, but only to the extent such Claim is an Allowed Claim or Interest and has not been paid, released, or otherwise settled prior to the Effective Date. Except as otherwise expressly set forth in this Plan, a Claim which is not an Allowed Claim shall not receive any payments, rights or distributions under this Plan. DIP Facility Claims, Administrative Claims, Professional Claims and Priority Tax Claims have not been classified and are treated as set forth in Article 2.

B. Classification. Claims against and Interests in the Debtor are classified for all purposes, including voting, confirmation, and distribution, pursuant to the Plan as follows:

3.1 Class 1: Priority Non-Tax Claims. Class 1 shall consist of all Priority Non-Tax Claims.

3.2 Class 2: Bridge Loan Claims. Class 2 shall consist of all Bridge Loan Claims.

3.3 Class 3: Senior Note Claims. Class 3 shall consist of all Senior Note Claims.

3.4 Class 4: Convertible Note Claims. Class 4 shall consist of all Convertible Note Claims.

3.5 Class 5: Line of Credit Claims. Class 5 shall consist of all Line of Credit Claims.

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3.6 Class 6: General Unsecured Claims. Class 6 shall consist of all General Unsecured Claims.

3.7 Class 7: Interests. Class 7 shall consist of all Interests.

ARTICLE 4.

IDENTIFICATION OF CLASSES IMPAIRED AND NOT IMPAIRED BY THE PLAN

4.1 Voting Classes: Classes of Claims Entitled to Vote.

The following Classes are Impaired by the Plan and holders of Claims in each of these Classes are entitled to vote to accept or reject the Plan:

Class 3 (Senior Note Claims)

Class 4 (Convertible Note Claims)

Class 5 (Line of Credit Claims)

4.2 Unimpaired Classes of Claims Not Entitled to Vote.

The following Classes are not Impaired by the Plan and holders of Claims in this Class are not entitled to vote to accept or reject the Plan:

Class 1 (Priority Non-Tax Claims)

Class 2 (Bridge Loan Claims)

Class 6 (General Unsecured Claims)

Pursuant to section 1126(f) of the Bankruptcy Code, Classes 1, 2, and 6 are deemed to have accepted the Plan and these Classes will not be solicited.

4.3 Impaired Classes of Interests Deemed to Reject the Plan and Not Entitled to Vote. Holders of Interests in Class 7 (Interests) will not receive any distribution nor retain any property under the Plan on account of such Interests and, pursuant to section 1126(g) of the Bankruptcy Code, are conclusively deemed to reject the Plan. Accordingly, the Debtor will not solicit acceptance or rejections of the Plan from holders of Interests in Class 7 and will seek to confirm the Plan notwithstanding the deemed rejection of such Class.

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ARTICLE 5.

TREATMENT OF CLAIMS AND INTERESTS

The Classes of Claims and Interests shall be treated as follows, in full settlement, discharge, release and satisfaction of their Claims against, or Interests in, the Debtor:

5.1 Class 1 (Priority Non-Tax Claims). With respect to each Allowed Priority Non-Tax Claim, on the Effective Date or as soon thereafter as is reasonably practicable, the holder of an Allowed Priority Non-Tax Claim shall receive, (i) Cash equal to the unpaid portion of such Allowed Priority Non-Tax Claim, or (ii) such other treatment as to which the Debtor and the holder of such Allowed Priority Non-Tax Claim have agreed upon in writing.

5.2 Class 2 (Bridge Loan Claims). The Bridge Loan Claims shall be repaid in full (including principal, accrued prepetition and postpetition interest through the date of payment, and all other amounts due under the Bridge Loan Documents) by the Debtor as an initial draw under the DIP Facility, subject to approval of the Bankruptcy Court. If the Bridge Loan Claims are outstanding on the Effective Date, such Claims shall be paid in full (including principal, accrued prepetition and postpetition interest through the date of payment, any adequate protection payments required in connection therewith and all other amounts due under the Bridge Loan Documents) in cash on the Effective Date and upon such payment the Liens granted to the Bridge Lenders pursuant to the Bridge Loan Documents shall terminate and be deemed released.

5.3 Class 3 (Senior Note Claims). Each holder of a Senior Note Claim will receive its pro rata allocation of (i) on the Effective Date (a) Cash in the amount of $2,717,708.76, (b) New Notes with a principal amount equal to (1) 75%

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of the principal amount of the Senior Notes (plus accrued interest through the Effective Date) minus (2) $8,153,126.28, and (c) a number of shares of New Common Stock equal to 10,000,000 multiplied by the quotient of the Senior Note Claims New Common Stock Amount divided by the Total New Common Stock Calculation Amount; (ii) on the date that is four months after the Effective Date, Cash in the amount of $2,717,708.76, together with interest thereon accruing from the Effective Date through the date of payment at the interest rate of 7 percent per annum to be paid in Cash; and (iii) on the date that is eight months after the Effective Date, Cash in the amount of $2,717,708.76, together with interest thereon accruing from the Effective Date through the date of payment at the interest rate of 7 percent per annum to be paid in Cash. The four and eight month Cash payments set forth above in clauses (ii) and (iii) shall have the benefit of the collateral and guarantees provided for in the New Notes Loan Agreement and shall be (x) pari passu with the payments with respect to the Convertible Note Claims set forth in sections 5.4 (ii) and (iii) below, and (y) senior in right of payment to the principal and interest payments under the New Notes Loan Agreement, on terms set forth in the New Notes Loan Agreement.

5.4 Class 4 (Convertible Note Claims). Each holder of a Convertible Note Claim will receive its pro rata allocation of (i) on the Effective Date (a) Cash in the amount of $448,957.91 and (b) a number of shares of New Common Stock equal to 10,000,000 multiplied by the quotient of the Convertible Note Claims New Common Stock Amount divided by the Total New Common Stock Calculation Amount, (ii) on the date that is four months after the Effective Date, Cash in the amount of $448,957.91, together with interest thereon accruing from the Effective Date through

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the date of payment at the interest rate of 7 percent per annum to be paid in Cash; and (iii) on the date that is eight months after the Effective Date, Cash in the amount of $448,957.91, together with interest thereon accruing from the Effective Date through the date of payment at the interest rate of 7 percent per annum to be paid in Cash. The four and eight month Cash payments set forth above in clauses (ii) and (iii) shall have the benefit of the collateral and guarantees provided for in the New Notes Loan Agreement and shall be (x) pari passu with the payments with respect to the Senior Note Claims set forth in sections 5.3(ii) and (iii) above, and (y) senior in right of payment to the principal and interest payments under the New Notes Loan Agreement, on terms set forth in the New Notes Loan Agreement.

5.5 Class 5 (Line of Credit Claims). On the Effective Date, each holder of a Line of Credit Claim will receive its pro rata allocation of a number of shares of New Common Stock equal to 10,000,000 multiplied by the quotient of the Line of Credit Claims New Common Stock Amount divided by the Total New Common Stock Calculation Amount.

5.6 Class 6 (General Unsecured Claims). Except to the extent that a holder of an Allowed General Unsecured Claim agrees to a less favorable treatment or has been paid prior to the Effective Date, each Allowed General Unsecured Claim in Class 6 (General Unsecured Claims) shall be paid in full in Cash on the Effective Date, or, otherwise rendered Unimpaired. Without limiting the generality of the foregoing, if a General Unsecured Claim arises (i) based on liabilities incurred in, or to be paid in, the ordinary course of business or (ii) pursuant to an executory contract or unexpired lease that has not been rejected, the holder of such General Unsecured Claim shall be paid in Cash pursuant to the terms and conditions of the particular transaction and/or agreement giving rise to such General Unsecured Claim. Notwithstanding the provisions of this section 5.6 of the Plan, the Debtor reserves the right to dispute in the Bankruptcy Court, or any other court with jurisdiction, the validity of any General Unsecured Claim at any time prior to the date fixed pursuant to section 8.2 of this Plan. On the Effective Date, any guarantees of the Debtor and Intercompany Claims will be reinstated in accordance with their terms and shall not be discharged, satisfied nor released. After the Effective Date, Intercompany Claims shall be treated in the ordinary course of business or eliminated in the ordinary course of business.

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5.7 Class 7 (Interests). All Interests shall be cancelled and extinguished on the Effective Date and the holders of Interests shall not receive or retain any property on account of such Interests.

ARTICLE 6.

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

6.1 Assumption and Rejection of Contracts and Leases. Except as otherwise provided herein, as of the Effective Date, the Debtor shall be deemed to have assumed each executory contract and unexpired lease to which it is a party, unless such contract or lease (i) was previously assumed or rejected by the Debtor, (ii) previously expired or terminated under its own terms prior to the Effective Date, (iii) is the subject of a motion to reject filed by the Debtor on or before the Confirmation Date or (iv) is identified as being rejected in Schedule 2 to the Plan, as it may be amended or supplemented prior to the Confirmation Hearing. Unless otherwise specified, each executory contract and unexpired lease to be rejected shall include any and all modifications, amendments, supplements, restatements or other agreements made directly or indirectly by any agreement, instrument or other document that in any manner affects such executory contract or unexpired lease, without regard to whether such agreement, instrument or other document is listed on Schedule 2. Nothing in the terms of this Plan shall constitute an admission by any Debtor that a contract or lease is an executory contract or unexpired lease or that any Debtor or its successors and assigns has any liability thereunder. The Confirmation Order shall constitute an order of the Bankruptcy Court pursuant to section 365 of the

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Bankruptcy Code approving all such assumptions and rejections described in Article 6 of the Plan as of the Effective Date.

6.2 Amendments to Schedule 2: Rejected Executory Contracts and Unexpired Leases. Except as provided in section 6.3 below, the Debtor reserves the right, with the consent of the Requisite Consenting Lenders, to amend Schedule 2 to the Plan not later than fourteen (14) days prior to the Confirmation Hearing either to: (i) delete any executory contract or lease listed therein and provide for its assumption; or (ii) add any executory contract or lease to Schedule 2, thus providing for its rejection. The Debtor shall provide notice of any such amendment of such Schedule 2 to (i) the parties to the executory contract or lease affected thereby and (ii) the Requisite Consenting Lenders not later than fourteen (14) days prior to the Confirmation Hearing.

6.3 Cure Payments; Adequate Assurance of Performance. Any monetary defaults under each executory contract and unexpired lease to be assumed under the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, in either of the following ways: (i) by payment of the default amount in Cash, in full on the Effective Date; or (ii) by payment of the default amount on such other terms as may be agreed to by the Debtor and the non-Debtor parties to such executory contract or unexpired lease. In the event of a dispute regarding (i) the amount or timing of any cure payments, (ii) the ability of the Debtor to provide adequate assurance of future performance under the contract or lease to be assumed, or (iii) any other matter pertaining to assumption of the contract or lease to be assumed, an objection must be Filed and served within the same deadline and in the same manner established for the Filing and service of objections to Confirmation of the Plan and the Debtor or the Reorganized Debtor shall pay all required amounts promptly following the later of the entry of a Final Order resolving the

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dispute or the Effective Date; provided, however, notwithstanding any other provision of this Plan, (i) with the written agreement of the counterparty to an executory contract or unexpired lease or (ii) upon written notice to the counterparty, in each case with the consent of the Requisite Consenting Lenders, the Debtor or the Reorganized Debtor may add any executory contract or lease to the list of rejected contracts if the Debtor determines, in its sole discretion, that it is not in its best interests to assume the executory contract or unexpired lease considering the cure amount or any other terms of assumption as determined by the Bankruptcy Court in a Final Order. Failure to timely assert an objection to (i) the amount or timing of any cure payments, (ii) the ability of the Debtor to provide adequate assurance of future performance under the contract or lease to be assumed, or (iii) any other matter pertaining to assumption of the contract or lease to be assumed shall constitute consent to the proposed assumption and cure on the terms and conditions provided herein, including an acknowledgement that the proposed assumption provides adequate assurance of future performance and that any amounts identified for “cure” is the amount necessary to cover any and all outstanding defaults under the executory contract or unexpired lease to be assumed, as well as an acknowledgement and agreement that no other defaults exist under such contract or lease. Notwithstanding any other provision of this Plan, (i) with the written agreement of the counterparty to an executory contract or unexpired lease or (ii) upon written notice to the counterparty, in each case with the consent of the Requisite Consenting Lenders, the Debtor or the Reorganized Debtor may remove any executory contract or lease to the list of rejected contracts and provide for its assumption if the Debtor determines, in its sole discretion, that it is not in its best interests to reject the executory contract or unexpired lease considering the potential rejection damages Claim or any other terms of rejection as determined by the Bankruptcy Court in a Final Order.

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6.4 Rejection Damage Claims. Any Rejection Damage Claim must be Filed by the applicable Rejection Damage Claim Bar Date. Any timely filed Rejection Damage Claim, will be a General Unsecured Claim to the extent it is Allowed. Any Rejection Damage Claim that is not Filed prior to the Rejection Damage Claim Bar Date shall be forever barred from assertion against the Reorganized Debtor, the Debtor, its Estate, or its property or the Holder of such Rejection Damage Claim shall be conclusively deemed to (i) have waived such Rejection Damage Claim and (ii) release the Debtor with respect thereto.

6.5 Indemnification Agreements. Notwithstanding any other provisions of the Plan with regard to executory contracts, from and after the Effective Date, the obligations of the Debtor or Reorganized Debtor to indemnify any Person who is serving or has served as one of its directors, officers or employees as of the Petition Date by reason of such Person’s prior or future service in such a capacity or as a director, officer or employee of any Non-Debtor Affiliates, to the extent provided in the applicable articles or certificates of incorporation, by-laws or similar constituent documents, by statutory law or by written agreement, policies or procedures of or with such Debtor or Non-Debtor Affiliates, will be deemed and treated as of the Effective Date, as executory contracts that are assumed by the Debtor or Reorganized Debtor pursuant to the Plan and section 365 of the Bankruptcy Code. Accordingly, the obligations of the Debtor to defend, indemnify, reimburse, or limit the liability relating to any claims or obligations against its present and former directors, officers or employees who served as directors, officers and employees, respectively, on or after the Petition Date, pursuant to the Debtor’s articles of incorporation or bylaws, applicable state law, or any combination of the foregoing, shall survive confirmation of the Plan, remain unaffected thereby, and not be

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discharged, irrespective of whether indemnification, defense, reimbursement or limitation is owed in connection with an event occurring before, on or after the Petition Date.

ARTICLE 7.

MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN

7.1 Exit Funding. On the Effective Date, the Exit Funder will commit to provide equity financing in accordance with the terms of the Equity Commitment Agreement, substantially in the form annexed as Schedule 4 to this Plan, which will be entered into as of the Effective Date. As set forth in the Equity Commitment Agreement, any funding provided under the Equity Commitment Agreement shall be in the form of an investment in New Preferred Stock.

7.2 Issuance of New Notes. On the Effective Date: (i) the Senior Notes shall be canceled and extinguished, and the holders thereof shall not retain any rights thereunder and such instruments shall evidence no rights; and, (ii) the Reorganized Debtor will issue the New Notes pursuant to the New Notes Loan Agreement.

7.3 Issuance of New Common Stock and New Preferred Stock. On the Effective Date: (i) all authorized or issued Interests shall be canceled and extinguished, and the holders thereof shall not retain any rights thereunder and such instruments shall evidence no rights; and, (ii) the Reorganized Debtor will issue the New Common Stock and the New Preferred Stock. Upon the issuance of the New Common Stock and the New Preferred Stock, each holder of a Claim who accepts delivery of such shares of New Common Stock and New Preferred Stock provided for in this Plan, will be deemed to have consented and agreed to the terms of, and will thereby be deemed to have become a party to, the Stockholders Agreement and the Registration Rights Agreement regardless of whether such party actually executes the Stockholders Agreement or the Registration Rights Agreement. An aggregate of 10,000,000 shares of New Common Stock will be (x) issued on the Effective Date to holders of Senior Note Claims, Convertible Note Claims, and Line of Credit Claims under the Plan and (y) reserved for issuance upon the conversion of the New Preferred Stock issued and outstanding as of the Effective Date (in an amount equal to the Total New Preferred Stock Amount) into New Common Stock. The conversion price for the New Preferred Stock shall be the Total New Common Stock Calculation Amount divided by 10,000,000.

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7.4 No Fractional Shares. No fractional shares of New Common Stock or New Preferred Stock shall be distributed pursuant to the Plan. When any distribution on account of an Allowed Claim pursuant to the Plan would otherwise result in the issuance of a number of shares of New Common Stock or New Preferred Stock that is not a whole number, the actual distribution of shares of New Common Stock and New Preferred Stock shall be rounded as follows: (i) fractions of ½ or greater shall be rounded to the next higher whole number and (ii) fractions of less than ½ shall be rounded to the next lower whole number. The total number of shares of New Common Stock and New Preferred Stock to be distributed pursuant to the Plan shall be adjusted as necessary to account for the rounding provided in this section 7.4.

7.5 Record Date for Distributions. Other than with respect to any publicly held securities, the record date for purposes of making distributions under the Plan on account of Allowed Claims shall be the Effective Date.

7.6 Continuation of Automatic Stay. In furtherance of the implementation of the Plan, except as otherwise provided herein, all injunctions or stays provided for in the Chapter 11 Case pursuant to sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect and apply to all holders of Claims against, or Interests in, the Debtor and the Estate until the Effective Date; provided, however, that nothing herein shall be deemed to extend the scope of any such injunction or stay beyond the provisions of section 362 of the Bankruptcy Code.

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7.7 Post-Confirmation Operations. Following Confirmation and prior to the occurrence of the Effective Date, the then-current officers and directors of the Debtor shall continue in their respective capacities and shall execute such documents and take such other action as is necessary to effectuate the transactions provided for in this Plan. On and after the Effective Date, all directors shall be deemed to have resigned and the New Directors shall serve as the directors of the Reorganized Debtor in accordance with the organizational documents of the Reorganized Debtor. On and after the Effective Date, the management, control and operation of the Reorganized Debtor shall become the responsibility of the New Board of Directors. The New Directors shall continue to serve as the New Board of Directors in accordance with the terms of the New Organization Documents.

7.8 Effectiveness of Securities, Instruments, Agreements and By-laws of the Reorganized Debtor. The New Organizational Documents for the Reorganized Debtor are included in Schedule 5. On the Effective Date, all agreements entered into or documents issued pursuant to this Plan, including, the New Notes, the New Common Stock, the New Preferred Stock and/or any agreement entered into or instrument or document issued in connection with any of the foregoing, as applicable, shall become effective and binding upon the parties thereto in accordance with their respective terms and conditions and shall be deemed to become effective simultaneously. From and after the Effective Date, the Reorganized Debtor, as restructured herein, shall (i) continue in possession, custody and control of all the Debtor’s assets, books, records, rights and privileges, and (ii) be solely responsible for the management of its affairs and the operation of its business, subject only to the jurisdiction of the Bankruptcy Court to enforce the provisions of this Plan.

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7.9 Restructuring of the Reorganized Debtor. On or after the Effective Date, the Reorganized Debtor may merge, consolidate or reorganize and/or combine with any Non-Debtor Affiliates in such manner as the Reorganized Debtor may deem prudent with a view toward minimizing the cost of conducting their respective businesses to the extent permitted under the Reorganized Debtor’s governance documents and debt agreements.

7.10 Corporate Action. On the Effective Date, all matters provided for under the Plan that would otherwise require approval of the stockholders or directors of the Debtor or the Reorganized Debtor or their successors in interest under the Plan, including, the authorization to issue or cause to be issued the New Common Stock and the New Preferred Stock and documents relating thereto, the New Notes and documents relating thereto, the adoption of the New Organization Documents and the election of the New Directors pursuant to the Plan, shall be deemed to have occurred and shall be in full force and effect from and after the Effective Date without any requirement of further action by the stockholders or directors of the Debtor or the Reorganized Debtor. On the Effective Date, the Reorganized Debtor shall file its amended articles of incorporation with the secretary of state of the State of Florida, in accordance with the applicable corporation law of such state.

7.11 Exemption from Securities Laws. The issuance of the New Common Stock, the New Preferred Stock, and the New Notes, and any other securities pursuant to the Plan and any subsequent sales, resales, or transfers, or other distributions of any such securities shall be exempt from any federal or state securities laws registration requirements to the fullest extent permitted by section 1145 of the Bankruptcy Code.

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7.12 Avoidance Actions. Except to the extent released pursuant to Article 12 of this Plan or as otherwise provided herein, effective on and after the Effective Date, all Avoidance Actions and Causes of Action shall be preserved for the benefit of the Reorganized Debtor.

7.13 Post-Effective Date Reporting. As promptly as practicable after the Effective Date, the Reorganized Debtor shall File with the Bankruptcy Court and serve on the United States Trustee the closing report required by the Bankruptcy Rules.

ARTICLE 8.

PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER THE PLAN

8.1 Filing of Proofs of Claim Not Required. Holders of Claims need not file proofs of claim with the Bankruptcy Court. In the event that a Holder of a Claim elects to file a proof of claim with the Bankruptcy Court, it will be deemed to have consented to the exclusive jurisdiction of the Bankruptcy Court for all purposes with respect to the determination, liquidation, allowance or disallowance of such Claim.

8.2 Disputed Claims. If the Debtor disputes any Claim as to which no proof of claim has been filed, such dispute shall be determined, resolved, or adjudicated, as the case may be, in a manner as if the Chapter 11 Case had not been commenced and shall survive the Effective Date as if the Chapter 11 Case had not been commenced, provided, however, that the Reorganized Debtor may elect, at its sole option, to object under section 502 of the Bankruptcy Code to any claim or any proof of claim filed by or on behalf of a holder of a Claim.

8.3 Objections to Claims. Except insofar as a Claim is Allowed under the Plan, the Debtor, the Reorganized Debtor, and any other party in interest shall be entitled to object to Claims. Any objections to Claims shall be served and filed (i) on or before the ninetieth (90th) day following the later of (a) the Effective Date and (b) the date that a proof of Claim is filed or amended or a Claim is otherwise asserted or amended in writing by or on behalf of a holder of such Claim, or (ii) such later date as may be ordered by the Bankruptcy Court.

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8.4 No Distributions Pending Allowance. If an objection to a Claim is filed as set forth in section 8.2, no payment or distribution provided under the Plan shall be made on account of such Claim unless and until such Disputed Claim becomes an Allowed Claim.

8.5 Distributions After Allowance. To the extent that a Disputed Claim ultimately becomes an allowed Claim, distributions (if any) shall be made to the holder of such Allowed Claim in accordance with the provisions of the Plan. As soon as practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim becomes a Final Order, the holder of such Claim shall receive the distribution (if any) to which such holder is entitled under the Plan as of the Effective Date, without any interest to be paid on account of such Claim unless required under applicable bankruptcy law.

ARTICLE 9.

DISTRIBUTIONS

9.1 Delivery of Distributions in General. Subject to Bankruptcy Rule 9010, all distributions to any holder of an Allowed Claim shall be made at the address of such holder as set forth in the Debtor’s books and records, unless the Debtor or the Reorganized Debtor has been notified in writing of a change of address, including by the filing of a proof of Claim by such holder that contains an address for such holder different from the address reflected on the Debtor’s books and records.

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9.2 Undeliverable Distributions. In the event that any distribution to any holder is returned as undeliverable, the Debtor or the Reorganized Debtor shall use reasonable efforts to determine the current address of such holder, but no distribution to such holder shall be made unless and until the Debtor or the Reorganized Debtor has determined the then current address of such holder, at which time such distribution shall be made to such holder without interest, provided, however, that such distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one year from the Effective Date. After such date, all unclaimed property or interest in property shall revert to the Reorganized Debtor and the Claim of any other holder to such property or interest in property shall be discharged and forever barred notwithstanding any applicable federal or state escheat, abandoned or unclaimed property laws to the contrary.

9.3 Distributions After the Effective Date. Distributions made after the Effective Date to holders of Disputed Claims that are not Allowed Claims as of the Effective Date but which later become Allowed Claims shall be deemed to have been made on the Effective Date.

9.4 Cash Payments. Except as otherwise provided in the Plan or the Confirmation Order, (i) Cash payments to be made pursuant to the Plan shall be made by checks drawn on a domestic bank or by wire transfer from a domestic bank, at the option of the Reorganized Debtor and (ii) all Cash required for payments to be made hereunder shall be obtained from the Debtor’s and the Reorganized Debtor’s Cash on hand and the Exit Funding.

9.5 Interest on Claims. Except as otherwise provided herein, postpetition interest shall not accrue or be paid on Claims, and no holder of a Claim shall be entitled to interest accruing on or after the Petition Date on any Claim. Interest shall not accrue or be paid upon any Disputed Claim in respect of the period from the Petition Date to the date a Final Distribution is made thereon if and after such Disputed Claim becomes an Allowed Claim. To the extent that any Allowed Claim entitled to a distribution under the Plan is composed of indebtedness and accrued but unpaid interest thereon, such distribution shall, to the extent permitted by applicable law, be allocated for federal income tax purposes to the principal amount of the Allowed Claim first and then, to the extent the consideration exceeds the principal amount of the Allowed Claim, to the portion of such Allowed Claim representing accrued but unpaid interest.

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9.6 Compliance with Tax Requirements. In connection with the Plan and the distributions made in accordance thereto, to the extent applicable, the Debtor and the Reorganized Debtor shall comply with all tax withholding and reporting requirements, if any, imposed by any Governmental Unit and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. The Reorganized Debtor shall be authorized to take any and all actions that may be necessary or appropriate to comply with such withholding and reporting requirements.

ARTICLE 10.

CONDITIONS PRECEDENT

10.1 Conditions to Confirmation. The following is a condition to entry of the Confirmation Order: the Confirmation Order shall be in form and substance reasonably satisfactory to the Debtor and the Requisite Consenting Lenders.

10.2 Conditions to the Effective Date. The Plan shall not become effective and the Effective Date shall not occur unless and until:

10.2.1 the Bankruptcy Court shall have entered the Confirmation Order, in form and substance reasonably satisfactory to the Debtor and the Requisite Consenting Lenders;

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10.2.2 all documents, instruments and agreements provided for under this Plan or necessary to implement this Plan shall be in form and substance reasonably satisfactory to the Debtor and the Requisite Consenting Lenders and have been executed and delivered by the parties thereto, unless such execution or delivery has been waived by the parties benefited thereby;

10.2.3 the payments required pursuant sections 2.3 and 2.4 of the Plan have been paid in full or have been reserved;

10.2.4 the Exit Funding shall be made available to the Reorganized Debtor pursuant to the terms of the Equity Commitment Agreement;

10.2.5 the Confirmation Order shall be in full force and effect and no stay thereof shall be in effect.

10.3 Waiver of Conditions Precedent. Each of the conditions precedent in sections 10.1 and 10.2 of the Plan may be waived, in whole or in part, by the Debtor with the consent of the Requisite Consenting Lenders, without notice or order of the Bankruptcy Court.

10.4 Termination of Plan for Failure To Become Effective. If the Effective Date shall not have occurred on or prior to the date that is sixty (60) days after the Confirmation Date, then this Plan shall terminate and be of no further force or effect unless the provisions of this section 10.4 are waived in writing by the Debtor and the Requisite Consenting Lenders; provided, however, that this section 10.4 shall not modify or supersede the terms of the DIP Facility or any Event of Default thereunder.

10.5 Notice of Effective Date. On the Effective Date, or as soon thereafter as is reasonably practicable, the Debtor shall file with the Bankruptcy Court “Notice of Effective Date” in a form reasonably acceptable to the Debtor in its sole discretion, which notice shall constitute appropriate and adequate notice that this Plan has become effective. A courtesy copy of the Notice of Effective Date may, but is not required to, be sent by first class mail, postage prepaid (or at the Company’s option, by courier or facsimile) to those Persons who have filed with the Bankruptcy Court requests for notices pursuant to Bankruptcy Rule 2002.

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ARTICLE 11.

EFFECT OF CONFIRMATION

11.1 Entry of Confirmation Order. Entry of a Confirmation Order shall mean that any modifications or amendments to the Plan since the solicitation thereof are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or resolicitation under Bankruptcy Rule 3019.

11.2 Binding Effect. Except as otherwise provided in section 1141(d) of the Bankruptcy Code, and subject to the occurrence of the Effective Date, on and after the Confirmation Date, the provisions of this Plan shall bind any holder of a Claim against or Interest in the Debtor and its successors and assigns, whether or not the Claim or Interest of such holder is Impaired under this Plan and whether or not such holder has accepted the Plan.

11.3 Exculpation. Except as otherwise specifically provided in this Plan, none of the Exculpated Parties shall have or incur, and are hereby released from, any obligation, Cause of Action or liability to one another or to any Creditor, holder of an Interest or any other party in interest, for any act or omission in connection with, relating to, or arising out of, the Chapter 11 Case, the negotiation or execution of the Plan Support Agreement, the negotiation and pursuit of confirmation of this Plan, the consummation of this Plan or any contract, instrument, release or other agreement or document created in connection with this Plan, or the administration of the Estate or the property to be distributed under this Plan, except for their gross negligence or willful misconduct as determined by a Final Order of a court of competent jurisdiction, and in all respects shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities (if any) under this Plan.

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11.4 Discharge of Debtor. Except to the extent otherwise provided in the Plan, the treatment of all Claims against or Interests in the Debtor under the Plan shall be in exchange for and in complete satisfaction, discharge and release of, all Claims against and Interests in the Debtor of any nature whatsoever, known or unknown, including any interest accrued or expenses incurred thereon from and after the Petition Date, or against its Estate or properties or interests in property. Except as otherwise provided in the Plan, upon the Effective Date, all Claims against and Interests in the Debtor shall be satisfied, discharged and released in full in exchange for the consideration provided under the Plan. Except as otherwise provided in the Plan, all entities shall be precluded from asserting against the Debtor, the Reorganized Debtor, or their respective properties or interests in property, any other Claims or Interests based upon any act or omission, transaction or other activity of any kind or nature that occurred prior to the Effective Date.

11.5 Waiver of Avoidance Actions. Notwithstanding any other provision of the Plan, effective as of the Effective Date, the Debtor shall be deemed to have waived the right to prosecute, and to have settled and released for fair value, any avoidance or recovery actions under sections 545, 547, 548, 549, 550, 551, and 553 of the Bankruptcy Code or other applicable law that belong to the Debtor as against the Plan Support Parties.

11.6 Vesting of Assets. The Debtor, as the Reorganized Debtor, shall continue to exist on and after the Effective Date as a separate legal entity with all of the powers available to such legal entity under applicable law, without prejudice to any right to alter or terminate such existence (whether by merger or otherwise) in accordance with such applicable law. Except as otherwise provided in the Plan, on the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all property of the Debtor’s estate shall vest in the Reorganized Debtor free and clear of all Claims, Liens, encumbrances, and charges, and other interests. On and after the Effective Date, the Reorganized Debtor may operate its businesses and may use, acquire, and dispose of property free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules in all respects as if there were no pending case under any chapter or provision of the Bankruptcy Code.

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11.7 Citibank Guaranty Not Affected. For the avoidance of doubt, and notwithstanding anything to the contrary in the Plan, that certain Guaranty of All Liability, dated as of April 13, 2011, issued by the Debtor to Citibank, N.A. (i) is unimpaired by Confirmation, (ii) is not discharged by any provision of the Plan, (iii) is reinstated and (iv) shall remain in full force and effect on and after the Effective Date in accordance with its terms as if the Chapter 11 Case did not occur.

ARTICLE 12.

COMPROMISE, GLOBAL SETTLEMENT,

INJUNCTION AND RELATED PROVISIONS

12.1 Compromise and Settlement. Notwithstanding anything to the contrary contained in this Plan or the Confirmation Order, the allowance, classification and treatment of all Allowed Claims, and their respective distributions and treatments hereunder, takes into account and conforms to the relative priority and rights of the Claims and the Interests in each Class in connection with any contractual, legal and equitable subordination rights relating thereto whether arising under general principles of equitable subordination, section 510 of the Bankruptcy Code, or otherwise to the extent such subordination is enforceable under applicable law. As of the Effective Date, any and all such rights described in the preceding sentence are settled, compromised, discharged and released pursuant hereto. The Confirmation Order will constitute the Bankruptcy Court’s finding and determination that the settlements reflected in the Plan are (i) in the best interests of the Debtor, its Estate and all holders of Claims, (ii) fair, equitable and reasonable, (iii) made in good faith, and (iv) approved by the Bankruptcy Court pursuant to Bankruptcy Rule 9019. The Confirmation Order shall approve the releases by all Entities of all such contractual, legal and equitable subordination rights or Causes of Action that are satisfied, compromised and settled pursuant hereto. In accordance with the provisions of this Plan, and pursuant to Bankruptcy Rule 9019, without any further notice to or action, order or approval of the Bankruptcy Court, after the Effective Date the Reorganized Debtor may, in its sole and absolute discretion and with the consent of the Requisite Consenting Lenders, compromise and settle Claims against the Debtor.

