(l) 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. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. The Company may not assign its rights (except by merger or in connection with another entity acquiring all or substantially all of the Companys assets) or obligations hereunder without the prior written consent of all the Holders of the then outstanding Registrable Securities. The rights to have the Company register Registrable Securities pursuant to this Agreement shall be automatically assigned by Registration Rights Purchaser to any transferee of the Shares only if: (a) the transferee or assignee (i)acquires Shares of the Registration Rights Purchasers Registrable Securities with an original value as of the Closing Date of $2,000,000; (b)the Registration Rights Purchaser agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable period of time after such assignment; (c)the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (i)the name and address of such transferee or assignee and (ii)the securities with respect to which such registration rights are being transferred or assigned; (d)immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws; and (e)at or before the time the Company received the written notice contemplated by clause (c)of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein with respect to a Holder or Registration Rights Purchaser. In the event of any delay in filing or effectiveness of the Registration Statement as a result of such assignment by a Registration Rights Purchaser or its transferee, the Company shall not be liable for any damages arising from such delay.

( l ) 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 . Nothing in this Agreement , express or implied , is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights , remedies , obligations , or liabilities under or by reason of this Agreement , except as expressly provided in this Agreement . The Company may not assign its rights ( except by merger or in connection with another entity acquiring all or substantially all of the Companys assets ) or obligations hereunder without the prior written consent of all the Holders of the then outstanding Registrable Securities . The rights to have the Company register Registrable Securities pursuant to this Agreement shall be automatically assigned by Registration Rights Purchaser to any transferee of the Shares only if : ( a ) the transferee or assignee ( i ) acquires Shares of the Registration Rights Purchasers Registrable Securities with an original value as of the Closing Date of $ 2 , 000 , 000 ; ( b ) the Registration Rights Purchaser agrees in writing with the transferee or assignee to assign such rights , and a copy of such agreement is furnished to the Company within a reasonable period of time after such assignment ; ( c ) the Company is , within a reasonable time after such transfer or assignment , furnished with written notice of ( i ) the name and address of such transferee or assignee and ( ii ) the securities with respect to which such registration rights are being transferred or assigned ; ( d ) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws ; and ( e ) at or before the time the Company received the written notice contemplated by clause ( c ) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein with respect to a Holder or Registration Rights Purchaser . In the event of any delay in filing or effectiveness of the Registration Statement as a result of such assignment by a Registration Rights Purchaser or its transferee , the Company shall not be liable for any damages arising from such delay .


This SECURITIES PURCHASE AGREEMENT (the Agreement), dated as of March 1, 2017 , by and between Tiger Reef, Inc , a Colorado corporation, with headquarters located at The Mailbox #5241 P.O. Box 523882, Miami, FL 33152-3882 , (the Company), and EAGLE EQUITIES, LLC , a Nevada limited liability company, with its address at 525 Norton Parkway , New Haven, CT <sup> 06511 (the Buyer).

This SECURITIES PURCHASE AGREEMENT ( the Agreement ) , dated as of March 1 , 2017 , by and between Tiger Reef , Inc , a Colorado corporation , with headquarters located at The Mailbox # 5241 P . O . Box 523882 , Miami , FL 33152-3882 , ( the Company ) , and EAGLE EQUITIES , LLC , a Nevada limited liability company , with its address at 525 Norton Parkway , New Haven , CT < sup > 06511 ( the Buyer ) .


Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the state and county of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Company and Buyer waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform

Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws . Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the state and county of New York . The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens . The Company and Buyer waive trial by jury . The prevailing party shall be entitled to recover from the other party its reasonable attorney ' s fees and costs . In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law , then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform


Tiger Reef, Inc .


EX-10.2 4 f8k011017ex10ii_ecoarkhold.htm PURCHASE AGREEMENT , DATED AS OF DECEMBER 21, 2016 , BY AND BETWEEN ECOARK HOLDINGS, INC . AND REDDIAMOND PARTNERS LLC .

EX-10 . 2 4 f8k011017ex10ii_ecoarkhold . htm PURCHASE AGREEMENT , DATED AS OF DECEMBER 21 , 2016 , BY AND BETWEEN ECOARK HOLDINGS , INC . AND REDDIAMOND PARTNERS LLC .


PURCHASE AGREEMENT (the Agreement), dated as of January, 13, 2017 by and between ECOARK HOLDINGS, INC ., a Nevada corporation (the Company), and REDDIAMOND PARTNERS LLC a New Jersey limited liability company (the Investor).