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12.2 Satisfaction of Claims and Termination of Interests. Pursuant to section 1141(d) of the Bankruptcy Code, and except as otherwise specifically provided in the Plan or in any contract, instrument, or other agreement or document created pursuant to the Plan, the distributions, rights, and treatments that are provided in the Plan are in complete discharge, settlement, satisfaction and release, effective as of the Effective Date, of Claims (excluding Intercompany Claims), Interests and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Interests from and after the Petition Date, whether known or unknown, against, liabilities of, Liens on, obligations of, rights against, and Interests in, the Debtor or any of its assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims and Interests. The Confirmation Order shall be a judicial determination of the discharge of all Claims and Interests subject to the Effective Date occurring.

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12.3 Releases by the Debtor. Pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, the Plan Support Parties and their respective Affiliates, members, officers, directors, shareholders, employees, representatives, advisors, attorneys, financial advisors, investment bankers and agents are each deemed released and discharged by the Debtor, the Reorganized Debtor and the Estate from any and all Claims, obligations, rights, suits, damages, Causes of Action, remedies and liabilities whatsoever, whether for tort, fraud, contract, violations of federal or state securities laws, or otherwise, including any derivative Claims asserted or that could possibly have been asserted on behalf of the Debtor, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, that the Debtor or the Reorganized Debtor would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtor or its Non-Debtor Affiliates, the Chapter 11 Case, the purchase, sale, or rescission of the purchase or sale of any security, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Plan Support Party, the restructuring of Claims and Interests prior to or in the Chapter 11 Case, the negotiation, formulation, or preparation of this Plan and related Disclosure Statement, or related agreements, instruments, or other documents, upon any other act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date of the Plan. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the provisions of this provision of the Plan and further, shall constitute the Bankruptcy Court’s finding that the provisions hereof are: (i) in exchange for the good and valuable consideration provided by the Plan Support Parties; (ii) a good faith settlement and compromise of the Claims released; (iii) in the best interests of the Debtor and all holders of Claims and Interests; (iv) fair, equitable and reasonable; (v) given and made after due notice and opportunity for hearing; and (vi) a bar to any of the Debtor, the Reorganized Debtor or their successors asserting any claim or Claim or Cause of Action against any of the Plan Support Parties. Notwithstanding anything to the contrary in the foregoing, the release set forth above does not release any post-Effective Date obligations of any party under the Plan or any document, instrument, or agreement executed to implement the Plan.

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12.4 Mutual Releases by the Plan Support Parties. Each Plan Support Party, on behalf of itself and its officers, directors, employees, representatives, advisors, attorneys, financial advisors, investment bankers, and agents, releases and discharges as of the Effective Date, each other Plan Support Party and their respective officers, directors, employees, representatives, advisors, attorneys, financial advisors, investment bankers, agents and affiliates, from any and all Claims, obligations, rights, suits, damages, Causes of Action, remedies and liabilities whatsoever, whether for tort, fraud, contract, violations of federal or state securities laws, or otherwise, including any derivative Claims asserted or that could possibly have been asserted on behalf of the releasing party against the released party, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, that the releasing party would have been legally entitled to assert in its own right or on behalf of another Person, based on or relating to, or in any manner arising from, in whole or in part, the Debtor or its direct or indirect subsidiaries, the Chapter 11 Case, the business or contractual arrangements between the Debtor and any other Plan Support Party, the negotiation, formulation, or preparation of the Plan Support Agreement, the Plan and the Disclosure Statement, or related agreements, instruments, or other documents, and based upon or relating to, in each case, an act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date; provided, however, that the release described in this section 12.4 shall not apply to the Plan or any related documents or the ability of any party to enforce any rights under the Plan or any related documents.

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12.5 Injunctions. Except as otherwise specifically provided in the Plan or the Confirmation Order, all Entities who have held, hold or may hold Claims, rights, Causes of Action, liabilities or any Interests based upon any act or omission, transaction or other activity of any kind or nature related to the Debtor that occurred prior to the Effective Date, other than as expressly provided in this Plan or the Confirmation Order, regardless of the filing, lack of filing, allowance or disallowance of such a Claim or Interest and regardless of whether such Entity has voted to accept the Plan and any successors, assigns or representatives of such Entities shall be precluded and permanently enjoined on and after the Effective Date from (i) the commencement or continuation in any manner of any claim, action or other proceeding of any kind with respect to any Claim, Interest or any other right or claim against the Debtor, which they possessed or may possess prior to the Effective Date, (ii) the enforcement, attachment, collection or recovery by any manner or means of any judgment, award, decree or order with respect to any Claim, Interest or any other right or claim against the Debtor, which such Entities possessed or may possess prior to the Effective Date, (iii) the creation, perfection or enforcement of any encumbrance of any kind with respect to any Claim, Interest or any other right or claim against the Debtor, or any of its assets, which they possessed or may posses, (iv) the assertion of any Claim that is released under this Plan, and (v) asserting any right of setoff, subrogation or recoupment of any kind against any obligation due from the Reorganized Debtor, or against the property or interests in property of the Reorganized Debtor with respect to any Claim.

ARTICLE 13.

RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain jurisdiction over the Chapter 11 Case after the Effective Date to the fullest extent legally permissible, including jurisdiction to, among other things:

(a) allow, disallow, determine, liquidate, classify, estimate or establish the priority or secured or unsecured status of any Claim or Interest, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the allowance or priority of all Claims and Interests;

(b) hear and determine any and all causes of action by the Debtor against any Person and rights of the Debtor that arose before or after the Petition Date, including any Avoidance Action that is commenced on or prior to the Effective Date;

(d) resolve any matters relating to the assumption or rejection of any executory contract or unexpired lease to which any Debtor is a party or with respect to which any of the Debtor may be liable, including the determination of whether such contract is executory or such lease is unexpired for the purposes of section 365 of the Bankruptcy Code, and hear, determine and, if necessary, liquidate any Claims arising therefrom;

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(e) ensure that distributions to holders of Allowed Claims are accomplished pursuant to the provisions of the Plan;

(f) decide or resolve any motions, adversary proceedings, contested or litigated matters and any other matters and grant or deny any applications involving any Debtor that may be pending in the Chapter 11 Case on the Effective Date;

(g) hear and determine matters concerning state, local or federal taxes in accordance with sections 346, 505 or 1146 of the Bankruptcy Code;

(h) enter such orders as may be necessary or appropriate to implement or consummate the provisions of the DIP Credit Agreement, the Plan, the DIP Facility Orders and the Confirmation Order;

(i) hear and determine any matters concerning the enforcement of the provisions of Article 11 and 12 of this Plan and any other exculpations, limitations of liability or injunctions contemplated by this Plan;

(j) resolve any cases, controversies, suits or disputes that may arise in connection with the consummation, interpretation or enforcement of the DIP Credit Agreement, the Plan, the DIP Facility Orders or the Confirmation Order;

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(k) permit the Debtor, to the extent authorized pursuant to section 1127 of the Bankruptcy Code, to modify the Plan or any agreement or document created in connection with the Plan, or remedy any defect or omission or reconcile any inconsistency in the Plan or any agreement or document created in connection with the Plan;

(l) issue injunctions, enter and implement other orders or take such other actions as may be necessary or appropriate to restrain interference by any entity with consummation, implementation or enforcement of the DIP Credit Agreement, the Plan, the DIP Facility Orders or the Confirmation Order;

(m) enforce any injunctions entered in connection with or relating to the Plan or the Confirmation Order;

(n) enter and enforce such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked or vacated, or distributions pursuant to the Plan are enjoined or stayed;

(o) determine any other matters that may arise in connection with or relating to the Plan or any agreement entered into pursuant to the Plan or the Confirmation Order;

(p) enter any orders in aid of prior orders of the Bankruptcy Court;

(q) to hear any other matter not inconsistent with the Bankruptcy Code; and

(r) enter a final decree closing the Chapter 11 Case.

ARTICLE 14.

MISCELLANEOUS PROVISIONS

14.1 Modification of the Plan. Subject to the restrictions on Plan modifications set forth in section 1127 of the Bankruptcy Code and subject to the consent of the Requisite Consenting Lenders, the Debtor reserves the right to alter, amend, abandon, revoke or withdraw the Plan prior to the Confirmation Date and to file subsequent plans of reorganization. If the Debtor withdraws the Plan, or if Confirmation or consummation does not occur, then: (i) the Plan shall be null and void in all respects; (ii) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain of any Claim or Interest or Class of Claims or Interests), assumption or rejection of executory contracts or unexpired leases effected under the Plan and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (iii) nothing contained in the Plan shall: (a) constitute a waiver or release of any Claims or Interests; (b) prejudice in any manner the rights of the Debtor or any other Entity; or (c) constitute an admission.

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14.2 Release of the Liens of the Bridge Lenders. Upon satisfaction of the Bridge Lien Claims pursuant to section 5.2 of the Plan, the Debtor or the Reorganized Debtor, as applicable, may take such action and file such documents, including UCC termination statements, as may be necessary or appropriate to evidence the termination of the Liens granted to the Bridge Lenders pursuant to the Bridge Loan Documents.

14.3 Filing of Additional Documents. The Debtor or the Reorganized Debtor, as applicable, with the reasonable consent of the Requisite Consenting Lenders, may file agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of this Plan.

14.4 No Admissions. If Confirmation or the Effective Date does not occur, nothing contained in this Plan or the related Disclosure Statement shall be deemed as an admission by the Debtor with respect to any matter set forth herein or therein including, liability on any Claim or the propriety of any Claims classification.

14.5 Severability of Plan Provisions. If prior to Confirmation any term or provision of the Plan that does not govern the treatment of Claims or Interests is held by the Bankruptcy Court to be invalid, void or unenforceable, at the request of the Debtor and subject to the consent of the Requisite Consenting Lenders, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void or unenforceable and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of the Plan shall remain in full force and effect and shall in no way be affected, Impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms.

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14.6 Successors and Assigns. The rights, benefits and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or assign of such Entity.

14.7 Exemption from Certain Transfer Taxes. Pursuant to section 1146(a) of the Bankruptcy Code, (i) the issuance, transfer, or exchange of notes or equity securities, (ii) the creation of any mortgage, deed of trust, lien, pledge, or other security interest, (iii) the making or assignment of or surrender of any lease or sublease, or (iv) the making of or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with the Plan, and any merger agreements, agreements of restructuring, disposition, liquidation or dissolution, any deeds, bills of sale, transfers of tangible property, or assignments executed in connection with any disposition of assets contemplated by the Plan, shall not be subject to any stamp, real estate transfer, mortgage recording, sales, use or other similar tax or similar lien recording fees.

14.8 Preservation of Rights of Setoffs. The Debtor, may, but shall not be required to, set off against any Claim and the payments or other distributions to be made pursuant to this Plan in respect of such Claim, claims of any nature whatsoever that the Debtor may have against the holder of such Claims; but neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtor of any such claim that the Debtor may have against such holder; provided, however, that the Debtor shall not set off any obligations or claims arising under the DIP Credit Agreement.

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14.9 Defenses with Respect to Unimpaired Claims. Except as otherwise provided in this Plan, nothing shall affect the rights and legal and equitable defenses of the Debtor with respect to any Unimpaired Claim, including all rights in respect of legal and equitable defenses to setoffs or recoupments against Unimpaired Claims.

14.10 No Injunctive Relief. Except as otherwise provided in the Plan or Confirmation Order, no Claim or Interest shall under any circumstances be entitled to specific performance or other injunctive, equitable, or other prospective relief.

14.11 Saturday, Sunday or Legal Holiday. If any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date.

14.12 Entire Agreement. This Plan, together with the related agreements and schedules, set forth the entire agreement and undertaking relating to the subject matter hereof and supersede all prior discussions and documents. The Debtor’s Estate shall not be bound by any terms, conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof, other than as expressly provided for herein and in the related agreements and schedules.

14.13 Notices. Any notice required or permitted to be provided under this Plan shall be in writing and served by either (i) certified mail, return receipt requested, postage prepaid, (ii) hand delivery, or (iii) reputable overnight delivery service, freight prepaid, to be addressed as follows:

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1.	Counsel for the Debtor:
	Reed Smith llp
	599 Lexington Avenue
	22nd Floor
	New York, NY 10022
	Attention: Michael J. Venditto
	Telephone: (212) 521 5400
	Facsimile: (212) 521 5450
2.	Counsel for Goldman Sachs Palmetto State Credit Fund, L.P.
	and Liberty Harbor Special Investments, LLC:
	Weil, Gotshal & Manges llp
	767 Fifth Avenue
	New York, NY 10153
	Attention: Gary Holtzer
	Ronit Berkovich
	Telephone: (212) 310 8000
	Facsimile: (212) 310 8007
3.	Counsel for Bzinfin, S.A.:
	Greenberg Traurig, llp
	200 Park Avenue
	New York, NY 10166
	Attention: John Bae
	Telephone: (212) 801 9200
	Facsimile: (212) 801 6400
4.	Whitebox Advisors
	3033 Excelsior Boulevard
	Minneapolis, MN 55416
	Attention: Dale Willenbring
	Dan Philp
	Telephone: (612) 253-6068/612-253-6084
	Facsimile: (612) 253-6001
5.	ITOCHU Corporation
	TOKVU Section
	5-1, Kita-Aoyama 2-chome, Minato-ku
	Tokyo 107-8077, Japan
	Attention: Hiroaki Murase
	Kunihiro Kawakita
	Telephone: +81-3-3497-2659
	Facsimile: +81-3-3497-4160
	Email: hiro.murase@itochu.co.jp
	kawakita-k@itochu.co.jp

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14.14 Closing of Chapter 11 Case. The Reorganized Debtor may seek the entry of a Final Decree at any time after this Plan has been substantially consummated provided that all required fees due under 28 U.S.C. § 1930 have been paid.

14.15 Waiver or Estoppel. Each holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtor or any other Entity, if such agreement was not disclosed in the Plan, the Disclosure Statement, or papers filed with the Bankruptcy Court prior to the Confirmation Date.

14.16 Conflicts. Except as set forth in the Plan, to the extent that any provision of the Disclosure Statement, or any orders (other than the Confirmation Order) referenced in the Plan, the Plan Supplement or any exhibits, schedules, or amendments to any of the foregoing, conflict with or are in any way inconsistent with any provision of the Plan, the Plan shall govern and control. To the extent that any provision of this Plan conflicts with, or is any manner inconsistent with, the provisions of the Confirmation Order, the Confirmation Order shall govern and control.

14.17 Section 1125(e) of the Bankruptcy Code. As of the Confirmation Date, the Debtor shall be deemed to have solicited acceptances of the Plan in good faith and in compliance with the applicable provisions of the Bankruptcy Code. The Debtor, the Plan Support Parties, and their respective successors, predecessors, control persons, members, affiliates, agents, directors, officers, employees, financial advisors, accountants, attorneys, and other professionals have participated in good faith and in compliance with the applicable provisions of the Bankruptcy Code in the offer and issuance of the securities under the Plan. Accordingly, such entities and individuals shall not be liable at any time for the violation of any applicable law, rule or regulation governing the solicitation of acceptances or rejections of the Plan or the offer and issuance of the securities under the Plan.

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14.18 Expedited Tax Determination. The Reorganized Debtor may request an expedited determination of taxes under 505(b) of the Bankruptcy Code for all returns filed for, or on behalf of, the Debtor for any and all taxable periods ending after the Petition Date through, and including, the Effective Date.

14.19 Dissolution of any Statutory Committees and Cessation of Fee and Expense Payment. To the extent that one or more official committees are appointed in the Chapter 11 Case, such committees shall be dissolved on the Effective Date and the retention or employment of any advisors or professionals retained by the committees, including, without limitation, accountants, attorneys and financial advisors will terminate. After the Effective Date, the Reorganized Date Debtor shall no longer be responsible for paying any fees and expenses incurred by the members of any advisors or professionals retained by any such committees.

14.20 Fees and Expenses of Plan Support Parties. On the Effective Date, the Debtor shall pay all fees and expenses of the Plan Support Parties in accordance with the terms of the Plan Support Agreement.

Dated: January 26, 2012	Respectfully submitted,
	Ener1, Inc., a Florida corporation By: s/ Alex Sorokin

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Schedule 2
to
Prepackaged Plan of Reorganization Under Chapter 11 of the Bankruptcy Code

Executory Contracts and Unexpired Leases to be Rejected

Name and Mailing Address of Other Parties to Lease or Contract

Description of Contract or Lease and Nature of Debtor’s Interest

SPUSV5 1540 Broadway, LLC

515 South Flower Street, 31^st Floor

Los Angeles, CA 90071

Lease of Non-Residential Real Property, as amended by the First Amendment to Lease dated as of January 10, 2011, for premises at:

Suite 40D
1540 Broadway
New York, NY

Regus Management Group, LLC

15305 Dallas Parkway, Suite 400

Addison, TX 75001

Lease of Non-Residential Real Property,
dated August 23, 2011 for premises at:
Suite 300
1451 West Cypress Creek Road
Fort Lauderdale, FL

Credit Suisse Securities (USA) LLC

c/o Ted Michaels
Eleven Madison Avenue
New York, NY 10010-3629

Engagement Letter, dated March 23, 2010 for advisory services on proposed Private Placements

Relational, LLC

3701 Algonquin Road Suite 600

Rolling Meadows, IL 60008

Lease of Equipment as amended by Amendment No. 1 to the Master Lease Agreement dated as of July 14, 2008, for equipment set forth on Exhibit A, and as amended by Schedule No. 001, Schedule

No. 002, Schedule No. 003, and Schedule

No. 004 dated September 26, 2008, Schedule No. 005 and Schedule No. 006 dated October 24, 2008, Schedule No. 007 dated May 19, 2009, and Schedule No. 008, Schedule

No. 009, and Schedule No. 010

dated December 8, 2008.

EXHIBIT B

TRANSACTION DOCUMENTS

Annex 1: Stockholders Agreement

Annex 2: Registration Rights Agreement

Annex 3: Amended and Restated Certificate of Incorporation

Annex 4: Amended and Restated Bylaws

Annex 5: Loan Agreement

Annex 6: Equity Commitment Agreement

ANNEX 1

STOCKHOLDERS AGREEMENT

Stockholders Agreement (the “Agreement”), dated as of [•], 2012, by and among Ener1, Inc., a Florida corporation (the “Company”), Bzinfin S.A., a British Virgin Islands company (“Bzinfin”), and the other parties listed on Exhibit A hereto (collectively with Bzinfin, the “Stockholders” and each individually, a “Stockholder”), and any Person who after the Effective Date becomes a Stockholder of the Company as provided herein. The Company and the Stockholders are each a “party” and collectively are “parties” to this Agreement.

INTRODUCTION

WHEREAS, on January [•], 2012, the Company filed a petition in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) seeking relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. Section 101-1130 in In re Ener1, Inc., Case No. [•] (the “Proceeding”);

WHEREAS, pursuant to the Company’s Plan of Reorganization filed in the Proceeding (the “Plan”) and confirmed by the Bankruptcy Court by its order dated [•], 2012 (the “Effective Date”), the Company has agreed as of the Effective Date to, among other things, issue shares of (a) New Common Stock (as defined in the Plan) and (b) New Preferred Stock (as defined in the Plan) to certain creditors of the Company;

WHEREAS, pursuant to the Plan, the Company is authorized to enter into this Agreement to set forth certain terms and conditions of ownership of the New Common Stock and New Preferred Stock and the rights of holders thereof; and

WHEREAS, the parties desire that this Agreement be executed to provide for certain rights, obligations and limitations set forth herein.

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

ARTICLE I

Definitions

Section 1.01. Definitions. As used in this Agreement:

“8.25% Noteholders” shall mean each of Liberty Harbor Special Investments, LLC, Goldman Sachs Palmetto State Credit Fund, L.P., Whitebox Credit Arbitrage Partners, L.P., Pandora Select Partners, L.P., Whitebox Concentrated Convertible Arbitrage Partners, L.P., Whitebox Multi Strategy Partners, L.P. and Whitebox Special Opportunities Fund LP, Series B.

“Affiliate” of a Person shall mean any Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such other Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. For purposes of this definition, a Person shall be deemed to be “controlled by” a Person if such latter Person possesses, directly or indirectly, power to vote 30% or more of the total number of votes of the securities having ordinary voting power for the election of directors of such former Person.

“Agreement” shall have the meaning set forth in the Preamble.

“Articles of Incorporation” means the Amended and Restated Articles of Incorporation adopted under and filed pursuant to the Plan with the Department of State of the State of Florida on the Effective Date.

“Bankruptcy Court” shall have the meaning set forth in the Recitals.

“Beneficial Ownership” means, with respect to a specified Person, the ownership of Stock as determined in accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended, as such Rule is in effect from time to time. “Beneficially Own” and “Beneficial Owner” shall each also have the correlative meaning.

“Board” shall mean the Board of Directors of the Company.

“Business Day” shall mean any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in New York, New York.

“Bzinfin” shall have the meaning set forth in the Preamble.

“Bzinfin Transferor” shall have the meaning set forth in Section 5.01.

“Call Price” shall mean $9.08 per share.1

“Call Shares” shall have the meaning set forth in Section 9.01.

“Change of Control” shall mean (a) the consummation of a merger or consolidation of the Company with or into another entity (except a merger or consolidation in which the holders of the Company’s outstanding Stock immediately prior to such merger or consolidation continue to Beneficially Own immediately thereafter at least 50% of the voting power of Stock or the capital stock, or equivalent equity interests, of the surviving or acquiring entity (or its parent entity if the surviving entity is wholly owned by the parent entity), (b) a sale, lease or other disposition of all or substantially all of the assets of the Company and its subsidiaries on a consolidated basis (including securities of the Company’s directly or indirectly owned subsidiaries), other than a sale, lease or other disposition to an Affiliate of the Company or to Bzinfin or its Affiliates, (c) such time that Bzinfin, together with its Affiliates, including any Permitted Transferee as a result of a Permitted Transfer under clauses (b), (c) or (e) of the definition thereof, cease to possess the power to elect a majority of the members of the Board or (d) such time that Bzinfin and its Affiliates, including any Permitted Transferee as a result of a Permitted Transfer under clauses (b), (c) or (e) of the definition thereof, shall cease to Beneficially Own, in the aggregate, at least 35% of the outstanding shares of Stock on an as converted basis into New Common Stock.

1 Amount (on a per share basis) equal to 150% of the cost basis of the New Common Stock (i.e., 25% of the principal amount of the 8.25% Notes and accrued interest thereon through the date of the Lockup Agreement converted into New Common Stock).

“Change of Control Termination Event” means the occurrence of a Change of Control of the type specified in either clauses (a) or (b) of the definition of “Change of Control.”

“Chosen Courts” shall have the meaning set forth in Section 13.06.

“Company” shall have the meaning set forth in the Preamble.

“Disabling Condition” shall have the meaning set forth in Section 8.02(a).

“Disabling Notice” shall have the meaning set forth in Section 8.02(b).

“Drag Along Notice” shall have the meaning set forth in Section 6.02.

“Drag Along Sale” shall have the meaning set forth in Section 6.01.

“Drag Along Seller” shall have the meaning set forth in Section 6.01.

“Drag Along Shares” shall have the meaning set forth in Section 6.01.

“Drag Along Stockholder” shall have the meaning set forth in Section 6.01.

“Drag Along Transferee” shall have the meaning set forth in Section 6.01.

“Effective Date” shall mean the effective date of the Plan.

“Equity Commitment Agreement” shall have the meaning set forth in the Plan.

“Exempt Issuances” shall mean: (a) the issuance of Stock and Stock Equivalents to employees, officers or directors of the Company or its subsidiaries under compensation plans and agreements approved in good faith by the Board representing, in the aggregate, up to 8% of the total number of shares of Stock outstanding as of the Effective Date (on a fully diluted basis); provided that, in the case of Stock Equivalents to purchase New Common Stock, the exercise price per share of New Common Stock shall not be less than the Fair Market Value per share of New Common Stock on the date of issuance of such Stock Equivalents; (b) the issuance of Stock upon the conversion or exercise of Stock Equivalents as to which the Company complied with the provisions of ARTICLE III; (c) shares of New Common Stock or Stock Equivalents for New Common Stock issued or issuable to banks, equipment lessors or other financial institutions pursuant to a debt financing or commercial leasing transaction, provided that all of the foregoing shall have been approved in good faith by the Board; (d) shares of New Common Stock or Stock Equivalents for New Common Stock issued or issuable to strategic partners of the Company approved in good faith by the Board, provided that in the case of Stock Equivalents for New Common Stock, the exercise price per share of New Common Stock shall not be less than the Fair Market Value per share of New Common Stock on the date of issuance of such Stock; (e) the issuance of New Common Stock upon the conversion of the New Preferred Stock; (f) the issuance of any Stock or Stock Equivalents in connection with an arms-length acquisition by the Company (either directly or indirectly through a subsidiary thereof) of another entity or assets constituting a business approved in good faith by the Board; or (g) issuances of Stock under the Equity Commitment Agreement and as otherwise expressly provided for in the Plan.

“Exercise Notice” shall have the meaning set forth in Section 7.02.

“Fair Market Value” shall have the meaning set forth in the Articles of Incorporation.

“First Refusal Right” shall have the meaning set forth in Section 7.02.

“GAAP” shall mean generally accepted accounting principles in the United States as in effect from time to time.

“GSAM Investors” shall mean Liberty Harbor Special Investments, LLC and Goldman Sachs Palmetto State Credit Fund, L.P., together with their Permitted Transferees.

“Included Stockholder” shall have the meaning set forth in Section 5.02.

“Independent Financial Advisor” shall have the meaning set forth in the Articles of Incorporation.

“ITC” shall mean ITOCHU Corporation.

“ITC Director” has the meaning set forth in Section 2.02.

“Legacy Put Shares” shall have the meaning set forth in Section 12.01(c).

“Majority Holders” shall mean, collectively, (a) Bzinfin and its Affiliates so long as either (i) Bzinfin, together with its Affiliates, including any Permitted Transferee as a result of a Permitted Transfer under clauses (b), (c) or (e) of the definition thereof, possess the power to elect a majority of the members of the Board or (ii) Bzinfin and its Affiliates Beneficially Own, in the aggregate, at least 30% of the outstanding shares of Stock, on an as converted basis into New Common Stock and (b) holders of at least 50% of the then outstanding shares of Stock Beneficially Owned by all holders other than Bzinfin and its Affiliates, on an as converted basis into New Common Stock; provided, however, that if clause (a) is deemed inapplicable by reason of the failure of the conditions specified in both item (i) and (ii) thereof, then “Majority Holders” shall mean the holders of at least 50% of the then outstanding shares of Stock Beneficially Owned by all holders, including Bzinfin and its Affiliates, on an as converted basis into New Common Stock.

“Major Stockholder” shall have the meaning set forth in Section 10.01.

“New Common Stock” shall have the meaning set forth in the Plan.

“New Preferred Stock” shall have the meaning set forth in the Plan.

“Observer” shall have the meaning set forth in Section 2.01.

“Offer” shall have the meaning set forth in Section 3.01.

“Offered Securities” shall have the meaning set forth in Section 3.01.

“Permitted Transfer” shall mean any of the following:

(a) any Transfer of Stock or Stock Equivalents by any Stockholder made (i) pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations or other form of entity, (ii) pursuant to a conversion, recapitalization, or the like involving the Company, (iii) pursuant to a Transfer expressly permitted by the terms of this Agreement, (iv) pursuant to the winding up and dissolution of the Company, (v) at, and pursuant to, the Qualified IPO or (vi) pursuant to the exercise of registration rights;

(b) any Transfer of Stock or Stock Equivalents by any Stockholder to another Stockholder;

(c) any Transfer of Stock or Stock Equivalents by any Stockholder if such Stockholder is a corporation, partnership, limited liability company or other entity and such Transfer is effected without direct or indirect consideration to (i) a stockholder of such corporation, a partner of such partnership, a member of such limited liability company or owner of such other entity, (ii) an Affiliate of such corporation, partnership, limited liability company or other entity (including, with respect to any GSAM Investors, any investment funds managed by Goldman Sachs Asset Management or any Affiliate thereof), (iii) a retired partner of such partnership or retired member of such limited liability company who retires after the date of this Agreement or (iv) the estate of any such partner, member, stockholder or owner;

(d) with respect to any Stockholder that is a natural person, any Transfer of Stock or Stock Equivalents by such Stockholder to one or more of such Stockholder’s spouse, child, grandchild, father, mother, brother, sister, stepparent, stepchild, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law (collectively, “family members”), or a trust of which the Stockholder and/or one or more of such Stockholder’s family members are the sole beneficiaries; or

(e) any bona fide pledge of Stock by any Stockholder to any financial institution and/or the acquisition of such Stock by any such pledgee financial institution pursuant to such pledge.

provided that (1) any Transfer under clauses (a) through (e) above shall be void ab initio and of no legal force or effect whatsoever unless the transferee (x) represents in writing that it is not a competitor of the Company and (y) agrees in writing to be subject to the provisions of this Agreement by becoming a party hereto and (2) Stock transferred pursuant to clauses (a) – (e) may not be further Transferred under such clauses except to a Person that would have qualified as a Permitted Transferee of the Stockholder who effectuated the first Permitted Transfer of any such Stock.

“Permitted Transferee” shall mean the transferee in the event of a Permitted Transfer.

“Person” shall mean any natural person, corporation, limited liability company, partnership, trust or other entity.

“Plan” shall have the meaning set forth in the Recitals.

“Proceeding” shall have the meaning set forth in the Recitals.

“Preferred Stockholder” shall mean Bzinfin and any of its Affiliates to which Bzinfin has Transferred its shares of Stock in a Permitted Transfer, in each case, as holders of shares of New Preferred Stock and/or New Common Stock into which such New Preferred Stock is converted.

“Proportionate Percentage” shall mean, with respect to each Stockholder, a fraction of which (a) the numerator is the number of then outstanding shares of Stock held by such Stockholder (assuming the exercise or conversion, as applicable, to New Common Stock of New Preferred Stock and Stock Equivalents Beneficially Owned such Stockholder) and (b) the denominator is the total number of then outstanding shares of Stock (in each case, assuming the exercise or conversion, as applicable, to New Common Stock of New Preferred Stock and Stock Equivalents Beneficially Owned by all Stockholders).

“Put” shall have the meaning set forth in Section 8.01(a).

“Put Exercise Period” shall have the meaning set forth in Section 8.01(a).

“Put Holder” shall have the meaning set forth in Section 8.01(a).

“Put Notice” shall have the meaning set forth in Section 8.01(a).

“Put Price” shall mean (x) $6.0522 per share plus (y) accrued simple interest thereon, at a rate of 2.95% per annum, from and after the Effective Date through the earlier to occur of (i) a Change of Control or (ii) the eighth (8th) anniversary of the Effective Date.

“Put Shares” shall have the meaning set forth in Section 8.01(a).

2 Amount (on a per share basis) equal to the cost basis of the New Common Stock (i.e., 25% of the principal amount of the 8.25% Notes and accrued interest thereon through the date of the Lockup Agreement converted into New Common Stock).

“Qualified IPO” shall have the meaning set forth in the Articles of Incorporation.

“Related Party Transaction” shall mean any transaction, agreement or arrangement between (a) the Company or any of its subsidiaries, on the one hand, and (b) Bzinfin or any of its Affiliates, on the other hand.

“Restricted Payments” shall mean: (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of capital stock of the Company or any of its subsidiaries (other than to the Company or any of its wholly owned subsidiaries and other than dividends or distributions payable solely in capital stock); (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of capital stock of the Company or any of its subsidiaries; (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of capital stock of the Company or any of its subsidiaries; and (d) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any indebtedness subordinated or pari passu with the New Notes (as defined in the Plan) prior to the scheduled mandatory payment date.

“ROFR Securities” shall have the meaning set forth in Section 7.01.

“Sale Notice” shall have the meaning set forth in Section 7.01.

“Stock” shall mean all issued and outstanding shares of New Common Stock and New Preferred Stock, together with all other shares of capital stock of the Company of any class or series which may after the Effective Date be issued.

“Stock Equivalents” shall mean any security convertible into or exchangeable into Stock, or any right, warrant or option to acquire any Stock or such convertible or exchangeable security.

“Stockholder” and “Stockholders” have the meanings set forth in the Preamble.

“Tag Notice” shall have the meaning set forth in Section 5.01.

“Third Party Disposition” shall have the meaning set forth in Section 5.01.

“Third Party Transferee” shall have the meaning set forth in Section 6.01.

“Transfer” shall mean any sale, assignment, encumbrance, hypothecation, pledge, conveyance of any voting right or economic interest in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly.

“Transferred Shares” shall have the meaning set forth in Section 6.01.

“Waiver Event” shall have the meaning set forth in Section 7.02.

“Whitebox Investors” shall mean Whitebox Credit Arbitrage Partners, L.P., Pandora Select Partners, L.P., Whitebox Concentrated Convertible Arbitrage Partners, L.P., Whitebox Multi Strategy Partners, L.P. and Whitebox Special Opportunities Fund LP, Series B, together with their Permitted Transferees.

ARTICLE II

Board of Directors

Section 2.01. Observer Rights. The GSAM Investors shall have the right to designate one individual (the “Observer”) to attend all meetings of the Board (and any committees thereof) in a non-voting observer capacity. The Observer shall be entitled to receive all notices, reports, presentations and materials as if the Observer were a member of the Board. As a condition to this entitlement to receive such notices, reports, presentations and materials, each of the Observer and the GSAM Investors agrees to be governed by the same limitations, restrictions, and duties on the use and disclosure of all Company information, including limitations on trading in Company securities, as would apply to a member of the Board. The Company shall reimburse each Observer for any reasonable costs and expenses incurred in connection with meetings of the Board and committees thereof on the same basis that directors are reimbursed for such costs and expenses. The Observer may be recused from any meeting, and the Company may exclude the Observer (including the GSAM Investors) from access to any materials, if in the opinion of the Company’s counsel such exclusion is reasonably necessary to preserve the attorney-client privilege.

Section 2.02. ITC Director. So long as ITC Beneficially Owns at least two-thirds of the shares of New Common Stock owned by ITC on the Effective Date, ITC shall have the right to appoint one (1) member of the Board (the “ITC Director”). Each Stockholder agrees to vote its Stock in such a manner as to enable ITC to appoint the ITC Director and, in its sole discretion, to remove and replace, whether upon the occurrence of a vacancy for any reason, or otherwise, the ITC Director. ITC agrees that any individual it appoints to serve as the ITC Director shall possess sufficient professional experience, expertise and competence germane to the Company’s business and each such individual shall devote sufficient time and effort in connection therewith.

Section 2.03. Information Rights. The Whitebox Investors shall be entitled to receive all notices, reports, presentations and materials sent to the Board. As a condition to this entitlement to receive such notices, reports, presentations and materials, the Whitebox Investors agree to be governed by the same limitations, restrictions, and duties on the use and disclosure of all Company information, including limitations on trading in Company securities, as would apply to a member of the Board.

ARTICLE III

Preemptive Rights

Section 3.01. Notice of Issuance. The Company will give each Stockholder at least fifteen (15) Business Days prior written notice of any proposed sale or issuance by the Company of any Stock, except for Exempt Issuances or other than in connection with a Qualified IPO. Such notice will identify the Stock to be issued, the approximate date of issuance, and the price and other terms and conditions of the issuance. Such notice will also include an offer (the “Offer”) to transfer to each such Stockholder its Proportionate Percentage of such Stock (the “Offered Securities”) at the price and on the other terms as are proposed for such sale or issuance, which Offer by its terms shall remain open for a period of ten (10) Business Days from the date of receipt of such notice and which Offer may be accepted by any such Stockholder in such Stockholder’s sole discretion. The Offer will also specify each such Stockholder’s Proportionate Percentage, and the manner in which it was determined.

Section 3.02. Acceptance. Each Stockholder shall give notice to the Company of such Stockholder’s intention to accept an Offer prior to the end of the 5-Business Day period of such Offer, (a) confirming the Stockholders’ acceptance, in full, of such Offer and (b) specifying the maximum number of additional Offered Securities such Stockholder is willing to purchase if any other Stockholder declines to purchase such other Stockholder’s Offered Securities. If any Stockholder fails to subscribe for all of such Stockholder’s Offered Securities, the other subscribing Stockholders shall be entitled to purchase all of such Offered Securities, up to the number of additional Offered Securities specified in their notice in the same relative proportion in which they were initially entitled to purchase Stock in the Offer. The Company shall notify each Stockholder in writing within three (3) Business Days following the expiration of the 10-Business Day period described above of the additional amount of Offered Securities which each Stockholder may purchase pursuant to the foregoing sentence and each Stockholder shall then have three (3) Business Days from the delivery of such notice to indicate such additional amount, if any, that such Stockholder wishes to purchase.

Section 3.03. Sale to Stockholders. Upon the closing of any sale or issuance as to which the Company has given notice under Section 3.01, the Stockholders shall purchase from the Company, and the Company shall sell to the Stockholders, the Offered Securities subscribed for by the Stockholders at the price and on the terms specified in the Offer, which shall be the same price and terms at which all other Persons acquire such Offered Securities in connection with such sale or issuance.

Section 3.04. Sale to Third Parties. If, but only if, the Stockholders do not subscribe for all of the Offered Securities, the Company shall have 120 days from the end of the foregoing 15-Business Day period to sell all or any part of such Offered Securities as to which Stockholders have not accepted an Offer to any other Persons, at a price and on terms and conditions which are no more favorable to such other Persons or less favorable to the Company than those set forth in the Offer. Any Offered Securities not purchased by the Stockholders or other Persons in accordance with Section 3.03 and this Section 3.04 may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in this ARTICLE III.

ARTICLE IV

Transfer Restrictions

Section 4.01. No Transfer. No Stockholder may Transfer any Stock Beneficially Owned by such Stockholder to any other Person, except (a) in compliance with the provisions of ARTICLES V, VI AND VII or (b) in a Permitted Transfer. Notwithstanding anything to the contrary set forth in the Agreement, if a Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder shall be deemed to Transfer all of the Stock Beneficially Owned by it at any time as the owners of the voting and economic interests therein on the date such Stockholder became a party to this Agreement cease to Beneficially Own more than 50% of the voting or economic interests therein, whereupon all of the Stock Beneficially Owned by such Stockholder shall be subject to the provisions of ARTICLE VII. No Transfer made in compliance with this Agreement shall be effective unless and until the transferee has agreed to be a party to this Agreement and bound by all of its terms and provisions.

Section 4.02. Legends. All certificates or instruments representing Stock issued to any party to this Agreement shall bear substantially the following legends, and any other legends required by the Articles of Incorporation:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.

IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A STOCKHOLDERS AGREEMENT, DATED AS OF [•], 2012 (AS MAY BE AMENDED FROM TIME TO TIME) AND MAY NOT BE VOTED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT, A COPY OF WHICH IS AVAILABLE FROM THE COMPANY.

To the extent permitted under the Articles of Incorporation, if any shares of Stock shall become freely tradable under relevant securities laws, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate representing such shares without the first paragraph of the legend required by this Section 4.02. If any shares of Stock cease to be subject to the restrictions on Transfer set forth in this Agreement, the Company shall, upon the request of the holder thereof, issue to such holder a new certificate representing such shares without the second paragraph of the legend required by this Section 4.02. In each case, the requesting holder shall deliver to the Company or its transfer agent such certificates and opinions of counsel as may reasonably be required by the Company or its transfer agent, as applicable.

Section 4.03. Transfers in Contravention of Agreement. Any purported Transfer of Stock or any rights or obligations hereunder by any Stockholder in contravention of this Agreement shall be null and void, and the Company agrees not to effectuate any such Transfer of Stock.

ARTICLE V

Tag-Along Rights

Section 5.01. Tag-Along Rights. Neither Bzinfin nor any of its Permitted Transferees (each, a “Bzinfin Transferor”) shall Transfer or propose to Transfer, in the aggregate, to any Person or any Affiliate of such Person (other than a Permitted Transferee) (a “Third Party Transferee”), shares of Stock representing 5% or more of the outstanding shares of Stock (on an as converted basis), in one or more transactions (other than in a Permitted Transfer), unless the terms and conditions of such Transfer (the “Third Party Disposition”) to such Third Party Transferee shall contain an offer to each other Stockholder to include in such Third Party Disposition such number of shares of Stock as is determined in accordance with Section 5.02. At least fifteen (15) Business Days prior to effecting any Third Party Disposition, the Bzinfin Transferor shall promptly cause the terms and conditions of the Third Party Disposition to be reduced to a reasonably detailed notice (which notice shall identify the Third Party Transferee and shall include an offer by the Third Party Transferee (or the Bzinfin Transferor, as the case may be), to the other Stockholders to purchase or otherwise acquire their shares of Stock, as the case may be, according to the terms and subject to the conditions of this ARTICLE V), and shall deliver, or cause the Third Party Transferee to deliver, such written notice (the “Tag Notice”) of the terms of such Third Party Disposition to each Stockholder. The Tag Notice shall be accompanied by a true and correct copy of the agreement, if any, embodying the terms and conditions of the proposed Third Party Disposition or such written summary thereof if there is no agreement.

Section 5.02. Tag Along Participation. At any time after receipt of the Tag Notice (but in no event later than ten (10) Business Days after receipt), each Stockholder may accept the offer included in the Tag Notice for up to such number of its shares of Stock as determined in accordance with the provisions of this Section 5.02, by furnishing written notice of such acceptance to the Bzinfin Transferor and to the Third Party Transferee. In the event that any Stockholder elects to accept the offer included in the Tag Notice, such Stockholder (the “Included Stockholder”) shall have the right to Transfer such number of its shares of Stock pursuant to, and upon consummation of, the Third Party Disposition, which is equal to the product of (x) the total number of shares of New Common Stock owned by the Included Stockholder (assuming the conversion to New Common Stock of all shares of New Preferred Stock) and (y) a fraction, the numerator of which shall equal the total number of shares of Stock to be Transferred to the Third Party Transferee (assuming the conversion to New Common Stock of all shares of New Preferred Stock), and the denominator of which shall equal the total number of shares of New Common Stock Beneficially Owned by all Stockholders (assuming the conversion of all shares of New Preferred Stock). If the Third Party Transferee is not willing to purchase such additional shares, then as a condition to closing such Third Party Disposition (a) the number of shares to be Transferred by the Bzinfin Transferor and the Included Stockholders shall be proportionately reduced or (b) the Bzinfin Transferor shall purchase such shares from the Included Stockholders at the price set forth in the Tag Notice. The purchase of Stock pursuant to this ARTICLE V shall be made on the same terms (including the per share consideration and method of payment, and the date of Transfer), and subject to the same conditions, if any, as are provided to the Bzinfin Transferor and stated in the Tag Notice. The Included Stockholder shall only be required to give representations and warranties as to its due authority, ownership of the Stock Beneficially Owned by it and its ability to convey title to the shares of Stock Transferred by it pursuant to this ARTICLE V free and clear of all liens and encumbrances and shall only be required to indemnify for breach of its own representations and warranties.

Section 5.03. Closing of Tag Along Sale. Upon the consummation of the Transfer of Stock to the Third Party Transferee pursuant to a Third Party Disposition, the Bzinfin Transferor shall (a) cause the Third Party Transferee to remit directly to each Included Stockholder the sales price of its Stock Transferred pursuant thereto and (b) furnish such other evidence of the completion and time of completion of such Transfer and the terms thereof as may reasonably be requested by such Included Stockholder.

Section 5.04. Waiver of Participation. If a Stockholder has not delivered to the Bzinfin Transferor and to the Third Party Transferee written notice of its acceptance of the offer contained in the Tag Notice within ten (10) Business Days after the receipt of such Tag Notice, it shall be deemed to have waived any and all rights pursuant to this ARTICLE V with respect to the disposition of its Stock described in the Tag Notice, and the Bzinfin Transferor shall have forty-five (45) days (calculated from the first day next succeeding the expiration of the 10 Business Day acceptance period described above), in which to dispose of the aggregate amount of Stock described in the Tag Notice to the Third Party Transferee identified in the Tag Notice, on terms not more favorable to the Bzinfin Transferor than those which were set forth in the Tag Notice. If a Stockholder has delivered notice of acceptance as described in the preceding sentence and, if on or before lapse of the 45-day period specified in the preceding sentence, the Bzinfin Transferor and the Third Party Transferee shall not have completed the Transfer of Stock to be Transferred in connection therewith in accordance with the terms of the Third Party Disposition, all the restrictions on the Transfer of Stock contained in this ARTICLE V shall again be in force and effect.

ARTICLE VI

Drag Along Right

Section 6.01. Drag Along Right. If Bzinfin or any of its Permitted Transferees propose to Transfer in a bona fide transaction to any Person (other than in a Permitted Transfer) (a “Drag Along Transferee”) shares of Stock Beneficially Owned by Bzinfin or such Permitted Transferees representing at least 30% of the outstanding shares of Stock (on an as converted basis) (the “Transferred Shares”) then, at the election of such holder or holders (a “Drag Along Seller”), each other Stockholder (each, a “Drag Along Stockholder”) shall be required to Transfer to such Drag Along Transferee (a “Drag Along Sale”) such number of shares of Stock then Beneficially Owned by it (the “Drag Along Shares”) as bears the same relation to the total number of shares of Common Stock then Beneficially Owned by such Drag Along Stockholder (treating, for purposes of this ARTICLE VI, each share of New Preferred Stock as having been converted into and representing such number of shares of New Common Stock into which it is convertible at the time of the applicable determination) as the number of Transferred Shares bears to the total number of shares of Stock (on an as converted basis) then Beneficially Owned by the Drag Along Seller.

Section 6.02. Drag Along Notice. The Drag Along Seller shall deliver to each Drag Along Stockholder written notice (the “Drag Along Notice”) of any Transfer to be made pursuant to Section 6.01, which notice shall set forth the name of the proposed Drag Along Transferee, consideration to be paid by the Drag Along Transferee for each Transferred Share, the number of Transferred Shares to be Transferred by the Drag Along Seller, the number of shares to be Transferred by each Drag Along Stockholder, and the other terms and conditions, if any, of such transaction. Pending consummation of the Drag Along Sale, the Drag Along Seller shall promptly notify each Drag Along Stockholder of any changes in the proposed timing for the Drag Along Sale and any other material developments in connection therewith. The Drag Along Sale shall be on the same terms and conditions as the Transfer of the Transferred Shares by the Drag Along Seller. The Drag Along Stockholder shall only be required to give representations and warranties as to its due authority, ownership of the Stock Beneficially Owned by it and its ability to convey title to the shares of Stock Transferred by it pursuant to this ARTICLE VI free and clear of all liens and encumbrances and shall only be required to indemnify for breach of its own representations and warranties.

Section 6.03. Termination of Drag Along Sale. The Drag Along Seller will notify the other Stockholders at least fifteen (15) Business Days in advance of the closing of the Drag Along Sale. If, within forty-five (45) days after the Drag Along Seller provides the Drag Along Notice, no Transfer of the Transferred Shares Beneficially Owned by the Drag Along Seller or the Drag Along Shares in accordance with the provisions of this ARTICLE VI shall have been completed, the Drag Along Sale shall be terminated for purposes hereof and the Drag Along Seller must deliver another Drag Along Notice in order to exercise its rights under this ARTICLE VI with respect to such Transfer or any other Transfer.

Section 6.04. Closing of Drag Along Sale. Simultaneously with the consummation of the Transfer of the Transferred Shares pursuant to this ARTICLE VI, the Drag Along Seller shall cause the Drag Along Transferee to remit directly to the Drag Along Stockholder the consideration with respect to the Drag Along Shares and shall furnish such other evidence of the completion and time of completion of such Transfer and terms and conditions, if any, thereof as may reasonably be requested by each Drag Along Stockholder. For the avoidance of doubt, the provisions of this ARTICLE VI shall remain in effect for any subsequent proposed Transfer.

ARTICLE VII

Right of First Refusal

Section 7.01. Triggering Event. In the event that any Stockholder (other than a Preferred Stockholder) proposes to Transfer any Stock or Stock Equivalents (the “ROFR Securities”), then such Stockholder shall notify the Preferred Stockholder in writing (the “Sale Notice”), setting forth in reasonable detail the terms and conditions of the proposed Transfer of such ROFR Securities (which must be for cash or other consideration with readily ascertainable cash value) and the identity of the intended transferee (who must be a bona fide independent third party offeree) and shall offer the ROFR Securities to the Preferred Stockholder as provided hereinafter on the same terms and conditions.

Section 7.02. Right of First Refusal. Within ten (10) Business Days after receipt of the Sale Notice from the Stockholder, the Preferred Stockholder may elect (which election shall be irrevocable) to purchase all but not less than all of the ROFR Securities offered in the Sale Notice, at the price and on the terms and conditions specified in the Sale Notice (the “First Refusal Right”), by written notice (the “Exercise Notice”) to the Stockholder of such election. The date of a closing pursuant to this Section 7.02 shall take place at the offices of the Company on the fifth (5th) Business Day following the expiration of the ten (10) Business Day election period specified above. The failure of the Preferred Stockholder to deliver the Exercise Notice to purchase all but not less than all of the ROFR Securities before expiration of the ten (10) Business Day election period specified above shall be deemed a waiver of such First Refusal Right as to such ROFR Securities (a “Waiver Event”).

Section 7.03. Sale Mechanics. On the date fixed for closing pursuant to Section 7.02, the Stockholder shall deliver to the Preferred Stockholder the certificates representing the ROFR Securities sold to the Preferred Stockholder, free and clear of all liens and encumbrances (other than legends on share certificates in respect of applicable securities laws and the contractual restrictions set forth in this Agreement) and properly indorsed for Transfer, and the Preferred Stockholder shall pay the purchase price for the ROFR Securities purchased by it by delivery of immediately available funds to the Stockholder.

Section 7.04. Sale to Third Party. Upon the occurrence of a Waiver Event, the Stockholder may, during the ninety (90) day period following the expiration of the ten (10) Business Day election period provided for in Section 7.02, sell all or any portion of the ROFR Securities, but not less than 50% of the ROFR Securities, to the proposed transferee on the same terms or no more favorable terms to the proposed transferee as specified in the Sale Notice. If the Stockholder shall not have sold such ROFR Securities within such period or the terms of sale shall have materially changed in a manner favorable to the proposed transferee, the right provided hereunder shall be deemed to be revived with respect to that portion of the ROFR Securities not sold or as to which the terms of sale have so materially changed, and such ROFR Securities shall not be sold unless first re-offered to the Preferred Stockholder in accordance with this ARTICLE VII. Notwithstanding anything to the contrary set forth in this Article VII , any sale of ROFR Securities under this Section 7.04 shall be void ab initio and of no legal force or effect whatsoever unless the proposed transferee (x) represents in writing that it is not a competitor of the Company and (y) agrees in writing to be subject to the provisions of this Agreement by becoming a party hereto.

ARTICLE VIII

Put Right

Section 8.01. Put Right.

(a) At any time or from time to time after the earlier to occur of (i) a Change of Control or (ii) the eighth (8th) anniversary of the Effective Date and in either case, whichever occurs first, until the first anniversary of the date thereof (the “Put Exercise Period”), the Company shall, subject to ARTICLE XII, upon at least ten (10) Business Days’ written notice (a “Put Notice”) from any 8.25% Noteholder that is a Stockholder, or a Permitted Transferee thereof (each a “Put Holder”), repurchase, on the date and in the manner set forth in Section 8.01(b) (the “Put”), from each such Put Holder, all of the shares of New Common Stock Beneficially Owned by the 8.25% Noteholders on the Effective Date and then still outstanding and Beneficially Owned by a Put Holder and requested to be repurchased in the Put Notice (collectively, the “Put Shares”). The purchase price for each Put Share repurchased in the Put shall be an amount equal to the Put Price.

(b) On the date of any repurchase of Put Shares pursuant to this ARTICLE VIII, the Put Holder of each such affected Put Share shall assign to the Company such Put Shares repurchased without any representation or warranty or indemnity (except as specified in the last sentence of Section 6.02 hereof), by the surrender of such Put Shares to the Company against payment of the Put Price therefor. Upon receipt by the Company of duly executed and effective assignment documentation, payment of the Put Price shall be made at the option of each participating Put Holder by (i) wire transfer to an account in a bank located in the United States designated by such Put Holder for such purpose or (ii) a certified or official bank check payable to the order of such Put Holder.

Section 8.02. Limitations on the Company’s Obligations to Purchase Shares.

(a) Except to the extent provided in Section 8.02(b), the Company shall not be obligated to purchase the Put Shares pursuant to Section 8.01 during the Put Exercise Period to the extent that such repurchase would, in the sole determination of the Board acting reasonably and in good faith, be reasonably likely to have a material adverse effect on the liquidity of the Company immediately following the date of the Put Notice (a “Disabling Condition”).

(b) In the event that any Disabling Condition exists with respect to any repurchase requested pursuant to Section 8.01 during the Put Exercise Period, the Company shall promptly after receipt of the Put Notice and determination of such Disabling Condition give each Put Holder participating in such Put written notice thereof (the “Disabling Notice”) which notice shall include a certificate of the Chief Executive Officer, President or Chief Financial Officer of the Company certifying to the existence of the Disabling Condition. If the Disabling Condition would not prohibit the Company from repurchasing all of the Put Shares, such notice shall indicate the portion of the Put Shares that may be repurchased by the Company without giving rise to a Disabling Condition, and the Company shall repurchase such portion of such Put Shares, pro rata in accordance with the number of Put Shares held by each participating Put Holder, on the date and in the manner set forth in Section 8.01(b).

(c) Following the delivery of a Disabling Notice, and so long as the Disabling Condition continues to exist, the Company shall, within two (2) Business Days following the end of each fiscal quarter, deliver a certificate of the Chief Executive Officer, President or Chief Financial Officer of the Company, certifying to such continued existence. In the event that the Company determines that a Disabling Condition has ceased to exist (in which case the Company shall so notify the Put Holders within two (2) Business Days), the right to exercise the Put shall be reinstated automatically for the portion of the Put Exercise Period that remained at the time of occurrence of the Disabling Condition.

(d) In any case in which, and for so long as, the Company is released from its obligation to repurchase any Put Shares under Section 8.01 because of the existence of a Disabling Condition, the Company shall not make any Restricted Payments until such time that the Put Holders may exercise the Put.

ARTICLE IX

Call Right

Section 9.01. Call Right. At any time or from time to time until the third (3rd) anniversary of the Effective Date, Bzinfin, together with its Permitted Transferees, shall have the right, upon at least twenty (20) Business Days’ notice, to purchase all or part of the Put Shares then Beneficially Owned by the Put Holders at the Call Price. On the date of any such purchase, the Put Holder of each such affected Put Share shall assign to Bzinfin and its Permitted Transferees, as applicable, such Put Shares purchased without any representation or warranty or indemnity (except as specified in the last sentence of Section 6.02 hereof), by the surrender of such Put Shares to Bzinfin and its Permitted Transferees, as applicable, against payment of the Call Price therefor (such shares, the “Call Shares”). Upon receipt by Bzinfin and its Permitted Transferees, as applicable, of duly executed and effective assignment documentation, payment of the Call Price shall be made at the option of each participating Put Holder by (a) wire transfer to an account in a bank located in the United States designated by such Put Holder for such purpose or (b) a certified or official bank check payable to the order of such Put Holder.

ARTICLE X

Information Rights

Section 10.01. Information Rights. The Company will deliver, or cause to be delivered, the following to each Stockholder that Beneficially Owns at least 5% of the outstanding shares of New Common Stock (each, a “Major Stockholder”):

(a) as soon as available after the end of the first full fiscal year of the Company following the Effective Date and each successive fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company and its subsidiaries as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company and its subsidiaries for such year, prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by the opinion of independent public accountants of recognized national standing selected by the Company;

(b) as soon as available after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within 45 days thereafter, a consolidated balance sheet of the Company and its subsidiaries as of the end of each such quarterly period, and consolidated statements of income, retained earnings and cash flows of the Company and its subsidiaries for such period and for the current fiscal year to date, prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of notes thereto) and setting forth in comparative form the figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by the principal financial or accounting officer of the Company;

(c) as soon as available after the end of each month and in any event within 20 days thereafter, a consolidated balance sheet of the Company and its subsidiaries as of the end of such month and consolidated statements of operations, income, cash flows, retained earnings and shareholders’ equity of the Company and its subsidiaries, for each month and for the current fiscal year of the Company to date, prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of notes thereto); and

(d) such other information and data with respect to the Company and each of its subsidiaries as from time to time may be reasonably requested in writing by such Stockholder.

Section 10.02. Confidentiality. Each Major Stockholder agrees to hold all information received pursuant to Section 10.01 in confidence, and not to use or disclose any of such information to any Person (other than a Major Stockholder or the Company), except to the extent such information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 10.02 by such Major Stockholder or any of its Affiliates), (b) is or has been independently developed or conceived by such Major Stockholder without use of the Company’s confidential information, or (c) is or has been made known or disclosed to such Major Stockholder by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that such a Major Stockholder may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective transferee of any Stock from such Major Stockholder, if such prospective transferee agrees in writing to be bound by the provisions of this Section 10.02 pursuant to an agreement which lists the Company as a third party beneficiary; (iii) to any Affiliate, partner, member, stockholder, or wholly-owned subsidiary of such Major Stockholder in the ordinary course of business, if each such Person agrees in writing to be bound by the provisions of this Section 10.02 pursuant to an agreement which lists the Company as a third party beneficiary; or (iv) as may otherwise be required by law, provided that such Major Stockholder promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.

ARTICLE XI

Consent Rights

Section 11.01. GSAM Consent Rights. So long as (a) the GSAM Investors Beneficially Own, in the aggregate, at least two-thirds of the shares of the New Common Stock owned by the GSAM Investors on the Effective Date (which ownership shall include, for purposes of this calculation, any Drag Along Shares and Call Shares sold by the GSAM Investors) and (b) Bzinfin, together with its Affiliates, either (i) solely in its capacity as a holder of shares of New Preferred Stock, has the right to appoint a majority of the Board or (ii) Beneficially Owns, in the aggregate, at least 35% of the shares of New Preferred Stock Beneficially Owned by Bzinfin on the Effective Date, neither the Company nor any of its subsidiaries shall, without the consent of the GSAM Investors:

(a) enter into any Related Party Transaction, except for (i) any Related Party Transaction providing for annual payments or other obligations of less than $2,000,000; (ii) any Related Party Transaction pertaining to a supply contract based on arm’s length terms with the Company or any of its subsidiaries, provided that (A) such contract shall allow the Company or any such subsidiary to earn margins thereunder not less than margins customarily earned under such types of contracts and (B) at least five (5) Business Days before entering into any such contract, the Company shall provide the GSAM Investors with a copy of such contract or a summary of the terms thereof and a certificate of the Chief Executive Officer, President or Chief Financial Officer of the Company confirming that such contract satisfies the requirements of this clause (ii); (iii) any Related Party Transaction pertaining to a procurement contract based on arm’s length terms with the Company or any of its Subsidiaries, provided that (A) the terms of such contract shall not be materially different (to the benefit of the affiliated vendor) from the terms offered by any non-affiliated vendor and (B) at least five (5) Business Days before entering into any such contract, the Company shall provide the GSAM Investors with a copy of such contract or a summary of the terms thereof and a certificate of the Chief Executive Officer, President or Chief Financial Officer of the Company confirming that such contract satisfies the requirements of this clause (iii); (iv) any Related Party Transaction pertaining to the purchase or sale of assets (including capital stock) at fair market value as determined by an Independent Financial Advisor; (v) any Related Party Transaction pertaining to an equity investment in the Company or any of its subsidiaries for cash consideration at fair market value as determined by an Independent Financial Advisor; and (vi) any Related Party Transaction under written agreements in effect as of the date hereof, provided that neither the Company nor any of its Subsidiaries shall be permitted to enter into any material amendments or waivers of such agreements; provided, however, that this provision shall not prohibit (xx) the payment of reasonably and customary compensation and other benefits and indemnification arrangements to directors, officers and employees of the Company or any of its subsidiaries, in each case in the ordinary course of business, and approved in good faith by the Board, (yy) any repurchase, redemption or other acquisition or retirement for value of any capital stock of the Company or any of its subsidiaries held by any present or former employee or director of the Company (or any of its subsidiaries) pursuant to any management equity subscription agreement or stock option agreement or other management or employee benefit plan or similar agreement or (zz) Restricted Payments that are not prohibited under Section 8.02(d);

(b) any change in the jurisdiction of organization of the Company or any successor thereto other than in connection with a Change of Control Termination Event;

(c) alter or change the rights, preferences or privileges of the shares of the New Preferred Stock, including by amendment to the Articles of Incorporation, or by merger, consolidation or otherwise;

(d) increase or decrease the number of authorized shares of New Common Stock or New Preferred Stock;

(e) create (by reclassification or otherwise) any new class or series of Stock of the Company;

(f) amend the Articles of Incorporation; or

(g) redeem or repurchase or take any action that results in the redemption or repurchase of, any shares of New Common Stock (except for repurchases of Put Shares pursuant to ARTICLE VIII) or any series of shares of preferred stock of the Company, except for the New Preferred Stock at a price not to exceed its liquidation value.

ARTICLE XII

Termination

Section 12.01. Termination. This Agreement shall terminate upon the occurrence of any of the following events:

(a) the dissolution of the Company;

(b) the written agreement of the Majority Holders;

(d) a Change of Control Termination Event, except that ARTICLE VIII of this Agreement shall not terminate upon a Change of Control Termination Event if (1) such Change of Control Termination Event occurs (xx) prior to the eighth anniversary of the Effective Date or (yy) during the Put Exercise Period and (2) a Put Holder continues to Beneficially Own Put Shares or capital stock of the surviving entity into which such Put Shares are converted or exchanged pursuant to such Change of Control Termination Event (the “Legacy Put Shares”) immediately following the consummation of such Change of Control Termination Event, in which case the right to exercise the Put shall apply, in all respects, to the Put Shares or the Legacy Put Shares, as applicable, Beneficially Owned by the Put Holder immediately following such Change of Control Termination Event in accordance with ARTICLE VIII, provided, however, that the total Put Price shall be reduced by an amount equal to the aggregate amount of any and all cash consideration received by the Put Holder for its Put Shares in connection with the Change of Control Termination Event.

ARTICLE XIII

Miscellaneous

Section 13.01. Notices. Any notice, approval, consent, request or other communication hereunder shall be given only by, and shall be deemed to have been received upon, (a) registered or certified mail, return receipt requested, on the date on which received as indicated in such return receipt, (b) delivery by a nationally recognized overnight courier, one (1) Business Day after deposit with such courier, (c) facsimile during regular business hours of the recipient, upon electronic confirmation of receipt or (d) email transmission, during regular business hours of the recipient, upon further electronic communication from the recipient acknowledging receipt (whether automatic or manual from recipient), in each case, at the address reflected below or at such other address as such party shall request in a written notice:

(i) If to the Company:

Ener1, Inc.

1540 Broadway

New York, NY 10036

Attention: Nicholas Brunero

Telephone: (212) 920-3500 x 104

Facsimile: (212) 920-3510

Email: nbrunero@ener1.com

With a copy to:

Reed Smith LLP

599 Lexington Avenue

New York, NY 10022

Attention: Edward J. Estrada

Telephone: (212) 549-0247

Facsimile: (212) 521-5450

Email: eestrada@reedsmith.com

(ii) If to any Stockholder: As set forth on its signature page hereto.3

Section 13.02. Complete Agreement; Amendment. This Agreement constitutes the complete understanding of the parties with respect to its subject matter and supersedes any other agreement or understanding relating thereto. This Agreement may be amended from time to time by an instrument in writing signed by the Majority Holders.