PURCHASE AGREEMENT ( the Agreement ) , dated as of January , 13 , 2017 by and between ECOARK HOLDINGS , INC . , a Nevada corporation ( the Company ) , and REDDIAMOND PARTNERS LLC a New Jersey limited liability company ( the Investor ) .


(f)Exchange Act means the Securities Exchange Act of 1934 , as amended, and the rules and regulations promulgated thereunder.

( f ) Exchange Act means the Securities Exchange Act of 1934 , as amended , and the rules and regulations promulgated thereunder .


(t)Subsidiary means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under the Securities Act .< br/>

( t ) Subsidiary means any Person the Company wholly-owns or controls , or in which the Company , directly or indirectly , owns a majority of the voting stock or similar voting interest , in each case that would be disclosable pursuant to Item 601 ( b ) ( 21 ) of Regulation S-K promulgated under the Securities Act . & lt ; br / & gt ;


(a)Investment Purpose.The Investor is acquiring the Purchase Shares as principal for its own account and not with a view to or for distributing or reselling such Purchase Shares or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Investors right to sell the Purchase Shares at any time pursuant to the Registration Statement described herein or otherwise in compliance with applicable federal and state securities laws).The Investor is acquiring the Purchase Shares hereunder in the ordinary course of its business.

( a ) Investment Purpose . The Investor is acquiring the Purchase Shares as principal for its own account and not with a view to or for distributing or reselling such Purchase Shares or any part thereof in violation of the Securities Act or any applicable state securities law , has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law ( this representation and warranty not limiting the Investors right to sell the Purchase Shares at any time pursuant to the Registration Statement described herein or otherwise in compliance with applicable federal and state securities laws ) . The Investor is acquiring the Purchase Shares hereunder in the ordinary course of its business .


(d)Issuance of Purchase Shares.Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Purchase Shares (including, without limitation, the Initial Purchase Shares) shall be validly issued, fully paid and nonassessable and free and clear from all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. The Company has prepared and filed the Base Prospectus (as defined below) in conformity with the requirements of the Securities Act , including such amendments and supplements thereto as may have been required to the date of this Agreement. The Base Prospectus is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Base Prospectus or suspending or preventing the use of the Base Prospectus has been issued by the SEC and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the SEC. The Company, if required by the rules and regulations of the SEC, proposes to file the Prospectus with the SEC pursuant to Rule 424(b). At the time the Base Prospectus and any amendments thereto became effective, at the date of this Agreement and at each Closing Date, the Base Prospectus and any amendments or supplements thereto conformed and will conform in all material respects to the requirements of the Securities Act and, as of their respective effective dates, taken together as a whole, did 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 not misleading; and the Base Prospectus and any amendments or supplements thereto, at the time the Base Prospectus or such amendment or supplement thereto was issued and at each Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and, taken together as a whole, did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

( d ) Issuance of Purchase Shares . Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement , the Purchase Shares ( including , without limitation , the Initial Purchase Shares ) shall be validly issued , fully paid and nonassessable and free and clear from all taxes , liens , charges , restrictions , rights of first refusal and preemptive rights with respect to the issue thereof , with the holders being entitled to all rights accorded to a holder of Common Stock . The Company has prepared and filed the Base Prospectus ( as defined below ) in conformity with the requirements of the Securities Act , including such amendments and supplements thereto as may have been required to the date of this Agreement . The Base Prospectus is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Base Prospectus or suspending or preventing the use of the Base Prospectus has been issued by the SEC and no proceedings for that purpose have been instituted or , to the knowledge of the Company , are threatened by the SEC . The Company , if required by the rules and regulations of the SEC , proposes to file the Prospectus with the SEC pursuant to Rule 424 ( b ) . At the time the Base Prospectus and any amendments thereto became effective , at the date of this Agreement and at each Closing Date , the Base Prospectus and any amendments or supplements thereto conformed and will conform in all material respects to the requirements of the Securities Act and , as of their respective effective dates , taken together as a whole , did 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 not misleading ; and the Base Prospectus and any amendments or supplements thereto , at the time the Base Prospectus or such amendment or supplement thereto was issued and at each Closing Date , conformed and will conform in all material respects to the requirements of the Securities Act and , taken together as a whole , did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein , in light of the circumstances under which they were made , not misleading .