Section 13.03. Waiver. No failure or delay on the part of the Stockholders or the Company or any of them in exercising any right, power or privilege hereunder, and no course of dealing between the Stockholders or Company, shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege hereunder preclude the simultaneous or later exercise of any other right, power or privilege. The rights and remedies herein expressly provided are cumulative and not exclusive of any rights and remedies which the Stockholders or Company would otherwise have.

Section 13.04. Rights and Obligations. Any Stockholder who disposes of its, his or her Stock in accordance with the provisions of this Agreement shall cease to be a party to this Agreement and shall have no further rights or obligations hereunder.

Section 13.05. Assignment; Successors. The rights and obligations of the Stockholders pursuant to this Agreement are assignable and transferable only in connection with a Transfer, to the extent permitted by this Agreement, of the shares of Stock to which such rights and obligations relate. Every covenant, term and provision of this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, legatees, legal representatives and permitted successors, transferees and assigns.

3 Note to Bzinfin: Please also provide notice information for an agent for service of process in the U.S. (see signature page).

Section 13.06. Governing Law; Submission to Jurisdiction; Selection of Forum; WAIVER OF TRIAL BY JURY. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution, termination, performance or nonperformance of this Agreement, shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed in such State, without regard to any conflict of laws principles thereof. Subject to Section 13.08, each party agrees that it shall bring any action or proceeding in respect of any claim based upon, arising out of, or related to this Agreement, any provision hereof or any of the transactions contemplated hereby, in the United States District Court for the Southern District of New York or any New York State court sitting in New York County of New York City (the “Chosen Courts”), and solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party. Each party agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, MATTER OR PROCEEDING BASED UPON, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY PROVISION HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. Service of process on the parties in any action arising out of or relating to this Agreement shall be effective if delivered to the parties in accordance with Section 13.01.

Section 13.07. Further Assurances. Each party hereby covenants and agrees, without the necessity of any further consideration, to execute and deliver any and all such further documents and take any and all such other actions as may be reasonably necessary or appropriate to carry out the intent and purposes of this Agreement and to consummate the transactions contemplated hereby.

Section 13.08. Equitable Relief. It is hereby acknowledged that irreparable harm would occur in the event that any of the provisions of this Agreement were not performed fully by the parties in accordance with the terms specified herein, and that monetary damages may not be an adequate remedy for breach of this Agreement. Accordingly, each party hereby agrees that each other party shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of the undertakings and provisions hereof and to enforce specifically the undertakings and provisions hereof in any court of the United States or any state having jurisdiction over the matter (without posting any bond or other security); it being understood that such remedies shall be in addition to, and not in lieu of, any other rights and remedies available at law or in equity.

Section 13.09. Severability. If any provision of this Agreement, as applied to any part or to any circumstance, is held invalid, illegal or unenforceable under applicable law, (a) such provision, as applied to such party or such circumstance, is hereby deemed modified to give effect to the original written intent of the parties to the greatest extent consistent with being valid and enforceable under applicable law, (b) the application of such provision to any other party or to any other circumstance will not be affected or impaired thereby and (c) the validity, legality and enforceability of the remaining provisions of this Agreement will remain in full force and effect.

Section 13.10. Rules of Construction.

(a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: (i) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and, if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day; (ii) any reference in this Agreement to $ shall mean U.S. dollars; (iii) all Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein and any capitalized terms used in any Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement; (iv) words imparting the singular number only shall include the plural and vice versa; (v) the words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires; (vi) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (vii) the division of this Agreement into Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement; and (viii) all references in this Agreement to any “Article” or “Section” are to the corresponding Article or Section of this Agreement unless otherwise specified.

(b) The parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

Section 13.11. Third Parties. Nothing in this Agreement, express or implied, is intended to confer upon any Person, other than the parties and their permitted successors and transferees, any rights or remedies under or by reason of this Agreement.

Section 13.12. Counterparts. This Agreement may be executed and delivered by facsimile, PDF or other electronic transmission in one or more counterparts, each of which will be deemed to be an original, but all of which will be one and the same document.

[Signature Page Follows]

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

	COMPANY

	ENER1, INC.

	By:
	Name:
	Title:

[Signature Page to Stockholders Agreement]

	STOCKHOLDERS

	BZINFIN S.A

	By:
	Name:
	Title:

Notices:

Avocat

Budin & Associés

20, Rue Jean Sénebier

CP 166

1211 Genève 12

Telephone: 022 818 08 08

Facsimile: 022 818 08 15

Email: patrick.bittel@budin.ch

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

Greenberg Traurig, P.A.

333 Avenue of the Americas

(333 S.E. 2nd Avenue)

Miami, Florida 33131

Attention: Andrew E. Balog, Esq.

Telephone: (305) 579-0642

Facsimile: (305) 961-5642

Email: aeb@gtlaw.com

[Signature Page to Stockholders Agreement]

LIBERTY HARBOR SPECIAL INVESTMENTS, LLC

	By:	Goldman Sachs Asset Management, L.P.


		Name:
		Title: Authorized Person

		Notices: 1 American Lane Greenwich, CT 06831 Attention: Jon Yoder and David X. Yu Telephone: (203) 983-2516; (203) 983-2508 Facsimile: (203) 983-2525; (646) 835-3333 Email: jon.yoder@gs.com; david.yu@gs.com

GOLDMAN SACHS PALMETTO STATE CREDIT FUND, L.P.

	By:	Goldman Sachs Asset Management, L.P.


		Name:
		Title: Authorized Person

		Notices: 1 American Lane Greenwich, CT 06831 Attention: Jon Yoder and David X. Yu Telephone: (203) 983-2516; (203) 983-2508 Facsimile: (203) 983-2525; (646) 835-3333 Email: jon.yoder@gs.com; david.yu@gs.com

[Signature Page to Stockholders Agreement]

WHITEBOX MULTI STRATEGY PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

WHITEBOX CONCENTRATED CONVERTIBLE ARBITRAGE PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

[Signature Page to Stockholders Agreement]

PANDORA SELECT PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

[Signature Page to Stockholders Agreement]

WHITEBOX SPECIAL OPPORTUNITIES FUND LP, SERIES B

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

[Signature Page to Stockholders Agreement]

ITOCHU

By:
Name:
Title:

	Notices:
	Address:	ITOCHU Corporation TOKVU Section 5-1, Kita-Aoyama 2-chome Minato-ku, Tokyo 107-8077 Japan
	Attention:	Hiroaki Murase Mr. and Kunihiro Kawakita Mr. Telephone: +81-3-3497-2659 Facsimile: +81-3-3497-4160 Email: hiro.murase@itochu.co.jp; kawakita-k@itochu.co.jp

[Signature Page to Stockholders Agreement]

ANNEX 2

REGISTRATION RIGHTS AGREEMENT

Registration Rights Agreement, dated as of [•], 2012, by and among Ener1, Inc., a Florida corporation (the “Company”), and the Holders listed on the signature page of this Agreement and any Additional Holders who after the Effective Date become parties to this Agreement.

INTRODUCTION

WHEREAS, pursuant to the Plan, the Company is authorized to enter into this Agreement with the Holders to provide them with certain registration rights with respect to the Registrable Securities Beneficially Owned by them from and after the Effective Date, on the terms and subject to the conditions set forth herein; and

WHEREAS, the parties hereto desire to enter into this Agreement as of the Effective Date for the purpose specified in the foregoing recital.

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, it is agreed as follows:

ARTICLE I

Definitions

Section 1.01. Definitions. Unless otherwise defined herein, capitalized terms used herein and in the preamble and the recitals above shall have the following meanings:

“Additional Holders” shall mean the Permitted Assignees of Registrable Securities who, from time to time, acquire Registrable Securities from a Holder or Holders and Beneficially Own Registrable Securities at the relevant time, agree to be bound by the terms hereof and become Holders under of this Agreement.

“Agreement” shall mean this Registration Rights Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.

“Beneficial Ownership” means, with respect to a specified Person, the ownership of securities as determined in accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended, as such Rule is in effect from time to time. “Beneficially Own” and “Beneficial Owner” shall each also have the correlative meaning.

“Business Day” shall mean any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in New York, New York.

“Commission” shall mean the Securities and Exchange Commission or any other federal agency then administering the Securities Act and other federal securities laws.

“Common Stock” shall mean the shares of common stock, $0.01 par value per share, of the Company, as adjusted to reflect any merger, consolidation, recapitalization, reclassification, split-up, stock dividend, rights offering or reverse stock split made, declared or effected with respect to the Common Stock.

“Company” shall have the meaning assigned to such term in the preamble.

“Demand Registration” shall have the meaning assigned to such term in Section 2.01(a).

“Effective Date” means the date of this Agreement.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor federal statute thereto, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

“Final Prospectus” shall have the meaning assigned to such term in Section 2.05(e).

“GSAM Investors” shall mean Liberty Harbor Special Investments, LLC and Goldman Sachs Palmetto State Credit Fund, L.P., together with their Permitted Assignees.

“Holder” shall mean any (a) Person who Beneficially Owns Registrable Securities on the Effective Date and is a party to this Agreement and/or (b) Additional Holder who shall become a party to this Agreement in accordance with the terms herein, in each case, only to the extent such Person Beneficially Owns Registrable Securities.

“Majority Holders” shall mean, collectively, (a) Bzinfin S.A. and its Affiliates so long as either (i) Bzinfin S.A., together with its Affiliates, including any Pemitted Transferee as a result of a Permitted Transfer under clauses (b), (c) or (e) of the definition thereof, possess the power to elect a majority of the members of the Board or (ii) Bzinfin S.A. and its Affiliates Beneficially Own, in the aggregate, at least thirty percent (30%) of the outstanding shares of Common Stock, on an as converted basis of the Preferred Stock into Common Stock and (b) Holders of at least fifty percent (50%) of the then outstanding Registrable Securities, other than those Beneficially Owned by Bzinfin S.A. and its Affiliates on an as converted basis of the Preferred Stock into Common Stock; provided, however, that if clause (a) is deemed inapplicable by reason of the failure of the conditions specified in both item (i) and (ii) thereof, then “Majority Holders” shall mean Holders of at least fifty percent (50%) of the then outstanding Registrable Securities Beneficially Owned by all the Holders, including Bzinfin S.A. and its Affiliates, on an as converted basis of the Preferred Stock into Common Stock.

“Other Securities” shall have the meaning assigned to such term in the definition of “Registrable Securities.”

“Permitted Assignee” shall mean any (a) Affiliate of any Holder who acquires Registrable Securities from such Holder or another Affiliate of such Holder, effective upon the provision of written notice to the Company of such acquisition, or (b) any other Person who acquires any Registrable Securities of any Holder who is designated as a Permitted Assignee by such Holder in a written notice to the Company; provided in each case that (i) such acquisition or assignment is effected in accordance with applicable securities laws and (ii) such proposed Permitted Assignee agrees in writing to become subject to the terms of this Agreement; provided, however, that the rights of any Person designated as a Permitted Assignee referred to in the foregoing clause (b) shall be limited if, and to the extent, provided in the notice referred to therein; and further provided, however, so long as the Stockholders Agreement is in effect no Person referred in either foregoing clauses (a) or (b) shall be deemed a Permitted Assignee unless its acquisition of Registrable Securities is effected in accordance with the terms and conditions of the Stockholders Agreement and such Person has validly become a party to the Stockholders Agreement in accordance with its terms and conditions.

“Person” shall mean any natural person, corporation, limited liability company, partnership, trust or other entity.

“Plan” shall mean the Company’s Plan of Reorganization filed under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. Section 101-1130 in In re Ener1, Inc., Case No. [______________] and confirmed by the United States Bankruptcy Court for the Southern District of New York.

“Preferred Stock” shall mean the shares of preferred stock, $0.01 par value per share, of the Company, as adjusted to reflect any merger, consolidation, recapitalization, reclassification, split-up, stock dividend, rights offering or reverse stock split made, declared or effected with respect to the Preferred Stock.

“Public Offering” shall mean any public offering and sale of equity securities of the Company or its successors for cash pursuant to an effective registration statement (other than on Form S-4, S-8 or a comparable form) under the Securities Act.

“Registrable Securities” shall mean the Common Stock of the Company Beneficially Owned by the Holders as of the Effective Date or at any time thereafter or issuable upon conversion of the Preferred Stock Beneficially Owned by the Holders as of the Effective Date or at any time thereafter; and, if as a result of any reclassification, stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, sale of all or substantially all of the assets of the Company or other reorganization or other transaction or event, any capital stock, debt securities, warrants, options, rights or other securities (collectively “Other Securities”) are issued or transferred to a Holder in respect of Registrable Securities Beneficially Owned by the Holder, references herein to Registrable Securities shall be deemed to include such Other Securities; provided, however, that a share of Common Stock or Other Securities will cease to be a Registrable Security if (a) a registration statement covering such share of Common Stock or Other Securities, as applicable, has been declared effective by the Commission and such share of Common Stock or Other Securities, as applicable, has been sold or disposed of pursuant to such effective registration statement, (b) such share of Common Stock or Other Securities, as applicable, has been sold or disposed of pursuant to Rule 144 (or any successor rule) under the Securities Act, (c) such share of Common Stock or other Securities, as applicable, is eligible for resale pursuant to Rule 144 (or any successor rule) without limit as to volume or the manner of sale, except that this clause (c) shall not apply to underwritten offerings pursuant to Section 2.02, (d) such share of Common Stock or Other Securities, as applicable, has been Transferred to a Person who is not (and does not become as a result of such Transfer) a Holder, (e) such share of Common Stock or Other Securities, as applicable, is held by the Company or any of its subsidiaries or (f) such share of Common Stock or Other Securities, as applicable, ceases to be outstanding.

“Securities Act” shall mean the Securities Act of 1933, as amended, or any successor federal statute thereto, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

“Stockholders Agreement” means that certain Stockholders Agreement, dated as of the Effective Date, by and among the Company and the Holders, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Stockholders Agreement as the same may be in effect at the time such reference becomes operative.

“Transfer” and “Transferred” shall have the meanings set forth in the Stockholders Agreement.

ARTICLE II

Registration Rights

Section 2.01. Demand Registration.

(a) Subject to Article III, at any time after the six (6) month anniversary of the Company’s initial Public Offering after the Effective Date, (i) any Holder of at least 10% of the Registrable Securities then outstanding or (ii) the GSAM Investors or their Affiliates, so long as they Beneficially Own at least one-third of the Registrable Securities Beneficially Owned by the GSAM Investors on the Effective Date, may request in writing (specifying that such request is being made pursuant to this Section 2.01(a) and the intended method or methods of disposition thereof) that the Company file a registration statement (or corresponding successor document) under the Securities Act, of all or part of its or their Registrable Securities (a “Demand Registration”). Thereafter, the Company shall promptly notify all other Holders in writing of the receipt of such request, and each such Holder in lieu of exercising its rights under Section 2.02 may elect (by written notice sent to the Company within ten (10) Business Days from the date of the aforementioned notice) to have Registrable Securities included in such Demand Registration thereof pursuant to this Section 2.01(a). Thereupon the Company shall, as expeditiously as is reasonably possible, use its commercially reasonable efforts to effect the registration under the Securities Act of all shares of Registrable Securities which the Company has been so requested to register by such Holders for sale, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered; provided, however, that the Company shall not be required to effect a registration of Registrable Securities on a Form S-1 or other “long-form” registration pursuant to this Section 2.01(a) unless the Registrable Securities requested by all Holders to be registered have an anticipated aggregate public offering price (before any underwriting discounts and commissions) of not less than Fifteen Million Dollars ($15,000,000); and further provided, however, the Company shall not be required to effect more than two (2) registrations on Form S-1 or other “long form” registration of any Registrable Securities pursuant to this Section 2.01(a). There shall be no aggregate limit on short-form registrations on Form S-3 or any successor form so long as the anticipated aggregate public offering price (before any underwriting discounts and commissions) of the Registrable Securities to be registered on each such short-form registration is not less than Three Million Dollars ($3,000,000). Except as otherwise provided in Section 2.04, all expenses of such registration shall be borne by the Company.

(b) A registration will not count as a Demand Registration until the applicable registration statement has become effective (unless the requesting Holder withdraws all of its Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the requesting Holder pays all registration expenses in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is either (i) interfered with by any stop order, injunction or other order or action of the Commission or other governmental agency or court (other than because of a violation of applicable law by a Holder) or (y) withdrawn because of any development affecting the Company, in either case before being in effect for more than 90 days, then such registration will be deemed not to have been effected and will not count as a Demand Registration unless at least ninety percent (90%) of the Registrable Securities included thereon have been sold or otherwise disposed of.

(c) If the managing underwriter of a Demand Registration shall advise the Company in writing that, in its opinion, the inclusion of all of the Registrable Securities requested to be included in the Demand Registration would materially and adversely affect the distribution of a smaller amount of such Registrable Securities, then all selling Holders shall reduce the amount of Registrable Securities each intended to distribute through such offering on a pro-rata basis such that the Registrable Securities to be included in the Demand Registration shall be reduced to such smaller amount.

Section 2.02. Piggyback Registration.

(a) If the Company at any time proposes to file for its own account and/or for the account of any of its security holders (the “Demanding Security Holders”) a registration statement under the Securities Act on any form (other than on Form S-4 or Form S-8 or any successor form for securities to be offered in a transaction of the type referred to in Rule 145 under the Securities Act or in connection with an exchange offer, or to employees of the Company pursuant to any employee benefit plan, respectively) for the general registration of securities, it will give written notice to all Holders at least ten (10) Business Days before the initial filing with the Commission of such registration statement, which notice shall set forth the intended method of disposition of the securities proposed to be registered by the Company. The notice shall offer to include in such filing the aggregate number of shares of Registrable Securities as such Holders may request.

(b) Each Holder desiring to have Registrable Securities registered under this Section 2.02 shall advise the Company in writing within five (5) Business Days after the date of such notice from the Company, setting forth the amount of such Registrable Securities for which registration is requested. The Company shall thereupon include in such filing the number of shares of Registrable Securities for which registration is so requested, subject to the next sentence, and shall use its commercially reasonable efforts to effect registration under the Securities Act of such shares. If the managing underwriter of a proposed Public Offering shall advise the Company in writing that, in its opinion, the inclusion of all of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company or such demanding security holder would materially and adversely affect the distribution of such securities by the Company or such demanding security holder, then all selling security holders (including the Demanding Security Holder who initially requested such registration) shall reduce the amount of securities each intended to distribute through such offering on a pro-rata basis to such smaller amount of Registrable Securities to be included in such registration as the managing underwriter shall approve. Except as otherwise provided in Section 2.04, all expenses of such registration shall be borne by the Company or, if applicable, the Demanding Security Holder(s).

Section 2.03. Registration Procedures.

(a) If the Company is required by the provisions of Section 2.01 or Section 2.02 to use its commercially reasonable efforts to effect the registration of any of Registrable Securities under the Securities Act, the Company will, as expeditiously as reasonably possible:

(i) prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become and remain effective for a period of time required for the disposition of such Registrable Securities by the Holders thereof, but not to exceed 180 days; provided that the Company may discontinue any registration of securities that cease to be Registrable Securities;

(ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus (including any free writing prospectus) used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement until the earlier of (A) such time as all of such Registrable Securities have been disposed of in a Public Offering and (B) the expiration of 180 days; provided that the Company may discontinue any registration of securities that cease to be Registrable Securities;

(iii) furnish to the selling Holders included in such registration statement such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus and free writing prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such selling Holders may reasonably request;

(iv) use its commercially reasonable efforts to register or qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions within the United States as each holder of such securities shall request (provided that the Company shall not be obligated to qualify as a foreign corporation to do business under the laws of any jurisdiction in which it is not then qualified, to subject itself to taxation in such jurisdiction or to file any general consent to service or process), and do such other reasonable acts and things as may be required of it to enable such holder to consummate the disposition in such jurisdiction of the securities covered by such registration statement;

(v) promptly notify each Holder whose Registrable Securities are intended to be covered by such registration statement and each applicable underwriter and, if requested by any such Person, confirm such notice in writing (A) when a prospectus (including any free writing prospectus) or any prospectus supplement or post-effective amendment has been filed with respect to such registration statement and, with respect to such registration statement or any post-effective amendment thereof, when the same has become effective, (B) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities intended to be covered by such registration statement under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, (C) any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information with respect thereto, and (D) of the happening of any event which requires the making of any changes in such registration statement or prospectus so that they 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, and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that, with respect to any registration statement on Form S-3 or a similar form allowing forward incorporation by reference, in lieu of the preparation or delivery of any supplement or amendment to such prospectus this clause (D) shall be satisfied by the filing of a Form 8-K, 10-K or 10-Q or a Proxy Statement, or similar applicable filing or an amendment thereto, which such filing is incorporated by reference in relevant part into such prospectus), and in the case of this clause (D) the time period during which such registration statement is required to remain effective shall be extended for the time period during which the use of such prospectus is so suspended;

(vi) use commercially reasonable efforts to obtain and, if obtained, furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Section 2.01 and Section 2.02, on the date that such shares of Registrable Securities are delivered to the underwriters for sale pursuant to such registration or, if such Registrable Securities are not being sold through underwriters, on the date that the registration statement with respect to such shares of Registrable Securities becomes effective, (A) an opinion, dated such date, of counsel to the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holders making such request, in customary form and covering matters of the type customarily covered in such legal opinions and (B) a comfort letter dated such date, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder making such request and, if such accountants refuse to deliver such letter to such Holder, then to the Company, in a customary form and covering matters of the type customarily covered by such comfort letters and as the underwriters or such Holder shall reasonably request;

(vii) enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities;

(viii) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission; and

(ix) use its best efforts to make available to its security holders not later than 18 months after the effective date of the registration statement, an earnings statement covering a period of at least 12 months beginning on a date after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; provided that the Company shall not in any 12-month period be required to make available more than one such earnings statement in addition to the earnings statement contained in its Annual Report on Form 10-K filed with the Commission (it being further understood and agreed that an earnings statement contained in such Annual Report and covering a 12-month period beginning on a date after the effective date of such registration statement shall satisfy this Section 2.03(a)(ix) with respect to such registration statement).

(b) It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Agreement in respect of the Registrable Securities which are to be registered at the request of any Holder that such Holder shall furnish to the Company such information regarding the securities held by such Holder and the intended method of disposition thereof as the Company shall reasonably request and as shall be required in connection with the action taken by the Company.

(c) In the event of any underwritten Public Offering, each Holder shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering.

(d) Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.03(a)(v)(D), such Holder shall immediately discontinue such Holder’s disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.03(a)(v)(D) or the filing with the Commission of an applicable report or other document that is incorporated by reference into the prospectus.

Section 2.04. Registration Expenses.

(a) All expenses incurred in complying with this Agreement, including, without limitation, all registration and filing fees (including all expenses incident to filing with any stock exchange or the Financial Industry Regulatory Authority), printing expenses, fees and disbursements of counsel for the Company, expenses of any special audits incident to or required by any such registration and expenses of complying with the securities or blue sky laws of any jurisdiction pursuant to Section 2.03(a)(iv), shall be paid by the Company, except that:

(i) all such expenses in connection with any amendment or supplement to the registration statement or prospectus filed more than 180 days after the effective date of such registration statement because any Holder has not effected the disposition of the securities requested to be registered shall be paid by such Holder; and

(ii) the Company shall not be liable for any fees, discounts, commissions or other amounts payable to any underwriter or broker or any applicable transfer taxes in respect of the securities sold by such Holder.

(b) In addition, in connection with any underwritten Public Offering of Registrable Securities pursuant to this Agreement, the Company shall also pay the reasonable fees and expenses of one firm of counsel to all of the selling Holders (which firm will be selected by Holders holding a majority of the Registrable Securities being registered).

Section 2.05. Indemnification and Contribution.

(a) In the event of any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall indemnify and hold harmless to the fullest extent permitted by law the Holder of such Registrable Securities, such Holder’s directors and officers, each underwriter who participated in the offering of such Registrable Securities (pursuant to an underwriting agreement with the Company) and each other Person, if any, who controls such Holder within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which such Holder or any such director, officer, underwriter or controlling Person may become subject under the Securities Act or any other statute or at common law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any alleged untrue statement of any material fact contained, on the effective date thereof, in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or (ii) any alleged omission to state therein 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, and shall reimburse such Holder or such director, officer, underwriter or controlling Person for any legal or any other expenses reasonably incurred by such Holder or such director, officer, underwriter or controlling Person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any actual or alleged untrue statement or actual or alleged omission made in such registration statement, preliminary prospectus, prospectus or amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder specifically for use therein or so furnished for such purposes by or on behalf of any underwriter. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or such director, officer, underwriter or controlling Person, and shall survive the transfer of such securities by such Holder.

(b) Each Holder, by acceptance hereof, agrees to indemnify and hold harmless to the fullest extent permitted by law, the Company, its directors and officers and each other Person, if any, who controls the Company within the meaning of the Securities Act and each underwriter (that is party to an underwriting agreement with the Company) against any losses, claims, damages or liabilities, joint or several, to which the Company or any such director or officer or any such Person may become subject under the Securities Act or any other statute or at common law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon information provided in writing to the Company by or on behalf of such Holder specifically for use and contained in any registration statement under which securities were registered under the Securities Act at the request of such Holder, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto. Notwithstanding the provisions of this paragraph (b) or paragraph (d) below, no Holder shall be required to indemnify any Person pursuant to this Section 2.05 or to contribute pursuant to paragraph (d) below in an amount in excess of the amount of the aggregate net proceeds received by such Holder in connection with any such registration under the Securities Act.

(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give such notice shall not limit the rights of such Person, except to the extent the indemnifying party is actually prejudiced thereby) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party has agreed to pay such fees or expenses or (B) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such indemnified party. Regardless of whether such defense is or is not assumed by the indemnifying party as permitted hereunder, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its prior written consent (but such consent will not be unreasonably withheld, delayed or conditioned). If such defense is assumed by the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle or otherwise compromise the applicable claim unless (i) such settlement or compromise contains a full and unconditional release of the indemnified party or (ii) the indemnified party otherwise consents in writing, which consent shall not be unreasonably withheld, delayed or conditioned. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels.

(d) If the indemnification provided for in this Section 2.05 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the 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, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties 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 to state a material fact, has been made by, or relates to information supplied by or on behalf of, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.

(e) The foregoing indemnity agreements of the Company and the Holders are subject to the condition that, insofar as they relate to any violation of the Securities Act or any other statute or at common law made in a preliminary prospectus or any free writing prospectus but eliminated or remedied in the amended prospectus on file with the Commission at the time the registration statement in question becomes effective or the amended prospectus filed with the Commission pursuant to Commission Rule 424(b) (the “Final Prospectus”), such indemnity agreements shall not inure to the benefit of any Person if a copy of the Final Prospectus was furnished to the indemnified party and was not furnished to the Person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act.

(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to Section 2.05(d) were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

Section 2.06. Limitations on Registration Rights. Notwithstanding the other provisions of this Agreement:

(a) the Company shall not be obligated to register the Registrable Securities of any Holder if, in the opinion of counsel to the Company reasonably satisfactory to the Holder and its counsel (or, if the Holder has engaged an investment banking firm, to such investment banking firm and its counsel), the sale or other disposition of such Holder’s Registrable Securities, in the manner proposed by such Holder (or by such investment banking firm), may be effected without registering such Registrable Securities under the Securities Act; except for underwritten offerings pursuant to Section 2.02; and

(b) no Holder may make a request, and the Company shall not be obligated to register the Registrable Securities of any Holder, pursuant to ARTICLE II if the Company has had a registration statement, under which such Holder had a right to have its Registrable Securities included pursuant to ARTICLE II, declared effective within six (6) months prior to the date of the request pursuant to ARTICLE II; provided, however, that if any Holder elected to have shares of its Registrable Securities included under such registration statement but some or all of such shares were excluded pursuant to Section 2.01(c) or the penultimate sentence of Section 2.02(b), then such six (6)-month period shall be reduced to three (3) months.

(c) the Company shall have the right to delay the filing or effectiveness of a registration statement required pursuant to ARTICLE II or to suspend any Holder’s rights to make sales pursuant to any effective registration statement during one or more periods aggregating not more than 120 days in any twelve (12)-month period in the event that (i) the Company would, in accordance with the advice of its counsel, be required to disclose in the prospectus information not otherwise then required by law to be publicly disclosed and (ii) in the judgment of the Company’s board of directors, there is a reasonable likelihood that such disclosure, or any other action to be taken in connection with the prospectus, would materially and adversely affect any existing or prospective material business situation, transaction or negotiation or otherwise materially and adversely affect the Company.

(d) No Person may may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled pursuant to Section 2.07 to select the underwriter(s) with respect to such registration and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, that no Holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding (1) such Holder’s ownership of its Registrable Securities to be sold or transferred, (2) such Holder’s power and authority to effect such Transfer and (3) such matters pertaining to compliance with securities laws as may be reasonably requested) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 2.05.

Section 2.07. Selection of Underwriters. If any Demand Registration is an underwritten offering, the Holders of a majority of the Registrable Securities being so registered will have the right to select the underwriter(s) and manager(s) for such offering, subject to the Company’s approval which shall not be unreasonably withheld, conditioned or delayed. If any offering with respect to which Holders have piggyback rights under Section 2.02 is an underwritten offering, the Company will have the right to select the underwriter(s) and manager(s) for such offering.

ARTICLE III

Termination

The Company shall have no obligations under Section 2.01, Section 2.03 or Section 2.04 with respect to: (a) any request for registration made by any Holder under Section 2.01 after December 31 of the year in which the tenth (10th) anniversary of the closing date of the Company’s initial Public Offering occurs; or (b) any Registrable Securities proposed to be sold by a Holder in a registration pursuant to Section 2.01 if, in the opinion of counsel to the Company, all such Registrable Securities proposed to be sold by a Holder may be sold in a three (3) month period without registration under the Securities Act pursuant to Rule 144 (or any successor rule) under the Securities Act. The rights and obligations of any specific Holder, and of the Company as to such specific Holder, under this Agreement, shall terminate, if earlier, on the date on which such Holder ceases to Beneficially Own any Registrable Securities, except with respect to any rights and obligations relating to any registration of Registrable Securities that was consummated at or prior to the time of such termination. Notwithstanding the foregoing, all liabilities and obligations under Section 2.05 and ARTICLE IV shall remain in effect in accordance with the terms of such provisions.

ARTICLE IV

Miscellaneous

Section 4.01. Remedies. Each Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a material breach by it of the material provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. In any action or proceeding brought to enforce any provision of this Agreement or where any provision hereof is validly asserted as a defense, the successful party shall be entitled to recover reasonable attorneys’ fees in addition to any other available remedy.

Section 4.02. Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departure from the provisions hereof may not be given unless the Company has obtained the written consent of the Majority Holders; provided that if any such amendment, modification, supplement, waiver, consent or departure would adversely affect the rights, preferences or privileges of any Holder disproportionately with respect to the rights, preferences and privileges of the other Holders, such Holder’s consent in writing shall be required.

Section 4.03. Notices. Any notice, approval, consent, request or other communication hereunder shall be given only by, and shall be deemed to have been received upon: (a) registered or certified mail, return receipt requested, on the date on which received as indicated in such return receipt, (b) delivery by a nationally recognized overnight courier, one (1) Business Day after deposit with such courier, (c) facsimile during regular business hours of the recipient, upon electronic confirmation of receipt or (d) email transmission, during regular business hours of the recipient, upon further electronic communication from the recipient acknowledging receipt (whether automatic or manual from recipient), in each case, at the address reflected below or at such other address as such party shall request in a written notice:

(i) If to any Holder, as set forth on its signature page hereto.1

(ii) If to the Company, at

Ener1, Inc.

[1540 Broadway

New York, NY 10036]

Attention: Nicholas Brunero

Telephone: (212) 920-3500 x 104

Facsimile: (212) 920-3510

Email: nbrunero@ener1.com

With a copy to:

Reed Smith LLP

599 Lexington Avenue

New York, NY 10022

Attention: Edward J. Estrada

Telephone: (212) 549-0247

Facsimile: (212) 521-5450

Email: eestrada@reedsmith.com

Section 4.04. Rule 144. So long as the Company is subject to the reporting requirements under the Exchange Act, it shall comply with such requirements so as to permit sales of Registrable Securities by the Holders pursuant to Rule 144 (or any successor rule) under the Securities Act.