(f)SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve (12) months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the SEC Documents) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension.As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.None of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing.Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (GAAP), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.Except as set forth in the SEC Documents, the Company has received no notices or correspondence from the SEC for the one year preceding the date hereof.The SEC has not commenced any enforcement proceedings against the Company or any of its Subsidiaries.

( f ) SEC Documents ; Financial Statements . The Company has filed all reports , schedules , forms , statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act , including pursuant to Section 13 ( a ) or 15 ( d ) thereof , for the twelve ( 12 ) months preceding the date hereof ( or such shorter period as the Company was required by law or regulation to file such material ) ( the foregoing materials , including the exhibits thereto and documents incorporated by reference therein , being collectively referred to herein as the SEC Documents ) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension . As of their respective dates , the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act , as applicable . None of the SEC Documents , when filed , contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein , in the light of the circumstances under which they were made , not misleading . The financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing . Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved ( GAAP ) , except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP , and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended , subject , in the case of unaudited statements , to normal , immaterial , year-end audit adjustments . Except as set forth in the SEC Documents , the Company has received no notices or correspondence from the SEC for the one year preceding the date hereof . The SEC has not commenced any enforcement proceedings against the Company or any of its Subsidiaries .


(s)Foreign Corrupt Practices.Neither the Company, nor to the knowledge of the Company, any agent or other Person acting on behalf of the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by any Person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977 , as amended.

( s ) Foreign Corrupt Practices . Neither the Company , nor to the knowledge of the Company , any agent or other Person acting on behalf of the Company , has ( i ) directly or indirectly , used any funds for unlawful contributions , gifts , entertainment or other unlawful expenses related to foreign or domestic political activity , ( ii ) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds , ( iii ) failed to disclose fully any contribution made by the Company ( or made by any Person acting on its behalf of which the Company is aware ) which is in violation of law , or ( iv ) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977 , as amended .


(w)Investment Company. The Company is not, and immediately after receipt of payment for the Purchase Shares will not be, an investment company within the meaning of the Investment Company Act of 1940 , as amended.

( w ) Investment Company . The Company is not , and immediately after receipt of payment for the Purchase Shares will not be , an investment company within the meaning of the Investment Company Act of 1940 , as amended .


(y)Accountants.The Companys accountants are set forth in the SEC Documents and, to the knowledge of the Company, such accountants are an independent registered public accounting firm as required by the Securities Act .< br/>

( y ) Accountants . The Companys accountants are set forth in the SEC Documents and , to the knowledge of the Company , such accountants are an independent registered public accounting firm as required by the Securities Act . & lt ; br / & gt ;


(d)All federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction Documents and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders of, and all filings and registrations with, all federal, state and local courts or governmental agencies and all federal, state and local regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation, in each case those required under the Securities Act , the Exchange Act, applicable state securities or Blue Sky laws or applicable rules and regulations of the Principal Market, or otherwise required by the SEC, the Principal Market or any state securities regulators;

( d ) All federal , state and local governmental laws , rules and regulations applicable to the transactions contemplated by the Transaction Documents and necessary for the execution , delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been complied with , and all consents , authorizations and orders of , and all filings and registrations with , all federal , state and local courts or governmental agencies and all federal , state and local regulatory or self-regulatory agencies necessary for the execution , delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made , including , without limitation , in each case those required under the Securities Act , the Exchange Act , applicable state securities or Blue Sky laws or applicable rules and regulations of the Principal Market , or otherwise required by the SEC , the Principal Market or any state securities regulators ;


(g)All federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction Documents and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders of, and all filings and registrations with, all federal, state and local courts or governmental agencies and all federal, state and local regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation, in each case those required under the Securities Act , the Exchange Act, applicable state securities or Blue Sky laws or applicable rules and regulations of the Principal Market, or otherwise required by the SEC, the Principal Market or any state securities regulators;

( g ) All federal , state and local governmental laws , rules and regulations applicable to the transactions contemplated by the Transaction Documents and necessary for the execution , delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been complied with , and all consents , authorizations and orders of , and all filings and registrations with , all federal , state and local courts or governmental agencies and all federal , state and local regulatory or self-regulatory agencies necessary for the execution , delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made , including , without limitation , in each case those required under the Securities Act , the Exchange Act , applicable state securities or Blue Sky laws or applicable rules and regulations of the Principal Market , or otherwise required by the SEC , the Principal Market or any state securities regulators ;