Section 4.05. 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 hereto including any Person to whom Registrable Securities are transferred and becomes an Additional Holder in accordance with this Agreement.

Section 4.06. Governing Law; Submission to Jurisdiction; Selection of Forum; WAIVER OF TRIAL BY JURY. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution, termination, performance or nonperformance of this Agreement, shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed in such State, without regard to any conflict of laws principles thereof. Each party hereto agrees that it shall bring any action or proceeding in respect of any claim based upon, arising out of, or related to this Agreement, any provision hereof or any of the transactions contemplated hereby, in the United States District Court for the Southern District of New York or any New York State court sitting in New York County of New York City (the “Chosen Courts”), and solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto. Each party hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY HERETO WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, MATTER OR PROCEEDING BASED UPON, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY PROVISION HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. Service of process on the parties hereto in any action arising out of or relating to this Agreement shall be effective if delivered to the parties in accordance with Section 4.03

1 Note to Bzinfin: Please also provide notice information for an agent for service of process in the U.S. (see signature page).

Section 4.07. Severability. If any provision of this Agreement, as applied to any party or to any circumstance, is held invalid, illegal or unenforceable under applicable law, (a) such provision, as applied to such party or such circumstance, is hereby deemed modified to give effect to the original written intent of the parties hereto to the greatest extent consistent with being valid and enforceable under applicable law, (b) the application of such provision to any other party or to any other circumstance will not be affected or impaired thereby and (c) the validity, legality and enforceability of the remaining provisions of this Agreement will remain in full force and effect.

Section 4.08. Entire Agreement. This Agreement represents the complete agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties hereto with respect to the subject matter hereof.

Section 4.09. Counterparts. This Agreement may be executed and delivered by facsimile, PDF or other electronic transmission in one or more counterparts, each of which will be deemed to be an original, but all of which will be one and the same document.

Section 4.10. Rules of Construction. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: (a) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and, if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day; (b) any reference in this Agreement to $ shall mean U.S. dollars; (c) all Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein and any capitalized terms used in any Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement; (d) words imparting the singular number only shall include the plural and vice versa; (e) the words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires; (f) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (g) the division of this Agreement into Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement; and (h) all references in this Agreement to any “Article” or “Section” are to the corresponding Article or Section of this Agreement unless otherwise specified.

Section 4.11. Third Parties. Nothing in this Agreement, express or implied, is intended to confer upon any Person, other than the parties hereto and their permitted successors and assigns, any rights or remedies under or by reason of this Agreement, except that the provisions of Section 2.05 shall inure to the benefit of the Persons referred to in such Section who are expressly intended to be third party beneficiaries thereof and who may enforce the covenants contained therein.

Section 4.12. Holdback. Each Holder hereby agrees that it shall not, to the extent requested by the Company or an underwriter of securities of the Company, sell or otherwise transfer or dispose of any Registrable Securities or other shares of capital stock of the Company then Beneficially Owned by such Holder (other than to Affiliates, donees, partners, members, or managers of the Holder who agree to be similarly bound) for the seven (7) days prior to and up to ninety (90) days following the effective date of any registration statement of the Company filed on Form S-1 or other “long form” registration under the Securities Act (plus any additional period of time as may be necessary to comply with applicable regulatory requirements, including, without limitation, Financial Industry Regulatory Authority, Inc. Rule 2711(f)(4) and NYSE Rule 472(f)(4)) in connection with the Company’s initial Public Offering after the Effective Date, unless the sale by the Holder is made pursuant to such registration statement. With respect to any offering other than the Company’s initial Public Offering after the Effective Date, each Holder hereby agrees that it shall not, to the extent requested by the Company or an underwriter of securities of the Company, sell or otherwise transfer or dispose of any Registrable Securities or other shares of capital stock of the Company then Beneficially Owned by such Holder (other than to Affiliates, donees, partners, members, or managers of the Holder who agree to be similarly bound) for the seven (7) days prior to and up to ninety (90) days following the effective date of any such registration statement of the Company filed under the Securities Act (other than on Form S-4 or Form S-8 or any successor forms thereto) (plus any additional period of time as may be necessary to comply with applicable regulatory requirements, including, without limitation, Financial Industry Regulatory Authority, Inc. Rule 2711(f)(4) and NYSE Rule 472(f)(4)), unless the sale by the Holder is made pursuant to such registration statement. Each Holder further agrees to enter into any agreement reasonably required by the underwriters or the Company to implement the foregoing within any reasonable timeframe so requested. In order to enforce the “holdback” covenant described in this Section 4.12, the Company shall have the right to place restrictive legends on the certificates representing the shares subject to this Section 4.12 and to impose stop transfer instructions with respect to the Registrable Securities and such other shares of capital stock of each Holder (and the shares or securities of every other Person subject to the foregoing restriction) until the end of each of such periods.

[Signature Page Follows]

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

	COMPANY

	ENER1, INC.

	By:
	Name:
	Title:

[Signature Page to Registration Rights Agreement]

	STOCKHOLDERS

	BZINFIN S.A

	By:
	Name:
	Title:

Notices:

Avocat

Budin & Associés

20, Rue Jean Sénebier

CP 166

1211 Genève 12

Telephone: 022 818 08 08

Facsimile: 022 818 08 15

Email: patrick.bittel@budin.ch

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

Greenberg Traurig, P.A.

333 Avenue of the Americas

(333 S.E. 2nd Avenue)

Miami, Florida 33131

Attention: Andrew E. Balog, Esq.

Telephone: (305) 579-0642

Facsimile: (305) 961-5642

Email: aeb@gtlaw.com

2 Note to Bzinfin: Please also provide notice information for an agent for service of process in the U.S.

[Signature Page to Registration Rights Agreement]

LIBERTY HARBOR SPECIAL INVESTMENTS, LLC

	By:	Goldman Sachs Asset Management, L.P.


		Name:
		Title: Authorized Person

		Notices: 1 American Lane Greenwich, CT 06831 Attention: Thomas Secor and David X. Yu Telephone: (203) 983-2506; (203) 983-2508 Facsimile: (203) 983-2521; (646) 835-3333 Email: thomas.secor@gs.com; david.yu@gs.com

GOLDMAN SACHS PALMETTO STATE CREDIT FUND, L.P.

	By:	Goldman Sachs Asset Management, L.P.


		Name:
		Title: Authorized Person

		Notices: 1 American Lane Greenwich, CT 06831 Attention: Thomas Secor and David X. Yu Telephone: (203) 983-2506; (203) 983-2508 Facsimile: (203) 983-2521; (646) 835-3333 Email: thomas.secor@gs.com; david.yu@gs.com

[Signature Page to Registration Rights Agreement]

WHITEBOX MULTI STRATEGY PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

WHITEBOX CONCENTRATED CONVERTIBLE ARBITRAGE PARTNERS, L.P.

	By:	Goldman Sachs Asset Management, L.P.


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

[Signature Page to Registration Rights Agreement]

PANDORA SELECT PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P.

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

[Signature Page to Registration Rights Agreement]

WHITEBOX SPECIAL OPPORTUNITIES FUND LP, SERIES B

	By:	Whitebox Advisors LLC


		Name:
		Title:

		Notices: 3033 Excelsior Blvd Minneapolis, MN 55416 Attention: Dale Willenbring and Dan Philp Telephone: 612-253-6068; 612-253-6084 Facsimile: 612-253-6001 Email: Dwillenbring@whiteboxadvisors.com; Dphilp@whiteboxadvisors.com

[Signature Page to Registration Rights Agreement]

ITOCHU

By:
Name:
Title:

	Notices:
	Address:	ITOCHU Corporation TOKVU Section 5-1, Kita-Aoyama 2-chome Minato-ku, Tokyo 107-8077 Japan
	Attention:	Hiroaki Murase Mr. and Kunihiro Kawakita Mr. Telephone: +81-3-3497-2659 Facsimile: +81-3-3497-4160 Email: hiro.murase@itochu.co.jp; kawakita-k@itochu.co.jp

[Signature Page to Registration Rights Agreement]

ANNEX 3

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

ENER1, INC.

Pursuant to Section 607.1008 of the Florida Business Corporation Act, Ener1, Inc., a Florida corporation, hereby certifies as follows:

1. The name of the Corporation is Ener1, Inc. (the “Corporation”).

2. The Corporation’s Articles of Incorporation, as originally filed with the Department of State of the State of Florida on January 2, 1985, and as amended through the date hereof, are hereby amended and restated in their entirety by these Amended and Restated Articles of Incorporation.

3. These Amended and Restated Articles of Incorporation have been duly adopted in accordance with Section 607.1008 of the Florida Business Corporation Act (the “Act”) pursuant to the Plan of Reorganization of Ener1, Inc. under Chapter 11 of the United States Bankruptcy Code (11 U.S.C. § 101, et seq., the “Bankruptcy Code”) and the order dated [_____], 2012 of the United States Bankruptcy Court for the Southern District of New York (the “Court”) in In re Ener1, Inc., Case No. [____________] (the “Proceeding”), confirming such plan (the “Confirmation Order”), which Confirmation Order provides for the execution and filing of these Amended and Restated Articles of Incorporation with the Department of State of the State of Florida.

4. The Court had jurisdiction over the Proceeding under the Bankruptcy Code.

5. The undersigned has been authorized to sign these Amended and Restated Articles of Incorporation pursuant to the Confirmation Order.

6. These Amended and Restated Articles of Incorporation will be effective upon their filing with the Department of State of the State of Florida.

7. The Corporation’s Articles of Incorporation are hereby amended and restated in their entirety as follows:

ARTICLE I

NAME AND ADDRESS

The name of this corporation is Ener1, Inc. (the “Corporation”). The address of the principal office and the mailing address of the Corporation is ___________________.

ARTICLE II

PURPOSE

The purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the Florida Business Corporation Act (the “Act”).

ARTICLE III

CAPITAL STOCK

3.1. Common Stock and Preferred Stock

The aggregate number of shares which the Corporation shall have the authority to issue is __________________ (________) shares, comprising (i) __________________ (________) shares of common stock, par value $0.01 per share (“Common Stock”), and (ii) _________________ (_____________) shares of preferred stock, par value $0.01 per share (“Preferred Stock”).

Except as otherwise provided herein or as otherwise required by applicable law, each holder of Common Stock shall have one vote in respect of each share of Common Stock held of record on the books of the Corporation on all matters submitted to a vote for shareholders of the Corporation. Holders of Common Stock are not entitled to cumulate votes in the election of any directors.

Preferred Stock may be designated and issued from time to time in one or more series, each of such series to have such terms as stated or expressed herein and in the resolution or resolutions providing for the designation and issuance of such series adopted by the Board of Directors of the Corporation as hereinafter provided. Authority is hereby expressly granted to the Board of Directors of the Corporation from time to time to designate and issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by resolution or resolutions providing for the designation and issuance of the shares thereof, to determine and fix such voting powers, full or limited, or no voting powers and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations and restrictions thereof, including, without limitation, dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the Act. Without limiting the generality of the foregoing, except as otherwise provided herein or as otherwise required by applicable law, the resolutions providing for the designation and issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to the Preferred Stock of any other series to the extent permitted by the Act. Except as otherwise provided herein or as otherwise required by applicable law, no vote of the holders of Preferred Stock or Common Stock shall be required for the designation and issuance of any shares of any series of Preferred Stock authorized by and complying with the conditions of these Articles of Incorporation.

The Corporation shall not be authorized to issue any non-voting Capital Stock to the extent prohibited by Section 1123(a)(6) of the United States Bankruptcy Code (11 U.S.C. § 101, et seq., the “Bankruptcy Code”); provided that this provision shall have no further force or effect beyond that required by Section 1123 of the Bankruptcy Code.

3.2. Series A Cumulative Convertible Preferred Stock.

(a) Designation. [Eighty Thousand (80,000)] shares of the authorized and unissued Preferred Stock are hereby designated “Series A Cumulative Convertible Preferred Stock” (“Series A Preferred”). The rights, preferences, powers, privileges, restrictions, qualifications, and limitations granted to or imposed upon the shares of Series A Preferred shall be as set forth in this Section 3.2.

(b) Definitions. Capitalized terms used but not defined in this Section 3.2 shall have the respective meanings ascribed thereto elsewhere in these Articles of Incorporation. For purposes of the provisions set forth in this Section 3.2:

(i) “Affiliate” as applied to any Person, means any other Person directly or indirectly through one or more intermediaries controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. For purposes of this definition, a Person shall be deemed to be “controlled by” a Person if such latter Person possesses, directly or indirectly, power to vote 30% or more of the total number of votes of the securities having ordinary voting power for the election of directors of such former Person.

(ii) “Board of Directors” means the Board of Directors of the Corporation.

(iii) “Beneficial Ownership” means, with respect to a specified Person, the ownership of Capital Stock as determined in accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended, as such Rule is in effect and amended from time to time. “Beneficially Own” and “Beneficial Owner” shall each also have the correlative meaning.

(iv) “Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

(v) “Capital Stock” means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however designated) capital stock of the Corporation, including, without limitation, Common Stock and Preferred Stock.

(vi) “Change of Control” means any sale, exchange, transfer or issuance or related series of sales, exchanges, transfers or issuances, of Capital Stock by the Corporation, in which the holders of the Capital Stock immediately prior to any such sale, exchange, transfer or issuance or related series of sales, exchanges, transfers or issuances, no longer hold as of record or retain Beneficial Ownership of in excess of 50% of the outstanding Capital Stock immediately after any such sale, exchange, transfer or issuance or related series of sales, exchanges, transfers or issuances.

(vii) “Conversion Amount” shall have the meaning set forth in Section 3.2(g)(i).

(viii) “Conversion Date” shall have the meaning set forth in Section 3.2(g)(iii)(1).

(ix) “Conversion Notice” shall have the meaning set forth in Section 3.2(g)(iii)(1).

(x) “Conversion Price” means $6.05, subject to adjustment as provided in Section 3.2(g)(v).

(xi) “Dilutive Issuance” shall have the meaning set forth in Section 3.2(g)(v)(5).

(xii) “Exempt Securities” shall have the meaning set forth in Section 3.2(g)(v)(5).

(xiii) “Exercise Period” shall have the meaning set forth in Section 3.2(h)(iii).

(xiv) “Fair Market Value” means, with respect to any asset or property, the price which would be negotiated in an arm’s length transaction, for cash, between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value shall be determined (A) in good faith by the legally adopted vote or consent of the Board of Directors and set forth in duly adopted resolutions of the Board of Directors, or (B) if the Board of Directors is unable or unwilling to determine such value within a period of thirty (30) days immediately following the date on which the Board of Directors is presented with all of the material terms of the relevant transaction, the Fair Market Value shall be determined by an Independent Financial Advisor at the expense of the Corporation.

(xv) “Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness. The term “guarantee” used as a verb has a corresponding meaning.

(xvi) “Holder” means a holder of shares of Series A Preferred, as reflected in the register maintained by the Corporation or the transfer agent for the Series A Preferred.

(xvii) “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:

(1) in respect of borrowed money;

(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); or

(3) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable.

In addition, the term “Indebtedness” includes (A) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person); provided that the amount of such Indebtedness will be the lesser of (x) the Fair Market Value of such asset at such date of determination and (y) the amount of such Indebtedness, and (B) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.

The amount of any Indebtedness outstanding as of any date will be: (i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; and the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.

(xviii) “Independent,” as applied to a Person, means that such Person is in fact deemed independent because such Person (i) does not have any direct material financial interest or any indirect material financial interest in the Corporation or any of its Subsidiaries, or in any Affiliate of the Corporation or any of its Subsidiaries (other than as a result being the Beneficial Owner of less than five percent (5%) of the outstanding Capital Stock or the capital stock, or equivalent equity interests, of any such Subsidiary or Affiliate) and (iii) is not an officer, employee, promoter, trustee, partner, director of, or a Person performing similar functions for, the Corporation or any of its Subsidiaries or any Affiliate of the Corporation or any of its Subsidiaries.

(xix) “Independent Financial Advisor” means a reputable accounting, appraisal or investment banking firm that is, in the reasonable judgment of the Board of Directors, qualified to perform the task for which such firm has been engaged as contemplated hereunder, nationally recognized, Independent and disinterested as to the disposition of the subject task.

(xx) “Issuance Notice” shall have the meaning set forth in Section 3.2(h)(ii).

(xxi) “Issue Date” means the first date on which shares of Series A Preferred are issued.

(xxii) “Junior Securities” shall have the meaning set forth in Section 3.2(c).

(xxiii) “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

(xxiv) “Liquidation Event” means (A) the closing of the sale, transfer, license or other disposition of all or substantially all of the Corporation’s assets, (B) the consummation of a merger or consolidation of the Corporation with or into another entity (except a merger or consolidation in which the holders of Capital Stock immediately prior to consummation of such merger or consolidation continue to Beneficially Own immediately thereafter at least 50% of the voting power of the Capital Stock or the capital stock, or equivalent equity interests, of the surviving or acquiring entity), (C) the acquisition of Beneficial Ownership, in one transaction or a series of related transactions occurring after the Issue Date, by a Person (other than an underwriter of the Corporation’s securities or Bzinfin S.A. (including any Affiliate thereof)) or group of Persons acting in concert, of 50% or more of the outstanding Capital Stock entitled to vote generally in the election of directors of the Corporation, (D) a Change of Control or (E) a liquidation, dissolution or winding up of the affairs of the Corporation. For purposes of this definition, the sale or conveyance (by lease, assignment, transfer or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiaries of the Corporation, the capital stock of which constitutes all or substantially all of the Corporation’s assets, shall be deemed to be the transfer of all or substantially all of the assets of the Corporation.

(xxv) “Organic Change” shall have the meaning set forth in Section 3.2(g)(v)(4).

(xxvi) “Outstanding Common Stock” shall have the meaning set forth in Section 3.2(g)(v)(5).

(xxvii) “Parity Securities” shall have the meaning set forth in Section 3.2(c).

(xxviii) “Person” means any individual, firm, joint venture, corporation, partnership, association, limited liability company or other entity, and shall include any successor (by merger or otherwise) of such entity.

(xxix) “Pre-emptive Pro Rata Portion” shall have the meaning set forth in Section 3.2(h)(iii).

(xxx) “Qualified IPO” means a firmly underwritten public offering of Common Stock at a per share purchase price of not less than $15 (as adjusted for stock splits, stock dividends and similar transactions) which provides proceeds of not less than $50 million before the deduction of underwriters’ commissions and expenses.

(xxxi) “Senior Securities” shall have the meaning set forth in Section 3.2(c).

(xxxii) “Series A Preferred” shall have the meaning set forth in Section 3.2(a).

(xxxiii) “Shareholders Agreement” means that certain Shareholders Agreement, dated as of the Issue Date, by and among the Corporation and the shareholders party thereto, as the same may be amended, restated, supplemented or otherwise modified from time to time.

(xxxiv) “Stated Value” means $1,000 per share of Series A Preferred.

(xxxv) “Subsidiary” means, with respect to any specified Person:

(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

(2) any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) a majority of the general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

(c) Rank. The Series A Preferred, with respect to dividend distributions and distributions upon liquidation, winding up or dissolution of the Corporation, shall rank: (i) senior to all classes of Common Stock and to each other class of Capital Stock existing or hereafter created that are not Senior Securities or Parity Securities (collectively, “Junior Securities”); (ii) on a parity with any class of Capital Stock (other than any Common Stock) hereafter created, the terms of which expressly provide that such class or series will rank on a parity with the Series A Preferred as to voting, redemption, dividend distributions and/or distributions upon liquidation, winding-up or dissolution (collectively, “Parity Securities”), provided that any Parity Securities that were not approved by the Holders in accordance with Section 3.2(j) (if then applicable) shall be deemed to be Junior Securities and not Parity Securities; and (iii) junior to each other class of Capital Stock (other than any Common Stock) hereafter created, the terms of which expressly provide that such class or series will rank senior to the Series A Preferred as to voting, redemption, dividend distributions and/or distributions upon liquidation, winding-up or dissolution of the Corporation (collectively, “Senior Securities”), provided that any such Senior Securities that were not approved by the Holders in accordance with Section 3.2(j) shall be deemed to be Junior Securities and not Senior Securities.

(d) Dividends.

(i) Payment of Dividends. From the Issue Date, Holders shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, dividends on each share of Series A Preferred at a rate per annum equal to 7.0% of the Stated Value. All dividends provided for in this Section 3.2(d)(i) shall be cumulative, whether or not earned or declared, accruing on an annual basis from the Issue Date. All dividends paid with respect to shares of the Series A Preferred pursuant to this Section 3.2(d)(i) shall be paid pro rata to the Holders entitled thereto.

(ii) Unavailability of Funds. In the event that the Corporation shall not have funds legally available for, or is otherwise prohibited by the Act or any other applicable law from, paying any amounts under Section 3.2(d)(i), the obligation to pay such amounts shall be carried forward and fulfilled when such funds are legally available and the Corporation is permitted to do so under the Act or any other applicable law.

(iii) Payment to Holders of Record. Each dividend payable to Holders of Series A Preferred shall be paid to the Holders of record as they appear on the stock books of the Corporation on the applicable record date therefor.

(iv) Limitation on Dividends on Other Capital Stock.

(1) So long as any share of Series A Preferred is outstanding, the Board of Directors shall not declare, pay or set apart for payment any dividend on any Parity Securities, unless full cumulative dividends on the Series A Preferred for all periods terminating on or prior to the date of payment of any such dividend on such Parity Securities either (i) have been paid, (ii) are contemporaneously declared and paid in full or declared and a sum in cash set apart sufficient for such payment or (iii) such payment has been approved as provided in Section 3.2(j). So long as any share of the Series A Preferred is outstanding, the Corporation shall not (except with respect to dividends as permitted by the immediately preceding sentence) make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Parity Securities or any warrants, rights, calls or options exercisable for or convertible into any Parity Securities, whether in cash, obligations or shares of Capital Stock or other property, and shall not permit any Affiliate of the Corporation (other than Bzinfin S.A. or any Affiliate thereof (but not including the Corporation or any Subsidiary thereof)) to purchase or redeem any of the Parity Securities or any such warrants, rights, calls or options.

(2) So long as any share of the Series A Preferred Stock is outstanding, the Board of Directors shall not declare, pay or set apart for payment any dividend on any Junior Securities, or make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Junior Securities, whether in cash, obligations or shares of Capital Stock or other property, and shall not permit any Affiliate of the Corporation (other than any Holder or Affiliate thereof (but not including the Corporation or any Subsidiary thereof) to purchase or redeem any of the Junior Securities or any such warrants, rights, calls or options unless: (1) full cumulative dividends determined in accordance herewith on the Series A Preferred have been paid in full for all periods ended prior to the date of such payment; and (2) such payment has been approved as provided in Section 3.2(j).

(v) Method of Calculation. Dividends on the Series A Preferred shall accrue on the basis of a 360-day year and the actual number of days elapsed.

(e) Liquidation Preference.

(i) Upon the occurrence of a Liquidation Event, Holders shall be entitled to be paid (provided that such cash payment is not then prohibited under the Act, or other applicable law) out of the assets of the Corporation available for distribution to its shareholders for each share of Series A Preferred, an amount in cash equal to the greater of (A) the Stated Value, plus all accrued and unpaid dividends on such share of Series A Preferred to, but not including, the date of the Liquidation Event or (B) the amount for each share of Common Stock the Holders would be entitled to receive pursuant to the Liquidation Event if all of the shares of Series A Preferred had been converted into Common Stock as of the date immediately prior to the date fixed for determination of shareholders entitled to receive a distribution in such Liquidation Event, in each case before any cash distribution shall be made or any other assets distributed in respect of Junior Securities to the holders of any Junior Securities, except that, with respect to clause (B), such distributions shall be made concurrently with those made to holders of Common Stock.

(ii) If upon any Liquidation Event, the amounts payable in respect of the Series A Preferred under clause (A) of Section 3.2(e)(i) above are not paid in full, Holders and the holders of Parity Securities will share equally and ratably in any distribution of assets of the Corporation in proportion to the full amount to which each is entitled upon a Liquidation Event.

(f) Redemption. The Corporation shall not have the right pursuant to this Section 3.2 to redeem any shares of Series A Preferred nor shall any Holder have the right pursuant to this Section 3.2 to cause or require the Corporation to redeem any shares of Series A Preferred.

(g) Conversion Rights; Mechanics; Status of Converted Stock; Adjustments.

(i) Optional Conversion. A Holder of any share of Series A Preferred may at any time and from time to time convert such share into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing (A) an amount equal to the Stated Value plus all accrued and unpaid dividends on such share of Series A Preferred to, but not including, the date of conversion (the “Conversion Amount”) by (B) the Conversion Price then in effect.

(ii) Automatic Conversion. Each outstanding share of Series A Preferred shall be automatically and without any action by any Holder converted into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Conversion Amount by the Conversion Price then in effect upon the earlier to occur of (i) Holders of at least 51% of the then outstanding Series A Preferred consenting to such conversion or (ii) the consummation of a Qualified IPO.

(iii) Mechanics of Conversion.

(1) A Holder who desires to convert any shares of Series A Preferred pursuant to Section 3.2(g)(i) shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or any transfer agent for the Series A Preferred, and shall give written notice to the Corporation at such office that such Holder elects to convert the same (each such notice, a “Conversion Notice”). Each Conversion Notice shall contain the following: (i) the date on which the conversion is to be effected if such date is to be any date after the Corporation’s receipt of the Conversion Notice (such date, as applicable, the “Conversion Date”); (ii) the number of shares of Series A Preferred then owned by the Holder delivering such Conversion Notice; (iii) the number of shares of Series A Preferred to be converted; (iv) the Conversion Price then in effect; (v) the number of shares of Common Stock to be issued to such Holder pursuant to such conversion; and (vi) the address to which the Corporation shall deliver one or more certificates evidencing the Common Stock issuable upon such conversion. Following receipt of such certificate or certificates and such Conversion Notice, the Corporation shall promptly issue and deliver to such Holder, in accordance with such Conversion Notice, (x) one or more certificates evidencing the Common Stock issuable upon such conversion, together with an amount in cash equal to the Fair Market Value of any fractional share of Common Stock otherwise issuable to such Holder upon such conversion, and (y) one or more certificates evidencing any shares of Series A Preferred that such Holder delivered to the Corporation but were not subject of the Conversion Notice. The Person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on the Conversion Date.

(2) Upon the occurrence of either of the events specified in Section 3.2(g)(ii), the outstanding shares of Series A Preferred shall be converted automatically and without any action by any Holders and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided, however, that the Corporation shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Series A Preferred are either delivered to the Corporation or its transfer agent or the Holder thereof notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an affidavit satisfactory to the Corporation containing an agreement to indemnify the Corporation (and, if applicable, its transfer agent) from any loss incurred by it in connection with such certificates. Upon the occurrence of such automatic conversion of the Series A Preferred, each Holder shall surrender the certificates representing such Holder’s shares at the office of the Corporation or any transfer agent for the Series A Preferred. Thereupon, there shall be issued and delivered to such Holder promptly at such office and in its name as shown on such surrendered certificate or certificates, a certificate or certificates for the number of shares of Common Stock into which the shares of Series A Preferred surrendered were convertible on the date on which such automatic conversion occurred, together with an amount in cash equal to the Fair Market Value of any fractional share of Common Stock otherwise issuable to such Holder upon such conversion.

(iv) Status of Converted Stock. If any shares of Series A Preferred are converted pursuant to this Section 3.2(g), then such shares of Series A Preferred so converted shall be canceled and thereupon restored to the status of authorized but unissued Preferred Stock, undesignated as to class or series.

(v) Adjustments to Conversion Price.

(1) Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Issue Date effect a subdivision of the outstanding Common Stock without a corresponding subdivision of the Series A Preferred, then the Conversion Price in effect immediately before such subdivision shall be multiplied by a fraction (i) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such subdivision, and (ii) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately following such subdivision. Conversely, if the Corporation shall at any time or from time to time after the Issue Date combine the outstanding shares of Common Stock into a smaller number of shares without a corresponding combination of the Series A Preferred, then the Conversion Price in effect immediately before the combination shall be multiplied by a fraction (i) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such combination, and (ii) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately following of such combination. Any adjustment pursuant to this Section 3.2(g)(v)(1) shall become effective at the close of business on the date the subdivision or combination becomes effective.

(2) Adjustment for Common Stock Dividends and Distributions. If the Corporation at any time or from time to time after the Issue Date makes, or fixes a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in shares of Common Stock, then, in each such event, the Conversion Price that is then in effect shall be decreased as of the time of such issuance or, in the event such record date is fixed, as of the close of business on such record date, by multiplying the Conversion Price then in effect by a fraction (i) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and (ii) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issued or issuable in payment of such dividend or distribution; provided, however, that if such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, then the Conversion Price shall be recomputed accordingly as of the close of business on such record date, and thereafter the Conversion Price shall be adjusted pursuant to this Section 3.2(g)(v)(2) to reflect the actual payment of such dividend or distribution.

(3) Adjustment for Reclassification, Exchange and Substitution. If at any time or from time to time after the Issue Date the Common Stock issuable upon the conversion of the Series A Preferred is changed into the same or a different number of shares of any class or classes of stock, whether by recapitalization, reclassification or otherwise (other than an acquisition or asset transfer or a subdivision or combination of shares or stock dividend or a reorganization, merger, consolidation or sale of assets provided for elsewhere in this Section 3.2(g)(v)), then in any such event each Holder shall have the right thereafter to convert such Holder’s shares of Series A Preferred into the kind and amount of stock and other securities and property receivable upon such recapitalization, reclassification or other change by holders of the number of shares of Common Stock into which such shares of Series A Preferred could have been converted immediately prior to such recapitalization, reclassification or change, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof.

(4) Reorganizations, Mergers, Consolidations or Sales of Assets. If any capital reorganization, reclassification, recapitalization, consolidation, merger, sale of all or substantially all of the Corporation’s assets or other similar transaction (any such transaction being referred to herein as an “Organic Change”) shall be effected in such a way that holders of Common Stock shall be entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets in respect of or in exchange for their shares of Common Stock, then, as a condition of such Organic Change, lawful and adequate provisions shall be made whereby each Holder shall thereupon have the right to receive, upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately theretofore receivable upon the conversion of such Holder’s shares of Series A Preferred, such shares of stock, securities or assets as may be issued or payable in respect of or in exchange for the number of outstanding shares of Common Stock that would have been immediately theretofore receivable upon conversion of such Holder’s shares of Series A Preferred had such Organic Change not taken place, and in the case of any reorganization or reclassification appropriate provisions shall be made with respect to the rights and interests of such Holder whereby the provisions hereof (including, without limitation, provisions for adjustments to the Conversion Price) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such conversion rights.

(5) Adjustment for Issuances Below Conversion Price. If, after the Issue Date and at such time that the Holders of the shares of Series A Preferred issued on the Issue Date (as such shares may be adjusted for splits or combinations thereof) are not then entitled to elect a majority of the Board of Directors (whether through the beneficial ownership of voting securities of the Corporation, by contract or otherwise), the Corporation issues or sells any shares of Common Stock or is deemed to have issued or sold any shares of Common Stock (including Common Stock deemed to have been issued or sold pursuant to Section 3.2(g)(v)(6)(c) as a result of the issuance of any options, warrants or other convertible securities) for per share consideration (or deemed per share consideration) of less than the Conversion Price then in effect on the date of such issuance or sale (or deemed issuance or sale) (any such issuance or sale or deemed issuance or sale, a “Dilutive Issuance”), then the Conversion Price shall be reduced so that it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such Dilutive Issuance by a fraction, (A) the numerator of which shall be (x) the number of shares of Common Stock issued and outstanding immediately prior to such Dilutive Issuance, plus (y) the number of shares of Common Stock issuable upon exercise or conversion of all of the Corporation’s issued and outstanding Preferred Stock and all warrants, options and other convertible securities exercisable or exchangeable for Common Stock (the sum of the immediately preceding clauses (x) and (y), the “Outstanding Common Stock”), plus (z) the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so issued or sold (or deemed issued or sold) (or the aggregate conversion price or exercise price of the warrants, options or convertible securities so issued or sold (or deemed issued or sold)) in the Dilutive Issuance would purchase at the Conversion Price in effect immediately prior to such Dilutive Issuance, and (B) the denominator of which shall be the Outstanding Common Stock plus the number of shares of Common Stock actually issued or sold (or deemed issued or sold) (or into which the warrants, options or convertible securities so issued or sold (or deemed issued or sold) are convertible) in the Dilutive Issuance; provided, however, that no adjustment shall be made to the Conversion Price pursuant to this Section 3.2(g)(v)(5) as a result of any of the following (all of such being hereinafter referred to as “Exempt Securities”):

(a) the grant of Common Stock or options, warrants or rights to purchase Common Stock to employees, officers, directors or strategic partners of the Corporation and its Subsidiaries under compensation plans and agreements approved in good faith by the Board of Directors; provided that, in the case of options, warrants or rights to purchase Common Stock, the exercise price per share of Common Stock shall not be less than the Fair Market Value per share of Common Stock on the date such option, warrant or other right is issued;

(b) shares of Common Stock issued or issuable to banks, equipment lessors or other financial institutions pursuant to a debt financing or commercial leasing transaction, provided that all of the foregoing shall have been approved in good faith by the Board of Directors; or

(6) Certain Rules. The following rules shall apply for purposes of this Section 3.2(g)(v):

(a) In the case of the issuance or sale (or deemed issuance or sale) of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any discounts, commissions or expenses paid or incurred by the Corporation for any underwriting or otherwise in connection with the issuance and sale thereof;

(b) In the case of the issuance or sale (or deemed issuance or sale) of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be valued at the Fair Market Value thereof; and

(c) In the case of the issuance or sale of options or warrants to purchase or rights to subscribe for Common Stock, securities convertible into or exchangeable for Common Stock, or options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall apply for all purposes of this Section 3.2(g)(v):

(i) The aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercisability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) of such options or warrants to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options, warrants or rights were issued and for consideration equal to the consideration (determined in the manner provided in Sections 3.2(g)(v)(6)(a) and (b)), if any, received by the Corporation upon the issuance of such options, warrants or rights plus the minimum exercise price provided in such options, warrants or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby;

(ii) The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) any such convertible or exchangeable securities or upon the exercise of options or warrants to purchase rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options, warrants or rights were issued and for a consideration equal to the consideration, if any, received by the Corporation for any such securities or options, warrants or rights, plus the minimum additional consideration, if any, to be received by the Corporation (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or upon the exercise of such options, warrants or rights and subsequent conversion or exchange of the underlying convertible or exchangeable securities, as appropriate (the consideration in each case to be determined in the manner provided in Sections 3.2(g)(v)(6)(a) and (b));

(iii) In the event of any change in the number of shares of Common Stock deliverable by the Corporation, or in the consideration payable to the Corporation, upon exercise of such options, warrants or rights with respect to either Common Stock or such convertible or exchangeable securities or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Conversion Price, to the extent in any way affected by or computed using such options, warrants, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options, warrants or rights or the conversion or exchange of such securities;

(iv) Upon the expiration of any such options, warrants or rights with respect to either Common Stock or such convertible or exchangeable securities or the termination of any such rights to convert or exchange, the Conversion Price, to the extent in any way affected by or computed using such options, warrants, rights or securities shall be recomputed to reflect only the number of shares of Common Stock actually issued upon the exercise or conversion, as applicable, of such options, warrants, rights or securities; and

(v) The number of shares of Common Stock deemed issued and the consideration deemed paid therefor pursuant to Sections 3.2(g)(v)(6)(c)(i) and (ii) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in Sections 3.2(g)(v)(6)(c)(iii) or (iv), as applicable.

(7) Certificate of Adjustment. In each case of an adjustment or readjustment of the Conversion Price pursuant to Section 3.2(g)(v), the Corporation, at its expense, shall compute such adjustment or readjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment or readjustment, and shall mail such certificate, by first class mail, postage prepaid, to each Holder at such Holder’s address as shown in the Corporation’s books. The certificate shall set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (i) the consideration received or deemed to be received by the Corporation for any issuance or deemed issuance of Common Stock or other Capital Stock, (ii) the Conversion Price at the time in effect, (iii) the number of shares of Common Stock or other Capital Stock issued or deemed issued and (iv) the type and amount, if any, of other property which at the time would be received upon conversion of the Series A Preferred.

(vi) Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of Series A Preferred. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series A Preferred by a Holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share of Common Stock, then the Corporation shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the Common Stock’s Fair Market Value on the date of conversion.

(vii) Reservation of Common Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series A Preferred, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred, then the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

(viii) Payment of Taxes; Opinions. The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issuance and delivery of shares of Common Stock upon conversion of shares of Series A Preferred; provided, however, that if shares of Common Stock are to be issued in the name of any Person other than the Holder, then such Holder must pay all transfer taxes payable with respect thereto, and shall deliver to the Corporation or its transfer agent such certificates and opinions of counsel as may be reasonably required by the Corporation or its transfer agent, as applicable.

(ix) Closing of Books. The Corporation shall not, nor shall it permit its transfer agent to, close its transfer books against the transfer of any shares of Series A Preferred or of any shares of Common Stock issued or issuable upon the conversion of any shares of Series A Preferred in any manner that interferes with the timely conversion of such shares of Series A Preferred, except as required to comply with applicable laws.

(h) Preemptive Rights.

(i) Grant of Right. If the Corporation shall offer for sale any Capital Stock to any Person, then the Holders shall have the right to purchase their respective Pre-emptive Pro Rata Portion of such Capital Stock, at the price and on the other terms applicable to such offering of Capital Stock, on an as-converted into Common Stock basis; provided, however, that this Section 3.2(h) shall not apply with respect to any Exempt Securities or in connection with a Qualified IPO.

(ii) Notice of Issuance. The Corporation shall deliver to the Holders written notice (an “Issuance Notice”) of any proposed issuance or sale described in Section 3.2(h)(i) on or prior to the fifth (5th) Business Day following any meeting of the Board at which any such issuance or sale is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance, including:

(1) the Capital Stock proposed to be issued and, if applicable, the percentage of the Corporation’s outstanding Common Stock, on a fully diluted basis, that such issuance would represent;

(2) the proposed issuance date, which shall be on or after the twentieth (20th) Business Day immediately following the date of the Issuance Notice; and

(3) the proposed purchase price per share or unit of Capital Stock.

(iii) Each Holder shall have the right, on or prior to the fifteenth (15th) Business Day following the date of the Issuance Notice (the “Exercise Period”), to elect to purchase, at the purchase price set forth in the Issuance Notice, the amount of Capital Stock equal to the product of (A) the total number of shares of Common Stock (or the number of shares of Common Stock into which the Capital Stock subject of the offering is convertible) to be issued by the Corporation on the issuance date and (B) a fraction, (x) the numerator of which is the number of shares of Common Stock into which such Holder’s shares of Series A Preferred is then convertible as of the date of the Issuance Notice and (y) the denominator of which is the total number of shares of Common Stock outstanding on such date immediately prior to such issuance plus the number of shares described in the immediately preceding clause (x) (the “Pre-emptive Pro Rata Portion”) by delivering a written notice to the Corporation. A Holder’s election to purchase its Pre-emptive Pro Rata Portion may be exercised in whole, but not in part, and such election shall be binding and irrevocable. Notwithstanding the foregoing, if the Capital Stock subject to the Issuance Notice is not Common Stock or Capital Stock that is exercisable for or convertible into Common Stock, then the Pre-emptive Pro Rata Portion shall be determined in good faith by the Board of Directors based on the voting power, dividend rights and liquidation preferences, as applicable, of such Capital Stock relative to those of the Series A Preferred for the purpose of the Holders maintaining their respective proportionate ownership of the Capital Stock.

(iv) The Corporation shall be free to complete the proposed issuance or sale of Capital Stock described in the Issuance Notice with respect to any such Capital Stock not elected to be purchased pursuant to Section 3.2(h)(iii) in accordance with the terms and conditions set forth in the Issuance Notice (except that the amount of Capital Stock to be issued or sold by the Corporation may be reduced) so long as such issuance or sale is closed on or prior to the sixtieth (60th) day after the expiration of the Exercise Period (or if such 60th day is not a Business Day, the first Business Day thereafter). If the Corporation has failed to sell such Capital Stock within such time period, then the Corporation shall not thereafter issue or sell such Capital Stock without first again offering such Capital Stock to the Holders in accordance with the procedures set forth in this Section 3.2(h).

(i) Voting Rights.

(i) Except as otherwise provided in this Section 3.2 or as required by applicable law, the Series A Preferred shall vote together with the Common Stock and not as a separate class, at any annual or special meeting of shareholders of the Corporation, and may act by written consent in the same manner as the Common Stock, in either case upon the following basis: each Holder shall be entitled to such number of votes as shall be equal to the whole number of shares of Common Stock into which such Holder’s aggregate number of shares of Series A Preferred are convertible at the close of business on the record date fixed for such meeting or the effective date of such written consent.

(ii) For so long as more than fifty percent (50%) of the shares of Series A Preferred issued on the Issue Date are outstanding, the Holders, voting separately as one class, shall be entitled to elect a majority of the Corporation’s Board of Directors. At any meeting (or in a written consent in lieu thereof) held for the purpose of electing directors, the presence in person or by proxy (or the written consent) of the Holders of at least a majority in interest of the then outstanding shares of Series A Preferred shall constitute a quorum of the Series A Preferred for the election of directors to be elected solely by the Holders. A vacancy in any directorship elected by the Holders shall be filled by vote or written consent of only the Holders of at least a majority in interest of the then outstanding shares of Series A Preferred, consenting or voting, as the case may be, separately as one class.

(j) Protective Provisions. For so long as there is outstanding not less than 35% and not more than 50% of the shares of Series A Preferred issued on the Issue Date, the Corporation shall not, without first obtaining the approval (by vote or written consent) of the Holders of a majority of the then outstanding shares of Series A Preferred:

(i) alter or change the rights, preferences or privileges of the shares of Series A Preferred, including any amendment to these Articles of Incorporation or by merger, consolidation or otherwise;

(ii) increase or decrease the number of authorized shares of Common Stock or Series A Preferred, or create (by reclassification or otherwise) any new series of Capital Stock;

(iii) redeem or repurchase, or take any action that results in the redemption or repurchase of, any Junior Securities, except shares of Common Stock held by the 8.25% Noteholders (as defined in the Shareholders Agreement) pursuant to the put right contained in the Shareholders Agreement;

(iv) consummate, or enter into any agreement in respect of the consummation of, any Liquidation Event;

(v) amend or waive any provision of these Articles of Incorporation, the Corporation’s Bylaws or other organizational documents of the Corporation, or take any other action or enter into any other agreements, which prohibit or materially conflict with the Corporation’s obligations hereunder with respect to the Holders or otherwise adversely affect the Series A Preferred;

(vi) pay or declare any dividend on any Parity Securities or Junior Securities;

(vii) directly, or indirectly through one or more Subsidiaries, create, incur, issue, assume, Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to Indebtedness in excess of $5 million at any one time outstanding;

(viii) acquire or dispose of any material line of the business of either the Corporation or of any direct or indirect Subsidiary of the Corporation;

(ix) form or invest, directly or indirectly through a Subsidiary of the Corporation, in any Subsidiary or other Person not a Subsidiary or Affiliate of the Corporation on the Issue Date;

(x) make aggregate capital expenditures aggregating more than 10% in excess of the Corporation’s aggregate annual budget for all capital expenditures initially approved by the Corporation’s Board of Directors;

(xi) effect any substantial change in the Corporation’s business or the business of any of the Corporation’s direct or indirect Subsidiaries, taken as a whole; or

(xii) increase or decrease the size of the Board of Directors.

(k) No Impairment. The Corporation will not, by amendment of these Articles of Incorporation, its Bylaws or other organizational documents or through any merger, consolidation, reorganization, reclassification, recapitalization, Liquidation Event, issue or sale of Capital Stock or any other voluntary action by the Corporation or any Subsidiary thereof, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed in this Section 3.2 by the Corporation but will at all times in good faith assist in the carrying out of all these provisions, and in the taking of all such action as may be necessary or appropriate in order to protect the conversion and other rights of the Holders set forth in this Section 3.2.

(l) Notice. Unless otherwise provided by applicable law, all notices, requests, demands, and other communications required or permitted in this Section 3.2 shall be in writing and shall be personally delivered, delivered by facsimile or courier service, or mailed, certified with first class postage prepaid, in the case of communications to a Holder, to such Holder’s address set forth on the books of the Corporation, and, in the case of the Corporation, to the principal office of the Corporation with a copy to the President of the Corporation at _____________________, Attention: ______________. Each such notice, request, demand or other communication shall be deemed to have been given and received (whether actually received or not) on the date of actual delivery thereof, if personally delivered or delivered by facsimile transmission (if receipt is confirmed electronically at the time of such transmission), or on the third calendar day following the date of mailing, if mailed in accordance with this Section 3.2(l), or on the day specified for delivery to the courier service (if such day is one on which the courier service will give normal assurances that such specified delivery will be made). Any notice, request, demand or other communication given otherwise than in accordance with this Section 3.2(l) shall be deemed to have been given on the date actually received. The Company may change its address for purposes of this Section 3.2(l) by giving written notice of such change to each Holder in the manner provided in this Section 3.2(l). Any Holder may change its address for purposes of this Section 3.2(l) by giving written notice of such change to the Corporation in the manner provided in this Section 3.2(l). Whenever any notice is required to be given by law or by this Section 3.2, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of notice.

(m) Section References. Section references in this Section 3.2 refer solely to those Sections contained in this Section 3.2.

ARTICLE IV

REGISTERED OFFICE AND AGENT

The street address of the Corporation’s registered office is ______________, and the name of its registered agent at such office is ________________.

ARTICLE V

BOARD OF DIRECTORS

The Board of Directors of the Corporation shall consist of no fewer than five (5) directors and no more than nine (9) directors, with the exact number to be fixed from time to time in the manner provided in the Corporation’s Bylaws. Each of the Corporation’s directors shall serve until such director’s successor is duly elected and qualified, or until such director’s earlier resignation or death.

ARTICLE VI

INDEMNIFICATION

The Corporation shall indemnify each of its officers and directors and each of its former officers and directors to the fullest extent not prohibited by law in existence now or hereafter.

The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against him or her and incurred by him or her 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 liability under the provisions of this Article VI.

ARTICLE VII

EXCULPATION

A director or officer of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability (i) for any breach of the director’s or officer’s duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 607.0834 of the Act as the same exists or hereafter may be amended, (iv) for violation of a criminal law, unless the director or officer had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful or (v) for any transaction from which the director or officer derived an improper personal benefit.

ARTICLE VIII

AFFILIATED TRANSACTIONS

The Corporation expressly elects not to be governed by Section 607.0901 of the Act, as amended from time to time, relating to affiliated transactions.

ARTICLE IX

BYLAWS

The Corporation’s Bylaws may be altered, amended or repealed, and new Bylaws adopted, by the affirmative vote of at least a majority of the members of the Board of Directors then in office or by the affirmative vote of the holders of at least a majority of the voting power of all shares of capital stock of the Corporation then entitled to vote generally in the election of directors, voting as a single class.

ARTICLE X

SHAREHOLDERS AGREEMENT

The Corporation shall not take any actions set forth in Article XI of the Shareholders Agreement (Consent Rights) without the consent required thereunder so long as the provisions thereunder remain in effect.

IN WITNESS WHEREOF, the undersigned has executed these Articles of Incorporation on __________, 2012.

	ENER1, INC.

	By:
	Name:
	Title:

Signature Page to Amended and Restated Articles of Incorporation

Ener1, Inc., a Florida Corporation

ANNEX 4

AMENDED AND RESTATED

BYLAWS

ENER1, INC.

A Florida Corporation

DATED ____________, 2012

INDEX

		Page
		Number

Article I OFFICES		1
1.1	Registered Office	1
1.2	Other Offices	1
Article II MEETINGS OF SHAREHOLDERS		1
2.1	Place	1
2.2	Time of Annual Meeting	1
2.3	Call of Special Meetings	1
2.4	Conduct of Meetings	1
2.5	Notice and Waiver of Notice	2
2.6	Quorum	2
2.7	Voting Per Share	2
2.8	Voting of Shares	3
2.9	Proxies	3
2.10	Shareholder List	4
2.11	Action Without Meeting	4
2.12	Fixing Record Date	4
2.13	Inspectors and Judges	5
Article III DIRECTORS		5
3.1	Number, Election and Term	5
3.2	Vacancies	5
3.3	Powers	6
3.4	Place of Meetings	6

3.5	Annual Meeting	6
3.6	Regular Meetings	6
3.7	Special Meetings and Notice	6
3.8	Quorum; Required Vote; Presumption of Assent	6
3.9	Action Without Meeting	7
3.10	Conference Telephone or Similar Communications Equipment Meetings	7
3.11	Committees	7
3.12	Compensation of Directors	7
3.13	Chairman of the Board	7
Article IV OFFICERS		8
4.1	Required Officers	8
4.2	Appointment of Specified Officers by Board	8
4.3	Appointment of Other Officers	8
4.4	Salaries	8
4.5	Term; Resignation	8
4.6	President	8
4.7	Vice Presidents	8
4.8	Secretary	8
4.9	Treasurer	9
4.10	Other Officers, Employees and Agents	9
Article V CERTIFICATES FOR SHARES		9
5.1	Issue of Certificates	9
5.2	Legends for Preferences and Restrictions on Transfer	9
5.3	Facsimile Signatures	10
5.4	Lost Certificates	10

5.5	Transfer of Shares	10
5.6	Registered Shareholders	10
Article VI GENERAL PROVISIONS		11
6.1	Dividends	11
6.2	Reserves	11
6.3	Checks	11
6.4	Fiscal Year	11
6.5	Seal	11
6.6	Gender	11
Article VII AMENDMENTS OF BYLAWS		11

iii

ENER1, INC.

AMENDED AND RESTATED BYLAWS

Dated _____________, 2012

ARTICLE I

OFFICES

1.1 Registered Office. The registered office of Ener1, Inc., a Florida corporation (the “Corporation”), shall be located at ___________________, and the name of its initial registered agent at such office is ________________, unless otherwise designated by the Corporation’s Board of Directors (the “Board of Directors”).

1.2 Other Offices. The Corporation may also have offices at such other places, either within or without the State of Florida, as the Board of Directors may from time to time determine or as the business of the Corporation may require.

ARTICLE II

MEETINGS OF SHAREHOLDERS

2.1 Place. All annual meetings of shareholders shall be held at such place, within or without the State of Florida, as may be designated by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Special meetings of shareholders may be held at such place, within or without the State of Florida, and at such time as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

2.2 Time of Annual Meeting. Annual meetings of shareholders shall be held on such date and at such time fixed, from time to time, by the Board of Directors, provided that there shall be an annual meeting held every year at which the shareholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting.

2.3 Call of Special Meetings. Special meetings of the shareholders, for any purpose, or purposes, unless otherwise prescribed by statute, may be called by the President and will be called by the President or the Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of shareholders controlling no less than 15% of all of the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. Such request must state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of shareholders will be limited to the purpose or purposes stated in the notice.

2.4 Conduct of Meetings. The Chairman of the Board (or in the absence of the Chairman of the Board, the President or such other designee of the Chairman of the Board or, if the Chairman of the Board does not make a designation, the designee of the Board of Directors) shall preside at the annual and special meetings of shareholders and shall be given full discretion in establishing the rules and procedures to be followed in conducting the meetings, except as otherwise provided by law or in these Bylaws.

2.5 Notice and Waiver of Notice. Except as otherwise provided by law, written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the day of the meeting, either personally (including by phone, voice mail or other electronic means) or by first-class mail, by or at the direction of the President, the Secretary or the officer or person calling the meeting, to each shareholder of record entitled to vote at such meeting. If the notice is mailed at least thirty (30) days before the date of the meeting, it may be done by a class of U.S. mail other than first-class. If mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. If a meeting is adjourned to another time and/or place, and if an announcement of the adjourned time and/or place is made at the meeting, then it shall not be necessary to give notice of the adjourned meeting unless the Board of Directors, after adjournment, fixes a new record date for the adjourned meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether signed before, during or after the time of the meeting stated therein, and delivered to the Corporation for inclusion in the minutes or filing with the corporate records, shall be equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the shareholders need be specified in any written waiver of notice. Attendance of a person at a meeting shall constitute a waiver of (a) lack of or defective notice of such meeting, unless the person objects at the beginning of such meeting to the holding of the meeting or the transacting of any business at the meeting and (b) lack of or defective notice of a particular matter at a meeting that is not within the purpose or purposes described in the meeting notice, unless the person objects to considering such matter when it is presented.

2.6 Quorum. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of these shares exists with respect to that matter. Except as otherwise provided in the Corporation’s Articles of Incorporation, as may be amended from time to time (the “Articles of Incorporation”), or by the Florida Business Corporation Act, as amended (the “FBCA”), a majority of the shares entitled to vote on the matter by each voting group, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, but in no event shall a quorum consist of less than one-third (1/3) of the shares of each voting group entitled to vote. If less than a majority of outstanding shares entitled to vote are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. After a quorum has been established at any shareholders’ meeting, the subsequent withdrawal of shareholders, so as to reduce the number of shares entitled to vote at the meeting below the number required for a quorum, shall not affect the validity of any action taken at the meeting or any adjournment thereof. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting.

2.7 Voting Per Share. Except as otherwise provided in the Articles of Incorporation or by the FBCA, each shareholder is entitled to one (1) vote for each outstanding share held by such shareholder on each matter voted at a shareholders’ meeting. Unless otherwise provided in the Articles of Incorporation, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.

2.8 Voting of Shares. A shareholder may vote at any meeting of shareholders of the Corporation, either in person or by proxy. Shares standing in the name of another corporation, a limited liability company or other entity, domestic or foreign, may be voted by the officer, agent or proxy designated by the bylaws, operating agreement or other relevant governing document of such entity shareholder or, in the absence of any applicable bylaw, operating agreement or other relevant governing document, by such person or persons as the board of directors, board of managers, managing member or other applicable governing body of such entity shareholder may designate. In the absence of any such designation, or, in case of conflicting designation by the entity shareholder, the chairman of the board, managing member, the president, any vice president, the secretary and the treasurer of the entity shareholder shall be presumed to be fully authorized to vote such shares. Shares held by an administrator, executor, guardian, personal representative or conservator may be voted by such person, either in person or by proxy, without a transfer of such shares into such person’s name. Shares standing in the name of a trustee may be voted by such trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by it without a transfer of such shares into such trustee’s name or the name of such trustee’s nominee. Shares held by or under the control of a receiver, a trustee in bankruptcy proceedings, or an assignee for the benefit of creditors may be voted by such person without the transfer thereof into such person’s name. If shares stand of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, then acts with respect to voting shall have the following effect: (a) if only one votes, in person or by proxy, such person’s act binds all; (b) if more than one vote, in person or by proxy, the act of the majority so voting binds all; (c) if more than one vote, in person or by proxy, but the vote is evenly split on any particular matter, each faction is entitled to vote the share or shares in question proportionally; or (d) if the instrument or order so filed shows that any such tenancy is held in unequal interest, a majority or a vote evenly split for purposes hereof shall be a majority or a vote evenly split in interest. The principles of this paragraph shall apply, insofar as possible, to execution of proxies, waivers, consents or objections and for the purpose of ascertaining the presence of a quorum.

2.9 Proxies. Any shareholder of the Corporation, other person entitled to vote on behalf of a shareholder pursuant to applicable law, or attorney-in-fact for such persons may vote the shareholder’s shares in person or by proxy. Any shareholder of the Corporation may appoint a proxy to vote or otherwise act for such shareholder by signing an appointment form, either personally or by such shareholder’s attorney-in-fact. An executed facsimile or other electronically scanned and transmitted document appearing to have been transmitted by such person, or a photographic, photostatic, or equivalent reproduction of an appointment form, shall be deemed a sufficient appointment form. An appointment of a proxy is effective when received by the Secretary or such other officer or agent authorized to tabulate votes, and shall be valid for up to eleven (11) months, unless a longer period is expressly provided in the appointment form. The death or incapacity of the shareholder appointing a proxy does not affect the right of the Corporation to accept the proxy’s authority unless notice of the death or incapacity is received by the Secretary or other officer or agent authorized to tabulate votes before the proxy exercises his authority under the appointment. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest.

2.10 Shareholder List. After fixing a record date for a meeting of shareholders, the Corporation shall prepare an alphabetical list of the names of all its shareholders who are entitled to notice of the meeting, arranged by voting group with the address of, and the number and class and series, if any, of shares held by each. The shareholders’ list must be made available for inspection by any shareholder for a period of ten (10) days prior to the meeting or such shorter time as exists between the record date and the meeting and continuing through the meeting at the Corporation’s principal office, at a place identified in the meeting notice in the city where the meeting will be held, or at the office of the Corporation’s transfer agent or registrar. Any shareholder of the Corporation or such shareholder’s agent or attorney is entitled on written demand to inspect the shareholders’ list (subject to the requirements of law), during regular business hours and at such shareholder’s expense, during the period it is available for inspection. The Corporation shall make the shareholders’ list available at the meeting of shareholders, and any shareholder or such shareholder’s designated agent or attorney is entitled to inspect the list at any time during the meeting or any adjournment thereof.

2.11 Action Without Meeting. Any action required by the Articles of Incorporation or the FBCA to be taken at a meeting of shareholders, or any action that may be taken at a meeting of shareholders, may be taken without a meeting and without notice if a consent in writing, setting forth the action so taken, is dated and signed by the holders of outstanding stock of each voting group entitled to vote thereon, having not less than the minimum number of votes with respect to each voting group that would be necessary to authorize or take such action at a meeting at which all voting groups and shares entitled to vote thereon were present and voted with respect to the subject matter thereof, and such consent shall have the same force and effect as a vote of shareholders taken at such a meeting. Within ten (10) days after obtaining such authorization by written consent, notice shall be given to those shareholders who have not consented in writing or who were not entitled to vote on the action, and otherwise in accordance with the FBCA.

2.12 Fixing Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purposes, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty (60) days, and, in case of a meeting of shareholders, not less than ten (10) days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which the notice of the meeting is mailed or the date on which the resolutions of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this Section 2.12, such determination shall apply to any adjournment thereof, except where the Board of Directors fixes a new record date for the adjourned meeting or as required by law.

2.13 Inspectors and Judges. The Board of Directors in advance of any meeting may, but need not, appoint one or more inspectors of election or judges of the vote, as the case may be, to act at the meeting or any adjournment(s) thereof. If any inspector or inspectors, or judge or judges, are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors or judges. In case any person who may be appointed as an inspector or judge fails to appear or act, the vacancy may be filled by the Board of Directors in advance of the meeting, or at the meeting by the person presiding thereat. The inspectors or judges, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots and consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate votes, ballots and consents, determine the result, and do all such other acts as are proper to conduct the election or vote with fairness to all shareholders. On request of the person presiding at the meeting, the inspector or inspectors or judge or judges, if any, shall make a report in writing of any challenge, question or matter determined by him or them, and execute a certificate of any fact found by him or them.

ARTICLE III

DIRECTORS

3.1 Number, Election and Term. The number of directors of the Corporation shall be fixed from time to time, within the limits specified by the Articles of Incorporation, by resolution of the Board of Directors; provided, however, that no director’s term shall be shortened by reason of a resolution reducing the number of directors. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 3.2, and each director elected shall hold office for the term for which such director is elected and until such director’s successor is duly elected and qualified or until such director’s earlier resignation, removal from office or death. Directors must be natural persons who are 18 years of age or older but need not be residents of the State of Florida, shareholders of the Corporation or citizens of the United States. Any director may be removed at any time, with or without cause, at a special meeting of the shareholders called for that purpose.

3.2 Vacancies. A director may resign at any time by giving written notice to the Corporation, the Board of Directors or the Chairman of the Board. Such resignation shall take effect when the notice is delivered unless the notice specifies a later effective date, in which event the Board of Directors may fill the pending vacancy before the effective date if they provide that the successor does not take office until the effective date. Unless otherwise provided in the Articles of Incorporation, the shareholders of the Corporation may remove one or more directors with or without cause according to the procedures set forth in Article II. Any vacancy occurring in the Board of Directors and any directorship to be filled by reason of an increase in the size of the Board of Directors shall be filled by the affirmative vote of a majority of the current directors though less than a quorum of the Board of Directors, or may be filled by an election at an annual or special meeting of the shareholders called for that purpose, unless otherwise provided by the Articles of Incorporation or the FBCA. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office, or until the next election of one or more directors by shareholders if the vacancy is caused by an increase in the number of directors.

3.3 Powers. Except as provided in the Articles of Incorporation and the FBCA, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, its Board of Directors.

3.4 Place of Meetings. Meetings of the Board of Directors, regular or special, may be held either within or without the State of Florida.

3.5 Annual Meeting. The first meeting of each newly elected Board of Directors shall be held, without call or notice, immediately following each annual meeting of shareholders.

3.6 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time, at such place and for such purposes as shall from time to time be determined by the Board of Directors.

3.7 Special Meetings and Notice. 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 a majority of the members of the Board of Directors then in office. Written notice of special meetings of the Board of Directors shall be given to each director at least twenty-four (24) hours before the meeting. Except as required by the FBCA, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Notices to directors shall be in writing and delivered personally or mailed to the directors at their addresses appearing on the books of the Corporation. Notice by mail shall be deemed to be given at the time when the same shall be received. Notice to directors may also be given by facsimile, email or other form of electronic communication. Notice of a meeting of the Board of Directors need not be given to any director who signs a written waiver of notice before, during or after the meeting. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting and a waiver of any and all objections to the place of the meeting, the time of the meeting and the manner in which it has been called or convened, except when a director states, at the beginning of the meeting or promptly upon arrival at the meeting, any objection to the transaction of business because the meeting is not lawfully called or convened.

3.8 Quorum; Required Vote; Presumption of Assent. A majority of the number of directors fixed by, or in the manner provided in, these Bylaws shall constitute a quorum for the transaction of business; provided, however, that whenever, for any reason, a vacancy occurs in the Board of Directors, a quorum shall consist of a majority of the remaining directors until the vacancy has been filled. The act of a majority of the directors present at a meeting at which a quorum is present when the vote is taken shall be the act of the Board of Directors. A director of the Corporation who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken shall be presumed to have assented to the action taken, unless such director objects at the beginning of the meeting, or promptly upon his arrival, to holding the meeting or transacting specific business at the meeting, or he votes against or abstains from the action taken.

3.9 Action Without Meeting. Any action required or permitted to be taken at a meeting of the Board of Directors or a committee thereof may be taken without a meeting if a consent in writing, setting forth the action taken, is signed by all of the members of the Board of Directors or the committee, as the case may be, and such consent shall have the same force and effect as a unanimous vote at a meeting. Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date. A consent signed under this Section 3.9 shall have the effect of a meeting vote and may be described as such in any document.

3.10 Conference Telephone or Similar Communications Equipment Meetings. Members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone, video conference or web conference or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time. Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground the meeting is not lawfully called or convened.

3.11 Committees. The Board of Directors, by resolution adopted by a majority of the full Board of Directors, may designate from among its members an executive committee and one or more other committees, each of which, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors in the business and affairs of the Corporation, except where the action of the full Board of Directors is required by the FBCA. Each committee must have two or more members who serve at the pleasure of the Board of Directors. The Board of Directors, by resolution adopted in accordance with this Article Three, may designate one or more directors as alternate members of any committee, who may act in the place and stead of any absent member or members at any meeting of such committee. Vacancies in the membership of a committee shall be filled by the Board of Directors at a regular or special meeting of the Board of Directors. Any committee formed pursuant to this Section 3.11 shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. The designation of any such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him by law.

3.12 Compensation of Directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director, such amount to be fixed by the Board of Directors. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

3.13 Chairman of the Board. The Board of Directors may, in its discretion, choose a chairman of the board who shall preside at meetings of the shareholders and of the directors. The Chairman of the Board shall have such other powers and shall perform such other duties as shall be designated by the Board of Directors. The Chairman of the Board shall serve until a successor Chairman of the Board is chosen and qualified, but any Chairman of the Board may be removed as Chairman of the Board at any time by the affirmative vote of a majority of the Board of Directors.

ARTICLE IV

OFFICERS

4.1 Required Officers. The Corporation shall have a President, a Treasurer and a Secretary. Any two or more offices may be held by the same person.

4.2 Appointment of Specified Officers by Board. The Board of Directors at its first meeting and after each annual meeting of shareholders shall appoint the officers of the Corporation.

4.3 Appointment of Other Officers. Such other officers and assistant officers and agents as may be deemed necessary or appropriate may be appointed by the Board of Directors, including, but not limited to, a Chief Executive Officer, Chief Financial Officer and one or more vice presidents.

4.4 Salaries. The salaries of all officers of the Corporation shall be fixed from time to time by the Board of Directors or pursuant to its discretion.

4.5 Term; Resignation. The officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation, removal or death. Any officer or agent elected or appointed by the Board of Directors may be removed, with or without cause, by the Board of Directors. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise shall be filled by the Board of Directors. Any officer of the Corporation may resign from his respective office or position by delivering notice to the Corporation or the Board of Directors. Such resignation is effective when delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date and the Corporation or Board of Directors accepts the future effective date, then the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date.

4.6 President. The President shall 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. In the absence of the Chairman of the Board or in the event the Board of Directors shall not have designated a Chairman of the Board, the President shall preside at meetings of the shareholders and the Board of Directors.

4.7 Vice Presidents. The Vice Presidents in the order of their seniority, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President. They shall perform such other duties and have such other powers as the Board of Directors shall prescribe or as the President may from time to time delegate.

4.8 Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and record all the proceedings of the meetings of the shareholders and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. He shall keep in safe custody the seal of the Corporation and, when authorized by the Board of Directors, affix the same to any instrument requiring it.

4.9 Treasurer. The Treasurer shall have the custody of corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. Unless otherwise specified by the Board of Directors, the Treasurer shall be the Corporation’s Chief Financial Officer.

4.10 Other Officers, Employees and Agents. Each and every other officer, employee and agent of the Corporation shall possess, and may exercise, such power and authority, and shall perform such duties, as may from time to time be assigned to him by the Board of Directors, the officer so appointing him (pursuant to authority granted to such officer by the Board of Directors) and such officer or officers who may from time to time be designated by the Board of Directors to exercise such supervisory authority.

ARTICLE V

CERTIFICATES FOR SHARES

5.1 Issue of Certificates. The Corporation shall deliver certificates representing all shares to which shareholders are entitled; and such certificates shall be signed by the Chairman of the Board, President or a Vice President, and by the Secretary or an Assistant Secretary of the Corporation, and may be sealed with the seal of the Corporation or a facsimile thereof.

5.2 Legends for Preferences and Restrictions on Transfer. The designations, relative rights, preferences and limitations applicable to each class of shares and the variations in rights, preferences and limitations determined for each series within a class (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the Corporation will furnish the shareholder a full statement of this information on request and without charge. Every certificate representing shares that are restricted as to the sale, disposition, or transfer of such shares shall also indicate that such shares are restricted as to transfer and there shall be set forth or fairly summarized upon the certificate, or the certificate shall indicate that the Corporation will furnish to any shareholder upon request and without charge, a full statement of such restrictions. If the Corporation issues any shares that are not registered under the Securities Act of 1933, as amended, unless exempt from such registration and not subject to restrictions on transfer pursuant to such Act, and registered or qualified under the applicable state securities laws, the transfer of any such shares shall be restricted substantially in accordance with the following legend, so long as such shares are subject to such restrictions:

“THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION THEREUNDER OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.”

5.3 Facsimile Signatures. The signatures of the Chairman of the Board, the President or a Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles, if the certificate is manually signed by a transfer agent, or registered by a registrar, other than the Corporation itself or an employee of the Corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of the issuance.

5.4 Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/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 alleged to have been lost or destroyed.

5.5 Transfer of Shares. 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, subject to applicable securities laws.

5.6 Registered Shareholders. The Corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and 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 Florida.

ARTICLE VI

GENERAL PROVISIONS

6.1 Dividends. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in cash, property, or its own shares pursuant to law and subject to the provisions of the Articles of Incorporation.

6.2 Reserves. The Board of Directors may by resolution create a reserve or reserves out of earned surplus for any proper purpose or purposes, and may abolish any such reserve in the same manner.

6.3 Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

6.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of Directors and may be otherwise changed from time to time by resolution of the Board of Directors.

6.5 Seal. The corporate seal shall have inscribed thereon the name and state of incorporation of the Corporation. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

6.6 Gender. All words used in these Bylaws in the masculine gender shall extend to and shall include the feminine and neuter genders.

ARTICLE VII

AMENDMENTS OF BYLAWS

Unless otherwise provided by law, these Bylaws may be altered, amended or repealed, and new Bylaws adopted, by the affirmative vote of at least a majority of the members of the Board of Directors then in office or by the affirmative vote of the holders of at least a majority of the voting power of all shares of capital stock of the Corporation then entitled to vote generally in the election of directors, voting as a single class.

ANNEX 5

LOAN AGREEMENT

dated as of [__________ ___], 2012

among

ENER1, INC.,

as Borrower

CERTAIN SUBSIDIARIES OF ENER1, INC.,

as Guarantors

VARIOUS LENDERS,

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent,

$[_____________] Term Loan

TABLE OF CONTENTS

		Page

SECTION 1.	DEFINITIONS AND INTERPRETATION	1

1.1	Definitions	1
1.2	Accounting Terms	21
1.3	Interpretation, Etc	21

SECTION 2.	TERM LOANS	21

2.1	Term Loans	21
2.2	Use of Proceeds	21
2.3	Evidence of Debt; Register; Lenders’ Books and Records; Notes	21
2.4	Interest on Term Loans	22
2.5	Default Interest	23
2.6	Fees	23
2.7	Scheduled Payments	23
2.8	Voluntary Prepayments	24
2.9	Mandatory Prepayments	24
2.10	Application of Prepayments	25
2.11	General Provisions Regarding Payments	25
2.12	Ratable Sharing	27
2.13	Taxes; Withholding, Etc	27
2.14	Obligation to Mitigate	30
2.15	Removal or Replacement of a Lender	30

SECTION 3.	CONDITIONS PRECEDENT	31

3.1	Conditions Precedent	31

SECTION 4.	REPRESENTATIONS AND WARRANTIES	35

4.1	Organization; Requisite Power and Authority; Qualification	35
4.2	Equity Interests and Ownership	36
4.3	Due Authorization	36
4.4	No Conflict	36
4.5	Governmental Consents	36
4.6	Binding Obligation	36
4.7	[Intentionally Omitted]	36
4.8	Projections	37
4.9	Adverse Proceedings, Etc	37
4.10	Payment of Taxes	37
4.11	Properties	37
4.12	Environmental Matters	38
4.13	No Defaults	38
4.14	Material Contracts	38
4.15	Governmental Regulation	38
4.16	Federal Reserve Regulations; Exchange Act	38

TABLE OF CONTENTS

(continued)

		Page

4.17	Employee Matters	39
4.18	Employee Benefit Plans	39
4.19	Certain Fees	39
4.20	Solvency	39
4.21	Compliance with Statutes, Etc	40
4.22	Disclosure	40
4.23	PATRIOT Act	40

SECTION 5.	AFFIRMATIVE COVENANTS	40

5.1	Financial Statements and Other Reports	40
5.2	Existence	43
5.3	Payment of Taxes and Claims	43
5.4	Maintenance of Properties	43
5.5	Insurance	44
5.6	Books and Records; Inspections	44
5.7	Compliance with Laws	44
5.8	Environmental	44
5.9	Subsidiaries	45
5.10	Additional Material Real Estate Assets	46
5.11	Further Assurances	46

SECTION 6.	NEGATIVE COVENANTS	46

6.1	Indebtedness	46
6.2	Liens	50
6.3	No Further Negative Pledges	51
6.4	Restricted Junior Payments	52
6.5	Restrictions on Subsidiary Distributions	52
6.6	Investments	52
6.7	Minimum Liquidity	53
6.8	Fundamental Changes; Disposition of Assets; Acquisitions	53
6.9	Disposal of Subsidiary Interests	54
6.10	Sales and Lease-Backs	54
6.11	Transactions with Shareholders and Affiliates	55
6.12	Conduct of Business	55
6.13	Amendments or Waivers of Organizational Documents and Certain Related Agreements	55

SECTION 7.	GUARANTY	55

7.1	Guaranty of the Obligations	55
7.2	Contribution by Guarantors	56
7.3	Payment by Guarantors	56
7.4	Liability of Guarantors Absolute	56

TABLE OF CONTENTS

(continued)

		Page

7.5	Waivers by Guarantors	58
7.6	Guarantors’ Rights of Subrogation, Contribution, Etc	59
7.7	Subordination of Other Obligations	59
7.8	Continuing Guaranty	59
7.9	Authority of Guarantors or Borrower	59
7.10	Financial Condition of Borrower	59
7.11	Bankruptcy, Etc	60
7.12	Discharge of Guaranty Upon Sale of Guarantor	60

SECTION 8.	EVENTS OF DEFAULT	60

8.1	Events of Default	60

SECTION 9.	AGENTS	63

9.1	Appointment of Agents	63
9.2	Powers and Duties	64
9.3	General Immunity	64
9.4	Agents Entitled to Act as Lender	65
9.5	Lenders’ Representations, Warranties and Acknowledgment	65
9.6	Right to Indemnity	66
9.7	Successor Administrative Agent and Collateral Agent	66
9.8	Collateral Documents and Guaranty	68
9.9	Withholding Taxes	69
9.10	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim	69

SECTION 10.	MISCELLANEOUS	70

10.1	Notices	70
10.2	Expenses	71
10.3	Indemnity	72
10.4	Set-Off	73
10.5	Amendments and Waivers	73
10.6	Successors and Assigns; Participations	74
10.7	Independence of Covenants	77
10.8	Survival of Representations, Warranties and Agreements	77
10.9	No Waiver; Remedies Cumulative	78
10.10	Marshalling; Payments Set Aside	78
10.11	Severability	78
10.12	Obligations Several; Independent Nature of Lenders’ Rights	78
10.13	Headings	78
10.14	APPLICABLE LAW	78
10.15	CONSENT TO JURISDICTION	79
10.16	WAIVER OF JURY TRIAL	79

iii

TABLE OF CONTENTS

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		Page

10.17	Confidentiality	80
10.18	Usury Savings Clause	80
10.19	Effectiveness; Counterparts	81
10.20	PATRIOT Act	81
10.21	Electronic Execution of Assignments	81
10.22	No Fiduciary Duty	81

APPENDICES:	A	Term Loans
	B	Notice Addresses

SCHEDULES:	3.1(i)	Closing Date Mortgaged Properties
	4.1	Jurisdictions of Organization and Qualification
	4.2	Equity Interests and Ownership
	4.11	Real Estate Assets
	4.14	Material Contracts
	6.1	Certain Indebtedness
	6.2	Certain Liens
	6.3	Certain Negative Pledges
	6.5	Certain Restrictions on Subsidiary Distributions
	6.6	Certain Investments
	6.11	Certain Affiliate Transactions

EXHIBITS:	A	Note
	B	Assignment Agreement
	C	Closing Date Certificate
	D	Counterpart Agreement
	E	Certificate of Non-Bank Status
	F	Collateral Agreement
	G	Landlord Personal Property Collateral Access Agreement
	H	Intercompany Note
	I	Fixed Charge Coverage Ratio Certificate

LOAN AGREEMENT

This LOAN AGREEMENT, dated as of [_________ __,] 2012 is entered into by and among ENER1, INC., a Florida corporation (“Borrower”), the Lenders party hereto from time to time, WILMINGTON TRUST NATIONAL ASSOCIATION, a national banking association (“Wilmington”), as Administrative Agent (together with its permitted successors in such capacity, “Administrative Agent”) and as Collateral Agent (together with its permitted successor in such capacity, “Collateral Agent”).

RECITALS:

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;

WHEREAS, Borrower has issued (a) the 8.25% Senior Notes due July 1, 2013 (Tranche A) (the “Tranche A Notes”) and (b) the 8.25% Senior Notes due July 1, 2013 (Tranche B) (the “Tranche B Notes” and, together with the Tranche A Notes, the “8.25% Notes”) in favor of the Lenders listed on Annex A (each of the foregoing, individually, a “Holder” and, collectively, the “Holders”).

WHEREAS, as part of the comprehensive financial restructuring to be implemented pursuant to the Plan, the Holders, in satisfaction of $ [______] of the principal amount of obligations owing to them under the 8.25% Notes and accrued and unpaid interest thereof, as of the Effective Date, agreed to receive, among other things, interests in a senior secured term loan of Borrower in an aggregate principal amount of $[_______] on the terms and conditions set forth herein.

WHEREAS, Borrower has agreed to secure all of its Secured Obligations, including its Obligations hereunder, the Holders Plan Payments and the Itochu Plan Payments (each as defined below), by granting to Collateral Agent, for the benefit of Secured Parties, Liens on substantially all of its assets; and

WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder, the Holders Plan Payments and the Itochu Plan Payments, and to secure their respective Secured Obligations by granting to Collateral Agent, for the benefit of Secured Parties, Liens on certain of their respective assets.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. DEFINITIONS AND INTERPRETATION

1.1 Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:

“ABMI Program” means that certain grant program maintained by the U.S. Department of Energy entitled “Automotive Battery Manufacturing Initiative” under which EnerDel has been awarded a grant of up to $118,500,000.

“Acquisition” as defined in the definition of Permitted Acquisition.

“Acquisition Consideration” means the purchase consideration for any Permitted Acquisition and all other payments by Borrower or any of its Subsidiaries in exchange for, or as part of, or in connection with, any Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business.

“Administrative Agent” as defined in the preamble hereto.

“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower or any of its Material Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Borrower or any of its Material Subsidiaries, threatened against or affecting Borrower or any of its Material Subsidiaries or any property of Borrower or any of its Material Subsidiaries.

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.

“Agent” means each of (i) Administrative Agent, (ii) Collateral Agent and (iii) any other Person appointed under the Credit Documents to serve in an agent or similar capacity.

“Agent Affiliates” as defined in Section 10.1(b)(iii).

“Agent Fee Letter” means that certain letter, dated as of the date hereof, between Wilmington and Borrower with respect to fees to be paid from time to time by Borrower to Wilmington.

“Aggregate Amounts Due” as defined in Section 2.17.

“Aggregate Payments” as defined in Section 7.2.

“Agreement” means this Loan Agreement, dated as of __________, 2012 as it may be amended, restated, supplemented or otherwise modified from time to time.

“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Credit Party provides to Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to Agents or Lenders by means of electronic communications pursuant to Section 10.1(b).

“Articles of Incorporation” means the Amended and Restated Articles of Incorporation adopted under and filed pursuant to the Plan with the Department of State of the State of Florida on the Effective Date.

“Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, license (as licensor or sublicensor), transfer or other disposition to, or any exchange of property with, any Person (other than Borrower or any Guarantor), in one transaction or a series of transactions, of all or any part of Borrower’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including the Equity Interests of any of Borrower’ Subsidiaries, other than (i) inventory sold, leased or licensed in the ordinary course of business (excluding any such sales, leases or licenses out by operations or divisions discontinued or to be discontinued), (ii) Cash Equivalents, (iii) sales, assignments or dispositions of accounts in the ordinary course of business for the purpose of collection, (v) nonexclusive licenses of patents, trade secrets, know-how and other intellectual property in the ordinary course of business, (v) exclusive licenses for a defined territory (such as the Russian Federation or the People’s Republic of China) to the extent each such license constitutes Borrower’s or any of its Subsidiaries’ capital contribution in whole or in part to any Joint Venture, (vi) the sale of account receivables and/or inventory of Borrower and its Subsidiaries in connection with a factoring for aggregate consideration not to exceed $20,000,000 minus the usage of Indebtedness permitted under Section 6.1(k) at any time, (vii) the sale of account receivables and/or inventory of Ener1 Korea in connection with a factoring for aggregate consideration not to exceed the applicable amount of Indebtedness permitted under Section 6.1(n) at the time of determination minus the usage of Indebtedness permitted under Section 6.1(n) at such time, and (viii) other sales, leases, licenses or other dispositions of assets, businesses or properties of any nature for aggregate consideration of less than $1,000,000 in the aggregate during any Fiscal Year.

“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit C, with such amendments or modifications as may be approved by Administrative Agent.

“Assignment Effective Date” as defined in Section 10.6(b).

“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, vice president (or the equivalent thereof), chief financial officer or treasurer of such Person; provided that the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to Administrative Agent as to the authority of such Authorized Officer.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York.

“Beneficial Ownership” means, with respect to a specified Person, the ownership of voting Equity Interests of the Borrower as determined in accordance with Rule 13d-3 of the Exchange Act, as amended, as such Rule is in effect and amended from time to time. “Beneficially Own” and “Beneficial Owner” shall each also have the correlative meaning.

“Beneficiary” means (i) each Agent, (ii) each Lender, (iii) solely with respect to the Holders Plan Payments, each Holder, and (iv) solely with respect to the Itochu Plan Payments, Itochu.

“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.

“Borrower” as defined in the preamble hereto.

“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close.

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

“Cash” means money, currency or a credit balance in any demand or Deposit Account.

“Cash Equivalents” means, as at any date of determination, any of the following: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no more than three months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.

“Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit E.

“Change of Control” means (a) the consummation of a merger or consolidation of Borrower with or into another entity (except a merger or consolidation in which the holders of Borrower’s outstanding Stock immediately prior to such merger or consolidation continue to Beneficially Own immediately thereafter at least 50% of the voting power of Stock or the capital stock, or equivalent equity interests, of the surviving or acquiring entity (or its parent entity if the surviving entity is wholly owned by the parent entity), (b) a sale, lease or other disposition of all or substantially all of the assets of Borrower and its Subsidiaries on a consolidated basis (including securities of Borrower’s directly or indirectly owned subsidiaries), other than a sale, lease or other disposition to an Affiliate of the Borrower or to Bzinfin or its Affiliates, (c) such time that Bzinfin, together with its Affiliates, including any Permitted Transferee as a result of a Permitted Transfer under clauses (b), (c) or (e) of the definition thereof, cease to possess the power to elect a majority of the members of the Board of Directors of Borrower or (d) such time that Bzinfin and its Affiliates, including any Permitted Transferee as a result of a Permitted Transfer under clauses (b), (c) or (e) of the definition thereof, shall cease to Beneficially Own, in the aggregate, at least 35% of the outstanding shares of the Stock on an as converted basis into New Common Stock.

“Closing Date” as defined in Section 3.1.

“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit D.

“Closing Date Mortgaged Property” as defined in Section 3.1(g)(i).

“Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.

“Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that provides information with respect to the personal or mixed property of each Credit Party.

“Collateral Agent” as defined in the preamble hereto.

“Collateral Agreement” means the Collateral Agreement to be executed by Borrower and each Guarantor substantially in the form of Exhibit F, as it may be amended, restated, supplemented or otherwise modified from time to time.

“Collateral Documents” means the Collateral Agreement, the Mortgages, the Trademark Security Agreement, the Patent Security Agreement, the Landlord Personal Property Collateral Access Agreements, if any, and all other instruments, documents and agreements delivered by or on behalf of any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.

“Consolidated Adjusted EBITDA” means, for any period, an amount determined for Borrower and its Material Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income, plus, to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for (a) consolidated interest expense, (b) provisions for taxes based on income, (c) total depreciation expense, (d) total amortization expense, (e) other non-Cash charges reducing Consolidated Net Income (excluding any such non-Cash charge to the extent that it represents an accrual or reserve for potential Cash charge in any future period or amortization of a prepaid Cash charge that was paid in a prior period) and (f) operating expenses that qualify for reimbursement under the ABMI Program, minus (ii) other non-Cash gains increasing Consolidated Net Income for such period (excluding any such non-Cash gain to the extent it represents the reversal of an accrual or reserve for potential Cash gain in any prior period).

“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures of Borrower and its Material Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items, or which should otherwise be capitalized, reflected in the consolidated statement of cash flows of Borrower and its Material Subsidiaries; provided that Consolidated Capital Expenditures shall not include any expenditures (i) for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with Net Insurance/Condemnation Proceeds invested pursuant to Section 2.9(b) or (ii) that qualify for reimbursement under the ABMI Program.

“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the amounts determined for Borrower and its Material Subsidiaries on a consolidated basis equal to (i) Consolidated Interest Expense, (ii) scheduled payments of principal on Consolidated Total Debt, (iii) Consolidated Capital Expenditures and (iv) the portion of taxes based on income actually paid in cash and provisions for cash income taxes.

“Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Borrower and its Material Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of Borrower and its Material Subsidiaries, excluding, however, any amount not payable in Cash.

“Consolidated Net Income” means, for any period, (i) the net income (or loss) of Borrower and its Material Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person (other than a Material Subsidiary of Borrower) in which any other Person (other than Borrower or any of its Material Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to Borrower or any of its Material Subsidiaries by such Person during such period, (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Borrower or is merged into or consolidated with Borrower or any of its Material Subsidiaries or that Person’s assets are acquired by Borrower or any of its Material Subsidiaries, (c) the income of any Material Subsidiary of Borrower to the extent that the declaration or payment of dividends or similar distributions by that Material Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Material Subsidiary, (d) any after-tax gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, (e) the income (or loss) attributable to the early extinguishment of Indebtedness and (f) (to the extent not included in clauses (a) through (e) above) any net extraordinary gains or net extraordinary losses.

“Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Borrower and its Material Subsidiaries (or, if higher, the par value or stated face amount of all such Indebtedness (other than zero coupon Indebtedness), net of any restricted Cash of Borrower or any Material Subsidiary securing payment of any portion of such Indebtedness, determined on a consolidated basis in accordance with GAAP.

“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

“Contributing Guarantors” as defined in Section 7.2.

“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit E delivered by a Credit Party pursuant to Section 5.19.

“Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents. the Agent Fee Letter and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Credit Party for the benefit of any Agent or any Lender in connection herewith on or after the date hereof.

“Credit Party” means each Person (other than any Agent or any Lender or any other representative thereof) from time to time party to a Credit Document.

“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), in whole or in part, (iii) provides for the scheduled payments or dividends in cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date.

“Dollars” and the sign “$” mean the lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.

“Effective Date” has the meaning assigned to that term in the Plan.

“Eligible Assignee” means any Person other than a natural Person that is (i) a Lender, an affiliate of any Lender or a Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), or (ii) a commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act); provided, no Credit Party or any Subsidiary of a Credit Party shall be an Eligible Assignee.

“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates.

“EnerDel” means EnerDel, Inc., a Delaware corporation.

“Ener1 Korea” means Ener1 Korea, Inc., a Korean company.

“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.

“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Borrower or any of its Subsidiaries or any Facility.

“Equity Commitment Agreement” has the meaning assigned to that term in the Plan.

“Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of Borrower or any of its Material Subsidiaries shall continue to be considered an ERISA Affiliate of Borrower or any such Material Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Borrower or such Material Subsidiary and with respect to liabilities arising after such period for which Borrower or such Material Subsidiary could be liable under the Internal Revenue Code or ERISA.

“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Borrower, any of its Material Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Borrower, any of its Material Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of Section 436 of the Internal Revenue Code.

“Event of Default” means each of the conditions or events set forth in Section 8.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Fair Share” as defined in Section 7.2.

“Fair Share Contribution Amount” as defined in Section 7.2.

“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Borrower or any of its Subsidiaries or any of their respective predecessors or Affiliates.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code (effective as of the date hereof) and any regulations promulgated thereunder.

“Fixed Charge Coverage Ratio Certificate” means a certificate substantially in the form of Exhibit I.

“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of Borrower that such financial statements fairly present, in all material respects, the financial condition of Borrower and its Material Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.

“Financial Plan” as defined in Section 5.1(h).

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.

“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

“Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of each calendar year.

“Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending, to (ii) Consolidated Fixed Charges for such four-Fiscal Quarter period.

“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.

“Flood Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, in each case as amended from time to time, and any successor statutes.

“Flood Zone” means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as amended from time to time, and any successor statute.

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

“Funding Guarantors” as defined in Section 7.2.

“GAAP” means, subject to the provisions of Section 1.2, United States generally accepted accounting principles or the equivalent standard in foreign jurisdictions applicable to any of the Company’s Foreign Subsidiaries, in effect as of the date of determination thereof.

“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.

“GS Funds” mean Liberty Harbor Special Investments, LLC and Goldman Sachs Palmetto State Credit Fund, L.P.

“Guarantors” mean each of Borrower’s direct and indirect Domestic Subsidiaries (other than Emerging Power, Inc.) that is a Material Subsidiary, TVG Saehan and TVG SEI Holdings.

“Guaranteed Obligations” as defined in Section 7.1.

“Guaranty” means the guaranty of each Guarantor set forth in Section 7.

“Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.

“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.

“Holders” as defined in the recitals hereto.

“Holders Plan Payments” means certain cash payments in an amount not to exceed $8,153,126.28 in connection with the Senior Note Claims (as defined in the Plan) payable by Borrower to Holders pursuant to the Plan.

“Indebtedness” means, as applied to any Person, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services, including any earn-out obligations (excluding any such obligations incurred under ERISA), which purchase price is (a) due more than six months from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar written instrument; (v) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) Disqualified Equity Interests; (viii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another; (ix) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above; and (xi) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, in each case, whether entered into for hedging or speculative purposes or otherwise.

“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect, special or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions, the syndication of the credit facilities provided for herein or the use or intended use of the proceeds thereof, any amendments, waivers or consents with respect to any provision of this Agreement or any of the other Credit Documents, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); or (ii) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Borrower or any of its Subsidiaries.

“Indemnitee” as defined in Section 10.3(a).

“Independent Financial Advisor” shall have the meaning set forth in the Articles of Incorporation.

“Installment” as defined in Section 2.7.

“Intellectual Property” as defined in the Pledge and Security Agreement.

“Intellectual Property Asset” means, at the time of determination, any interest (fee, license or otherwise) then owned by any Credit Party in any Intellectual Property.

“Intercompany Note” means a promissory note substantially in the form of Exhibit I evidencing Indebtedness owed among Credit Parties and their Subsidiaries.

“Interest Payment Date” means the last Business Day of each Fiscal Quarter and the Maturity Date.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.

“Investment” means (i) any direct or indirect purchase or other acquisition by Borrower or any of its Material Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person (other than a Guarantor); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Material Subsidiary of Borrower from any Person (other than Borrower or any Guarantor), of any Equity Interests of such Person; (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by Borrower or any of its Material Subsidiaries to any other Person (other than Borrower or any Guarantor), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business and (iv) all investments consisting of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes or otherwise. The amount of any Investment of the type described in clauses (i), (ii) and (iii) shall be (x) the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment and (y) net of any interest, dividends, repayments or other returns with respect to such Investment not in excess of the amount of such original Investment.

“Itochu” means Itochu Corporation, a Japanese corporation.

“Itochu Plan Payments” means certain cash payments in an amount not to exceed $1,346,873.72 in connection with the Convertible Note Claims (as defined in the Plan) payable by Borrower to Itochu pursuant to the Plan.

“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.

“Know” or “Knowledge” means information that would become known to a reasonably careful person after reasonable investigation.

“Landlord Personal Property Collateral Access Agreement” means a Landlord Personal Property Collateral Access Agreement substantially in the form of Exhibit H with such amendments or modifications as may be approved by Collateral Agent.

“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property, other than any such leasehold interest designated from time to time by Requisite Lenders in their sole discretion as not being required to be included in the Collateral.

“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.

“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.

“Liquidity” means at any time the aggregate unrestricted Cash and Cash Equivalents of Borrower and the Guarantors at such time which is free of all Liens (except Liens pursuant to the Collateral Documents or Permitted Liens referred to in Section 6.2(c)).

“Margin Stock” as defined in Regulation U.

“Material Adverse Effect” means (a) a material adverse effect on and/or material adverse effect upon the business, operations, properties, assets, condition (financial or otherwise) of Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Credit Party to perform its obligations under any Credit Document to which it is a party; (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Credit Party of any Credit Document to which it is a party or (d) a material adverse effect on the ability of any Agent and any Lender or any Secured Party to enforce their rights and remedies under any Credit Document.

“Material Contract” means any contract or other arrangement to which Borrower or any of its Material Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.

“Material Real Estate Asset” means (i) any fee-owned Real Estate Asset having a fair market value in excess of $250,000 as of the date of the acquisition thereof or (ii) any Real Estate Asset that Requisite Lenders have determined is material to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any Material Subsidiary thereof.

“Material Subsidiaries” shall mean all Subsidiaries of Borrower except EnerDel Japan, Inc., a Japanese corporation, Ener1 Battery Company, a Florida corporation, Ener1 Europe, S.A.S., a French corporation, Ener1 Russia, a Russian corporation, and Boca Research International, Inc; provided, however, that if any of the foregoing excepted Subsidiaries shall at any time own any assets or conduct any business such Subsidiary shall immediately and automatically be deemed a “Material Subsidiary”.

“Maturity Date” means the earlier of (a) the sixth anniversary of the Closing Date, and (b) the date on which all Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

“Moody’s” means Moody’s Investors Service, Inc.

“Mortgage” means a Mortgage substantially in the form and substance reasonably satisfactory to the Agents acting at the direction of Requisite Lenders, as it may be amended, restated, supplemented or otherwise modified from time to time.

“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.

“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.

“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Borrower and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate.

“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by Borrower or any of its Material Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs (not payable to any Affiliate of Borrower) incurred in connection with such Asset Sale, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale and any taxes that may be withheld as a result of repatriation of such Cash payments to Borrower (including in connection with distributions to any Subsidiary), (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Term Loans) that is secured by a Lien on the stock or assets in question (or, in the case of Asset Sales by Ener1 Korea, to the extent required by the terms of unsecured Indebtedness of Ener1 Korea; provided that the terms requiring such repayment are substantially similar to the terms of existing Indebtedness of Ener1 Korea on the date hereof) and that is required to be repaid under the terms thereof as a result of such Asset Sale and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Material Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds; provided, further, that payments received with respect to any Asset Sale consummated by a Material Subsidiary which is a joint venture or strategic alliance shall not constitute Net Asset Sale Proceeds to the extent that the applicable joint venture or strategic alliance agreement restricts the distribution of such proceeds to the parties thereto.

“Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or proceeds received by Borrower or any of its Material Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of Borrower or any of its material Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs (not payable to any Affiliate of Borrower) incurred by Borrower or any of its material Subsidiaries in connection with the adjustment or settlement of any claims of Borrower or such Material Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes payable as a result of any gain recognized in connection therewith.

“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Indebtedness of the type described in clause (xi) of the definition thereof. As used in this definition, “unrealized losses” means the fair market value of the cost to such Person of replacing such Indebtedness as of the date of determination (assuming such Indebtedness were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Indebtedness as of the date of determination (assuming such Indebtedness were to be terminated as of that date).

“New Common Stock” has the meaning assigned to that term in the Plan.

“New Preferred Stock” has the meaning assigned to that term in the Plan.

“Non-Consenting Lender” as defined in Section 2.15.

“Non-US Lender” as defined in Section 2.13(c).

“Note” means a promissory note in the form of Exhibit A, as it may be amended, restated, supplemented or otherwise modified from time to time.

“Obligations” means all obligations of every nature of each Credit Party, including obligations from time to time owed to Agents (including former Agents in such capacity), Lenders, or any of them, under any Credit Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.

“Organizational Documents” means (i) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such Organizational Document shall only be to a document of a type customarily certified by such governmental official.

“Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies (and interest, fines, penalties and additions related thereto) arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document.

“Participant Register” as defined in Section 10.6(g)(i).

“Patent Security Agreement” has the meaning assigned to that term in the Collateral Agreement.

“PATRIOT Act” as defined in Section 3.1(n).

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.

“Permitted Acquisition” means any acquisition, directly or indirectly, by Borrower or any of its Subsidiaries at least 90% of the Equity Interest of which is owned directly or indirectly by Borrower, whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the Equity Interests of, or a business line or unit or a division of, any Person (any such transaction, an “Acquisition”); provided,

(i) immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(ii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;

(iii) in the case of the acquisition of Equity Interests, not less than 90% of the Equity Interests (except for any such Securities in the nature of directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued, directly or indirectly, by such Person or any newly formed Subsidiary of Borrower in connection with such acquisition shall be owned, directly or indirectly, by Borrower or a Guarantor thereof, such acquired Person shall become a Domestic Subsidiary and Borrower shall have taken, or caused to be taken, as of the date such Person becomes a Domestic Subsidiary of Borrower, each of the actions set forth in Sections 5.9 and/or 5.10, as applicable;

(iv) Borrower shall have delivered to Administrative Agent for distribution to each Lender (A) at least 10 Business Days prior to such proposed acquisition (or such shorter period as may be agreed by Administrative Agent), (i) all relevant financial information with respect to such acquired assets, including the aggregate consideration for such acquisition and any other information required to demonstrate compliance with Section 6.7 and (B) promptly upon request by Administrative Agent or any Lender, (i) a copy of the purchase agreement related to the proposed Acquisition (and any related documents reasonably requested by Administrative Agent or any Lender) and (ii) quarterly and annual financial statements of the Person whose Equity Interests or assets are being acquired for the twelve (12) month period immediately prior to such proposed Permitted Acquisition, including any audited financial statements that are available;

(v) any Person or assets or division as acquired in accordance herewith shall be in same business or lines of business in which Borrower and/or its Subsidiaries are engaged as of the Closing Date or similar or related businesses a; and

(vi) except for Acquisitions the aggregate Acquisition Consideration for which shall not exceed $3,000,000 in any Fiscal Year) either (A) any Person or assets or division as acquired in accordance herewith shall have generated positive cash flow for the four quarter period most recently ended prior to the date of such Acquisition and such Acquisition shall not be financed by the incurrence of or assumption of Indebtedness (including Indebtedness referred to in Section 6.1(j)), or (B) such Acquisition has been approved by the Requisite Lenders.

“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.

“Permitted Transfer” shall have the meaning set forth in the Stockholder’s Agreement.

“Permitted Transferees” shall mean the transferee in the event of a Permitted Transfer.

“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.

“PIK Interest” as defined in Section 2.4(a).

“Plan” means the Borrower’s Prepackaged Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, dated [_________], 2012 and all schedules and exhibits thereto or referenced therein, as it may be amended, modified or supplemented from time to time in accordance with the provisions of the Plan, the Bankruptcy Code and the terms of the Plan Support Agreement.

“Plan Support Agreement” has the meaning assigned to that term in the Plan.

“Platform” as defined in Section 10.1(b).

“Principal Office” means, for Administrative Agent, its “Principal Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Borrower and each Lender.

“Pro Rata Share” means with respect to all payments, computations and other matters relating to the Term Loan of any Lender and any other purposes, the percentage obtained by dividing (a) the Term Loans of that Lender by (b) the aggregate Term Loans of all Lenders.

“Put” shall have the meaning set forth in the Stockholders Agreement.

“Put Shares” shall have the meaning set forth in the Stockholders Agreement.

“Projections” as defined in Section 4.8.

“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party in any real property.

“Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.

“Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record Document has been recorded in all places necessary or desirable, in the reasonable judgment of Requisite Lenders, to give constructive notice of such Leasehold Property to third-party purchasers and encumbrancers of the affected real property.

“Register” as defined in Section 2.3(b).

“Regulation D” means Regulation D of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“Regulation FD” means Regulation FD as promulgated by the U.S. Securities and Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.

“Regulation T” means Regulation T of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“Regulation U” means Regulation U of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“Regulation X” means Regulation X of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“Related Agreements” means, collectively, the Equity Commitment Agreement, the Plan, the Plan Support Agreement and the Stockholders Agreement.

“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Related Party Transaction” means any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) between Borrower or any of its Subsidiaries and any Affiliate of Borrower.

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

“Replacement Lender” as defined in Section 2.15.

“Required Prepayment Date” as defined in Section 2.10(c).

“Requisite Lenders” means one or more Lenders having or holding Term Loans and representing more than 50% of the aggregate Term Loans of all Lenders.

“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock of Borrower or any of its Subsidiaries now or hereafter outstanding, except to Borrower or any of its Subsidiaries and except for dividends or distributions payable solely in shares of that class of stock to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of Borrower or any of its Subsidiaries now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of Borrower or any of its respective Material Subsidiaries now or hereafter outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness.

“S&P” means Standard & Poor’s, a Division of The McGraw-Hill Companies, Inc.

“Secured Obligations” means the Obligations, the Holders Plan Payments and the Itochu Plan Payments.

“Secured Parties” means (i) each Agent, (ii) each Lender, (iii) solely with respect to the Holders Plan Payments, each Holder, and (iv) solely with respect to the Itochu Plan Payments, Itochu.

“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Solvent” means, with respect to any Credit Party, that as of the date of determination, both (i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the Projections or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No.5).

“Sponsor” means Bzinfin S.A.

“Stock” means all issued and outstanding shares of New Common Stock and New Preferred Stock, together with all other shares of capital stock of Borrower of any class or series which may after the Effective Date be issued.

“Subordinated Indebtedness” as defined in Section 6.1(o).

“Stockholders Agreement” means that certain Stockholders Agreement, dated as of the Effective Date, by and among the Borrower and the shareholders of the Company party thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding (together with interest, penalties and other additions thereto) of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed; provided, “Tax on the overall net income” of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or in which that Person’s applicable principal office (and/or, in the case of a Lender, its lending office) is located on all or part of the overall net income, profits or gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office).

“Term Loan” as defined in Section 2.1.

“Terminated Lender” as defined in Section 2.15.

“Title Policy” as defined in Section 3.1(g)(iv).

“Transactions” as defined in Section 3.1(e).

“Trademark Security Agreement” has the meaning assigned to that term in the Collateral Agreement.

“TVG Saehan” means TVG Saehan, a Malaysian company.

“TVG SEI Holdings” means TVG SEI Holdings, a British Virgin Islands company.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

“U.S. Lender” as defined in Section 2.13(c).

“8.25% Notes” as defined in the recitals hereto.

1.2 Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Borrower to Lenders pursuant to Sections 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(e), if applicable).

1.3 Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable.

SECTION 2. TERM LOANS

2.1 Term Loans. Subject to and upon the terms and conditions herein set forth, on the Closing Date each Lender is deemed to have made a term loan (each such loan, including any PIK Interest which may be added thereto in accordance with Section 2.4(a), a “Term Loan” and, collectively, the “Term Loans”) denominated in Dollars to Borrower in the amount set forth opposite such Lender’s name on Appendix A under the caption “Term Loans”. On the Closing Date, the aggregate principal amount of the Term Loans outstanding under this Agreement is $[_______]. Any amount deemed owing under this Section 2.1 and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.8(a) and 2.9, all amounts owed hereunder with respect to the Term Loans shall be paid in full no later than the Maturity Date.

2.2 Use of Proceeds. The Term Loans deemed to be made on the Closing Date, shall be deemed made, together with other consideration received by the Noteholders pursuant to the Plan, in full satisfaction of Borrower’s outstanding indebtedness under the 8.25% Notes as of the Effective Date.

2.3 Evidence of Debt; Register; Lenders’ Books and Records; Notes.

(a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the Term Loans held by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Borrower, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect Borrower’s Obligations in respect of any Term Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

(b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and Loans of each Lender from time to time (the “Register”). The Register shall be available for inspection by Borrower or any Lender (with respect to (i) any entry relating to such Lender’s Loans and (ii) the identity of the other Lenders (but not any information with respect to such other Lenders’ Loans) at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the Register the Term Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Term Loans, and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect Borrower’s Obligations in respect of any Term Loan. Borrower hereby designates Administrative Agent to serve as Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.3, and Borrower hereby agrees that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”

(c) Notes. If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Term Loan.

2.4 Interest on Term Loans.

(a) Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) at the rate that is 7.00% per annum; provided that (i) commencing on the Interest Payment Date (as demonstrated in the Fixed Charge Coverage Ratio Certificate delivered to the Administrative Agent not later than 12:00 p.m. (New York City time) occurring on the last Business Day of the Fiscal Quarter ending March 31, 2013, in the event that, as of any Interest Payment Date, the Fixed Charge Coverage Ratio for the four Fiscal Quarter period most recently ended prior to such Interest Payment Date equals or exceeds 1.75:1, accrued interest on the Term Loans as of such Interest Payment Date shall be paid in cash and (ii) in the event that the requirements of clause (i) above are not satisfied at such Interest Payment Date, and in any event prior to March 31, 2013, the accrued interest on the Term Loans at such Interest Payment Date shall be capitalized with and added to the principal amount of the Term Loans for all purposes of this Agreement (such capitalized interest, “PIK Interest”), it being understood that the amount of PIK Interest as of any date shall include all PIK Interest capitalized prior to or on such date.

(b) Interest payable or capitalized (as applicable) pursuant to Section 2.4(a) shall be computed on the basis of a 360-day year for the actual number of days elapsed in the period during which it accrues. In computing interest on any Term Loan, the Closing Date or the last Interest Payment Date shall be included, and the date of payment of such Term Loan shall be excluded.

(c) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable or capitalized (as applicable), in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Term Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Term Loans, including final maturity of the Term Loans.

2.5 Default Interest. Upon the occurrence and during the continuance of an Event of Default under Section 8.1, the principal amount of all Loans outstanding shall thereafter bear interest (including post-petition interest in any proceeding under Debtor Relief Laws) payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.5 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.

2.6 Fees. Borrower agrees to pay to Agents pursuant to the Agent Fee Letter fees in the amounts and at the times described in the letter dated as of January 13, 2012 from Wilmington to Weil, Gotshal & Manges, LLP, as counsel for the GS Funds and delivered to Borrower^1.

2.7 Scheduled Payments.

(a) Scheduled Installments. The principal amounts of the Term Loans shall be repaid in consecutive installments and at final maturity (each such payment, an “Installment”) in the aggregate amounts set forth below on each date set forth below (the “Amortization Date”):

Amortization Date		Term Loan Installments
First anniversary of the Closing Date		$5,000,000 to be applied to the principal amount of the Term Loans (excluding PIK Interest) outstanding on the first anniversary of the Closing Date

Second anniversary of the Closing Date		$5,000,000 to be applied to the principal amount of the Term Loans (excluding PIK Interest) outstanding on the second anniversary of the Closing Date

Third anniversary of the Closing Date		25% of the principal amount of the Term Loans (excluding PIK Interest) outstanding on the third anniversary of the Closing Date

Fourth anniversary of the Closing Date		25% of the principal amount of the Term Loans (excluding PIK Interest) outstanding on the third anniversary of the Closing Date plus 1/3 of the PIK Interest on and as of the fourth anniversary of the Closing Date

Fifth anniversary of the Closing Date		25% of the principal amount of the Term Loans (excluding PIK Interest) outstanding on the third anniversary of the Closing Date plus 1/3 of the PIK Interest on and as of the fourth anniversary of the Closing Date

Maturity Date		Remainder

¹ Agent Fee Letter shall be executed at closing.

; provided, however, that so long as any Holders Plan Payment or Itochu Plan Payment remains outstanding, Borrower shall not pay any amounts to Lenders hereunder (although any such amounts owing to Lenders shall remain due), including without limitation any voluntary or mandatory prepayments of the Term Loans in accordance with Sections 2.8, 2.9 or 2.10 and any amendments, modifications or waivers of this proviso shall be subject to Section 10.5(c).

Subject to the foregoing provisio, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loans in accordance with Sections 2.8, 2.9 and 2.10, as applicable; and (y) the Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date.

(b) AHYDO Payment. On the last day of each accrual period (as defined in Section 1272(a)(5) of the Internal Revenue Code) occurring after the fifth anniversary of the Closing Date, Borrower shall in addition pay the minimum amount necessary, if any, to ensure that the Term Loans do not constitute “applicable high yield discount obligations” within the meaning of Section 163(i) of the Internal Revenue Code.

2.8 Voluntary Prepayments.

(a) Voluntary Prepayments. Any time and from time to time Borrower may prepay any Term Loans on any Business Day in whole or in part without premium or penalty, in an aggregate minimum amount of $1,000,000 and integral multiples of $50,000 in excess of that amount.

(b) Notice of Prepayment. All such prepayments shall be made upon not less than three Business Day’s prior written or telephonic notice given to Administrative Agent by 12:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed by delivery of written notice thereof to Administrative Agent (and Administrative Agent will promptly transmit such original notice for Term Loans by telefacsimile or telephone to each Lender). Upon the giving of any such notice, the principal amount of the Term Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as set forth in Section 2.10.

2.9 Mandatory Prepayments.

(a) Asset Sales. No later than the third Business Day following the date of receipt by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay the Term Loans as set forth in Section 2.10 in an aggregate amount equal to 50% of such Net Asset Sale Proceeds.

(b) Insurance/Condemnation Proceeds. No later than the third Business Day following the date of receipt by Borrower or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds, Borrower shall hold such Net Insurance/Condemnation Proceeds in an escrow account and if such proceeds may be used by Borrower in accordance with clause (ii) below, but are not so used by Borrower in accordance therewith, then such Net Insurance/Condemnation Proceeds shall be used to prepay the Term Loans as set forth in Section 2.10 in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds from the Closing Date through the applicable date of determination do not exceed $2,000,000, Borrower shall have the option, directly or through one or more of its Material Subsidiaries to invest such Net Insurance/Condemnation Proceeds within one hundred eighty days of receipt thereof in long term productive assets of the general type used in the business of Borrower and its Subsidiaries, which investment may include the repair, restoration or replacement of the applicable assets thereof.

(c) Issuance of Debt. On the date of receipt by Borrower or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of Borrower or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1), Borrower shall prepay the Term Loans as set forth in Section 2.10 in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.

(d) Change of Control. No later than the third Business Day following the occurrence of the Change of Control, Borrower shall prepay the Term Loans in full together with all other amounts owed hereunder with respect thereto; provided, however, that not less than three Business Days prior to the date (the “Required Prepayment Date”) on which Borrower is required to make such prepayment, Borrower shall notify Administrative Agent thereof, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of such prepayment and of such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to Borrower and Administrative Agent of its election to do so on or before the Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify Borrower and Administrative Agent of its election to exercise such option on or before the Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, Borrower shall pay to Administrative Agent the amount of the prepayment pursuant to this clause (d) equal to that portion of such prepayment payable to those Lenders that have elected not to exercise such option, to prepay the Term Loans of such Lenders.

(e) Prepayment Certificate. Not less than the third Business Day prior to any prepayment of the Term Loans pursuant to Sections 2.9(a) through 2.9(c), Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Term Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.

2.10 Application of Prepayments. Any prepayment of any Term Loan pursuant to Section 2.8 and Sections 2.9(a) through 2.9(c) shall be applied to reduce the scheduled remaining Installments of principal of the Term Loans in the inverse order of their maturity.

2.11 General Provisions Regarding Payments.

(a) All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on the date due at the Principal Office of Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.

(b) All prepayments in respect of the principal amount of any Term Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Term Loan on a date when interest is due and payable with respect to such Term Loan) shall be applied to the payment of interest then due and payable before application to principal.

(c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.

(d) Whenever any payment to be made hereunder with respect to any Term Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.

(e) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to 12:00 p.m. (New York City time) on the date due to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.5 from the date such amount was due and payable until the date such amount is paid in full.

(f) If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1 or pursuant to any sale of, any collection from, or other realization upon all or any part of the Collateral, all payments or proceeds received by Agents in respect of any of the Secured Obligations, shall be applied in full or in part by the applicable Agent against the Secured Obligations in the following order of priority:

first, to the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to the applicable Agent and its agents and counsel, and all other expenses, liabilities and advances made or incurred by the applicable Agent in connection therewith, and all amounts for which the applicable Agent is entitled to indemnification hereunder (in its capacity as an Agent and not as a Lender) and all advances made by the applicable Agent hereunder for the account of the applicable Grantor, and to the payment of all costs and expenses paid or incurred by the applicable Agent in connection with the exercise of any right or remedy under this Agreement or under any Collateral Document, all in accordance with the terms hereof or thereof;

second, to the extent of any excess of such proceeds, to the payment of all Holders Plan Payments and the Itochu Plan Payments for the ratable benefit of each Holder and Itochu;

third, to the extent of any excess of such proceeds, to the payment of all other Secured Obligations for the ratable benefit of the Secured Parties; and

fourth, to the extent of any excess of such proceeds, to the payment to or upon the order of the Borrower or the applicable Guarantor or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

2.12 Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Term Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as Cash Collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, consolidation, set-off or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.12 shall not be construed to apply to (a) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Term Loans or other Obligations owed to it.

2.13 Taxes; Withholding, Etc.

(a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or assessed by any Governmental Authority.

(b) Withholding of Taxes. If any Credit Party or any other Person (acting as a withholding agent) is (in such withholding agent’s reasonable good faith discretion) required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Borrower shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as Borrower becomes aware of it; (ii) Borrower shall pay, or cause to be paid, any such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) unless otherwise provided on this Section 2.13, the sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (iv) within thirty days after the due date of payment of any Tax which it is required by clause (ii) above to pay, Borrower shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority; provided, with respect to any United States federal withholding tax, no such additional amount shall be required to be paid to any Lender (other than a Lender that becomes a Lender pursuant to Section 2.15) under clause (iii) above except to the extent that any change after the date hereof (in the case of each Lender listed on the signature pages hereof on the Closing Date) or after the effective date of the Assignment Agreement pursuant to which such Lender became a Lender (in the case of each other Lender) in any such requirement for a deduction, withholding or payment as is mentioned therein shall result in an increase in the rate of such deduction, withholding or payment from that in effect at the date hereof or at the date of such Assignment Agreement, as the case may be, in respect of payments to such Lender; provided that additional amounts shall be payable to a Lender to the extent such Lender’s assignor was entitled to receive such additional amounts.

(c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender”) shall, to the extent such Lender is legally able to do so, deliver to Administrative Agent for transmission to Borrower, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Borrower or Administrative Agent (each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN, W-8ECI, W-8EXP and/or W-8IMY (or, in each case, any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Borrower to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code, a Certificate re Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Borrower to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “U.S. Lender”) and is not an exempt recipient within the meaning of Treasury Regulation Section 1.6049-4(c) shall deliver to Administrative Agent and Borrower on or prior to the Closing Date (or, if later, on or prior to the date on which such Lender becomes a party to this Agreement) two original copies of Internal Revenue Service Form W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from United States backup withholding tax, or otherwise prove that it is entitled to such an exemption. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.13(c) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Administrative Agent for transmission to Borrower two new original copies of Internal Revenue Service Form W-8BEN, W-8ECI, W-8EXP, W-8IMY and/or W-9 (or, in each case, any successor form), or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Borrower to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and Borrower of its inability to deliver any such forms, certificates or other evidence. Borrower shall not be required to pay any additional amount to any Non-US Lender under Section 2.13(b)(iii) if such Lender shall have failed (1) to deliver the forms, certificates or other evidence required by the first sentence of this Section 2.13(c) or (2) to notify Administrative Agent and Borrower of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided, if such Lender shall have satisfied the requirements of the first sentence of this Section 2.13(c) on the Closing Date or on the date of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last sentence of Section 2.13(c) shall relieve Borrower of its obligation to pay any additional amounts pursuant this Section 2.13 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein.

(d) Notwithstanding anything to the contrary, Borrower shall not be required to pay any additional amount pursuant to Section 2.13(b) with respect to any United States federal withholding tax imposed on any “withholdable payments” payable to a recipient as a result of the failure of such recipient to satisfy the applicable requirements as set forth in FATCA after December 31, 2012.

(e) Without limiting the provisions of Section 2.13(b), Borrower shall timely pay all Other Taxes to the relevant Governmental Authorities in accordance with applicable law. Borrower shall deliver to Administrative Agent for distribution to each affected Lender official receipts or other evidence of such payment reasonably satisfactory to such affected Lender in respect of any Other Taxes payable hereunder promptly after payment of such Other Taxes.

(f) Borrower shall indemnify Administrative Agent and any Lender for the full amount of Taxes for which additional amounts are required to be paid pursuant to Section 2.13(b) arising in connection with payments made under this Agreement or any other Credit Document and Other Taxes (including any such Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.13) paid by Administrative Agent or Lender or any of their respective Affiliates and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to such Credit Party shall be conclusive absent manifest error. Such payment shall be due within thirty (30) days of such Credit Party’s receipt of such certificate.

(g) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.13 (including additional amounts pursuant to this Section 2.13), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.13 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

2.14 Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Term Loans becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under Section 2.13, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) maintain its Term Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.13 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Term Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Term Loans or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.14 unless Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Borrower pursuant to this Section 2.14 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.

2.15 Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Tax Lender”) shall give notice to Borrower that such Lender is entitled to receive payments under Section 2.13, (ii) the circumstances which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Borrower’s request for such withdrawal; or (b) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased-Tax Lender or Non-Consenting Lender (the “Terminated Lender”), Borrower may, by giving written notice to Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Term Loans in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and Borrower shall pay the fees, if any, payable thereunder in connection with any such assignment from an Increased-Tax Lender or a Non-Consenting Lender; provided, (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of an amount equal to the principal of, and all accrued interest on, all outstanding Term Loans of the Terminated Lender; (2) on the date of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.13; or otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees that if Borrower exercises its option hereunder to cause an assignment by such Lender as a Non-Consenting Lender or Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within three Business Days after receipt of such notice, each Lender hereby authorizes and directs Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.6 on behalf of a Non-Consenting Lender or Terminated Lender and any such documentation so executed by Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.6. Without limiting the rights and indemnities of Administrative Agent provided elsewhere herein, each Lender further agrees that Administrative Agent shall have no liability for executing any documentation contemplated by the preceding sentence whether or not such Non-Consenting Lender or Terminated Lender, as applicable, instructs it to do otherwise or contests that the circumstances giving rise to such provisions exist.

SECTION 3. CONDITIONS PRECEDENT

3.1 Conditions Precedent. This Agreement shall become effective as of the date on which each of the following conditions shall have been satisfied, or waived in accordance with Section 10.5 (the “Closing Date”):

(a) Credit Documents. Administrative Agent shall have received sufficient copies of each Credit Document as Administrative Agent shall request, originally executed and delivered by each applicable Credit Party.

(b) Organizational Documents; Incumbency. Administrative Agent shall have received, in respect of each Credit Party, (i) sufficient copies of each Organizational Document as Administrative Agent shall request, and, to the extent applicable, certified as of the Closing Date or a recent date prior thereto by the appropriate Governmental Authority; (ii) signature and incumbency certificates of the officers of such Credit Party; (iii) resolutions of the Board of Directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated the Closing Date or a recent date prior thereto; and (v) such other documents as Administrative Agent or Requisite Lenders may reasonably request.

(c) Organizational and Capital Structure. The pro forma organizational structure and capital structure of Borrower and its Subsidiaries, shall be as substantially as described in the Plan and the related disclosure statement.

(d) Confirmation of the Plan. The Plan shall have been confirmed by the Bankruptcy Court pursuant to a confirmation order (the “Confirmation Order”) in accordance with the Plan Support Agreement. The Confirmation Order shall not be subject to any stay or pending appeal. All conditions precedent to the effectiveness of the Plan (other than the occurrence of the Closing Date hereunder) shall have been satisfied (or waived in accordance with the Plan Support Agreement) pursuant to the Confirmation Order. Except as consented to by Requisite Lenders, the Bankruptcy Court’s retention of jurisdiction under the Confirmation Order shall not govern the enforcement of the Credit Documents or any rights or remedies related thereto.

(e) Consummation of Transactions.

(i) (1) All conditions to transactions contemplated by the Plan and the Related Agreements to occur on the Effective Date (the “Transactions”) shall have been satisfied or the fulfillment of any such conditions shall have been waived with the consent of Requisite Lenders and (2) the Transactions (including the cash payments of $2,717,708.76 payable on the Effective Date to the Holders pursuant to the Plan) shall be consummated on the Effective Date and substantially simultaneously with the occurrence of the Closing Date.

(ii) Administrative Agent shall have received a fully executed or conformed copy of each Related Agreement and any documents executed in connection therewith. Each Related Agreement shall be in full force and effect, shall include terms and provisions reasonably satisfactory to Administrative Agent and Requisite Lenders and no provision thereof shall have been modified or waived in any respect determined by Requisite Lenders to be material, in each case without the consent of Requisite Lenders, except for the modification or waivers made pursuant to the terms of the Plan Support Agreement or the Plan.

(f) Governmental Authorizations and Consents. Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Credit Documents and the Related Agreements and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Requisite Lenders. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents or the Related Agreements or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.

(g) Real Estate Assets. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantor the following; it being acknowledged by all parties hereto that none of the requirements in this Section 3.1(g) shall be required to be delivered with respect to any Real Estate Asset listed in Schedule 3.1(i):

(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(i) (each, a “Closing Date Mortgaged Property”);

(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent and Requisite Lenders) in each state in which a Closing Date Mortgaged Property is located with respect to the enforceability of the form(s) of Mortgages to be recorded in such state and such other matters as Collateral Agent or Requisite Lenders may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent and Requisite Lenders;

(iii) in the case of each Leasehold Property that is a Closing Date Mortgaged Property, Landlord Collateral Access Agreement;

(iv) (a) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent and Requisite Lenders with respect to each Closing Date Mortgaged Property (each, a “Title Policy”), in amounts not less than the fair market value of each Closing Date Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Requisite Lenders and (B) evidence satisfactory to Collateral Agent and Requisite Lenders that such Credit Party has paid to the title company or to the appropriate Governmental Authorities all expenses and premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for each Closing Date Mortgaged Property in the appropriate real estate records;

(v) (A) a completed Flood Certificate with respect to each Closing Date Mortgaged Property, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Closing Date Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from Requisite Lenders (x) as to the existence of such Closing Date Mortgaged Property and (y) as to whether the community in which each Closing Date Mortgaged Property is located is participating in the Flood Program; and (C) if such Closing Date Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program;

(vi) to the extent applicable, ALTA surveys of all Closing Date Mortgaged Properties which are not Leasehold Properties, certified to Collateral Agent and dated not more than thirty days prior to the Closing Date; and

(vii) reports and other information, in form, scope and substance satisfactory to Requisite Lenders, regarding environmental matters relating to the Closing Date Mortgaged Properties.

(h) Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the personal property Collateral, each Credit Party shall have delivered to Collateral Agent:

(i) evidence satisfactory to Requisite Lenders of the compliance by each Credit Party of their obligations under the Collateral Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);

(ii) fully executed and notarized Patent Security Agreement and Trademark Security Agreement, each in proper form for filing or recording in all appropriate places in all applicable jurisdictions, memorializing and recording the encumbrance of the Intellectual Property Assets listed in Schedule 1 to Patent Security Agreement and the Trademark Security Agreement, respectively;

(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent and Requisite Lenders) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Credit Party or any personal property Collateral is located as Collateral Agent or Requisite Lenders may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent and Requisite Lenders;

(iv) evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including (i) a Landlord Personal Property Collateral Access Agreement executed by the landlord of any Leasehold Property and by the applicable Credit Party; provided that such Landlord Personal Property Collateral Access Agreement shall not be required if it cannot be obtained after the applicable Credit Party uses commercially reasonable efforts to obtain it and (ii) intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 6.1(b), in each case with an endorsement to Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Requisite Lenders; and

(v) Malaysian and British Virgin Islands (as applicable) law governed pledge agreements in connection with granting and perfection of First Priority Liens in favor of Collateral Agent, for the benefit of Secured Parties, in (i) 100% of the Equity Interest of TVG Saehan and TVG SEI Holdings, and (ii) all Equity Interests in Ener1 Korea owned by TVG Saehan and TVG SEI Holdings or any other Material Subsidiary;

(i) Financial Statements; Projections. Administrative Agent shall have received from Borrower for distribution to each Lender (i) pro forma consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the Closing Date, and reflecting the consummation of the Transactions, the related financings and the other transactions contemplated by the Credit Documents to occur on or prior to the Closing Date, which pro forma financial statements shall be in form and substance satisfactory to Requisite Lenders, and (ii) the Projections.

(j) Evidence of Insurance. Collateral Agent shall have received a certificate from the applicable Credit Party’s insurance broker or other evidence satisfactory to Requisite Lenders that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5.

(k) Opinions of Counsel to Credit Parties. Agents and Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of counsel (reasonably acceptable to the Agents and Requisite Lenders) to Borrower and Guarantors, Nicholas Brunero as General Counsel of Borrower and Guarantors, and Roetzel & Andress, LPA, as Florida counsel for Credit Parties, and of counsel reasonably acceptable to the Agents in Malaysia and British Virgin Islands, respectively, in each case, as to such matters as Requisite Lenders may reasonably request, dated as of the Closing Date and in form and substance reasonably satisfactory to Requisite Lenders (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders); provided that if Borrower (after using its reasonable efforts) fails to deliver opinions of counsel in Malaysia and British Virgin Islands prior to or on the Effective Date such opinions shall be delivered within five (5) Business Days after the Effective Date or within such longer period as may be reasonably agreed to by Requisite Lenders.

(l) Fees and Expenses. Borrower shall have paid to each Agent the fees payable on or before the Closing Date referred to in Section 2.6 and all expenses payable pursuant to Section 10.2 which have accrued to the Closing Date.

(m) Closing Date Certificate. Borrower shall have delivered to Administrative Agent an originally executed Closing Date Certificate, confirming, among other things that conditions set forth in clauses (c), (d), (e), (f), (n), (p) and (q) of this Section 3.1 have been satisfied, together with all attachments thereto.

(n) Minimum Liquidity. The Liquidity on the Closing Date after giving effect to the Transactions shall be not less than $2,000,000.

(o) Know-Your-Customer Information. At least 10 days prior to the Closing Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”).

(p) Representations and Warranties. As of the Closing Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.

(q) No Event of Default. As of the Closing Date, no event shall have occurred and be continuing or would result from the consummation of the Transactions that would constitute an Event of Default or a Default.

3.2 Determination under Section 3.1. For purposes of determining compliance with the conditions specified in Section 3.1, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Administrative Agent shall have received notice in writing from such Lender specifying its objections thereto prior to the date that Borrower, by notice to the Lenders, designates as a proposed Closing Date.

SECTION 4. REPRESENTATIONS AND WARRANTIES

In order to induce Agents and Lenders to enter into this Agreement, each Credit Party represents and warrants to each Agent and Lender, on the Closing Date, that the following statements are true and correct:

4.1 Organization; Requisite Power and Authority; Qualification. Each of Borrower and its Material Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect. Each Credit Party has all requisite power and authority to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby.

4.2 Equity Interests and Ownership. The Equity Interests of each of Borrower and its Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which Borrower or any of its Subsidiaries is a party requiring, and there is no membership interest or other Equity Interests of Borrower or any of its Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Borrower or any of its Subsidiaries of any additional membership interests or other Equity Interests of Borrower or any of its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Equity Interests of Borrower or any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Borrower and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date both before and after giving effect to the Transactions.

4.3 Due Authorization. The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.

4.4 No Conflict. The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not (a) violate (i) any provision of any law or any governmental rule or regulation applicable to Borrower or any of its Material Subsidiaries, (ii) any of the Organizational Documents of Borrower or any of its Material Subsidiaries, or (iii) any order, judgment or decree of any court or other agency of government binding on Borrower or any of its Material Subsidiaries; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of any Credit Party except to the extent such conflict, breach or default could not reasonably be expected to have a Material Adverse Effect; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Borrower or any Guarantor (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, for the benefit of the Secured Parties); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Borrower or any of its Material Subsidiaries, except for such approvals or consents which will be obtained on or before the Closing Date and disclosed in writing to Lenders.

4.5 Governmental Consents. The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except as otherwise set forth in the Plan, and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Closing Date.

4.6 Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. Notwithstanding anything herein to the contrary, certain of the remedial provisions hereunder and in the other Loan Documents with respect to the Collateral may be limited or rendered unenforceable by applicable laws, interpretations and requirements under, (x) any federal or state grant, contract or assistance agreement to which Borrower or any of the Guarantors is a party, or by which any of their respective properties or assets is bound, (y) any federal export control laws applicable to Borrower, any of the Guarantors, or any of the Lenders , or (z) the Committee on Foreign Investment in the U.S.

4.7 [Intentionally Omitted].

4.8 Projections. On and as of the Closing Date, the projections of Borrower and its Material Subsidiaries prepared in connection with the Plan (the “Projections”) are based on good faith estimates and assumptions made by the management of Borrower; provided, the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material; provided further, as of the Closing Date, management of Borrower believed that the Projections were reasonable and attainable.

4.9 Adverse Proceedings, Etc. Except as set forth on Schedule 4.9, there are no Adverse Proceedings, individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 4.9, neither Borrower nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

4.10 Payment of Taxes. Except as otherwise permitted under Section 5.3, all

ENER1 INC 8-K/A