(c) At any time after 90 days after the Commencement Date or immediately upon the completion of a fully underwritten offering of greater than $5,000,000 , the Company shall have the option to terminate this Agreement for any reason or for no reason by delivering notice (a Company Termination Notice) to the Investor electing to terminate this Agreement without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).The Company Termination Notice shall not be effective until one (1) Business Day after it has been received by the Investor. Upon receipt of a Company Termination Notice, if the Remaining Amount is greater than $4,000,000, the Company shall issue to the Investor, within two (2) Business Days of the Company Termination Notice, shares of the Companys common stock, registered pursuant to the Securities Act , with a value equal to 10% of the difference of $5,000,000 less the Remaining Amount divided by either the (i) price of the Companys Common Stock issued in the fully underwritten offering if the Company Termination Notice is issued in connection with a fully underwritten offering or (ii) the average VWAP of the Purchase Shares for the five consecutive Business Days ending on and including the date that the Investor receives the Company Termination Notice.

( c ) At any time after 90 days after the Commencement Date or immediately upon the completion of a fully underwritten offering of greater than $ 5 , 000 , 000 , the Company shall have the option to terminate this Agreement for any reason or for no reason by delivering notice ( a Company Termination Notice ) to the Investor electing to terminate this Agreement without any liability whatsoever of any party to any other party under this Agreement ( except as set forth below ) . The Company Termination Notice shall not be effective until one ( 1 ) Business Day after it has been received by the Investor . Upon receipt of a Company Termination Notice , if the Remaining Amount is greater than $ 4 , 000 , 000 , the Company shall issue to the Investor , within two ( 2 ) Business Days of the Company Termination Notice , shares of the Companys common stock , registered pursuant to the Securities Act , with a value equal to 10 % of the difference of $ 5 , 000 , 000 less the Remaining Amount divided by either the ( i ) price of the Companys Common Stock issued in the fully underwritten offering if the Company Termination Notice is issued in connection with a fully underwritten offering or ( ii ) the average VWAP of the Purchase Shares for the five consecutive Business Days ending on and including the date that the Investor receives the Company Termination Notice .


(d)This Agreement shall automatically terminate on the date that the Company sells and the Investor purchases $5,000,000 of Purchase Shares as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).

( d ) This Agreement shall automatically terminate on the date that the Company sells and the Investor purchases $ 5 , 000 , 000 of Purchase Shares as provided herein , without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement ( except as set forth below ) .


(a)Governing Law; Jurisdiction; Jury Trial.The corporate laws of the State of Nevada shall govern all issues concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation of this Agreement and the other Transaction Documents shall also be governed by the internal laws of the State of New York , without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York .Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York , New York, for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof.Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

( a ) Governing Law ; Jurisdiction ; Jury Trial . The corporate laws of the State of Nevada shall govern all issues concerning the relative rights of the Company and its stockholders . All other questions concerning the construction , validity , enforcement and interpretation of this Agreement and the other Transaction Documents shall also be governed by the internal laws of the State of New York , without giving effect to any choice of law or conflict of law provision or rule ( whether of the State of New York or any other jurisdictions ) that would cause the application of the laws of any jurisdictions other than the State of New York . Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York , New York , for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith , or with any transaction contemplated hereby or discussed herein , and hereby irrevocably waives , and agrees not to assert in any suit , action or proceeding , any claim that it is not personally subject to the jurisdiction of any such court , that such suit , action or proceeding is brought in an inconvenient forum or that the venue of such suit , action or proceeding is improper . Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit , action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof . Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law . EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE , AND AGREES NOT TO REQUEST , A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY .


If to the Investor: | With a copy to (which shall not constitute notice or service of process): ---|--- | RedDiamond Partners LLC | Robinson Brog Leinwand Green Genovese & Gluck P.C. 156 West Saddle River Road | 875 Third Avenue, 9th Floor Saddle River, NJ 07458 | New York, NY 10022 Telephone: (201) 818-5657 | Telephone: (212) 603-6300 E-mail: | E-mail: ded@robinsonbrog.com Attention: John DeNobile | Attention: David E. Danovitch, Esq.

If to the Investor : | With a copy to ( which shall not constitute notice or service of process ) : - - - | - - - | RedDiamond Partners LLC | Robinson Brog Leinwand Green Genovese & amp ; Gluck P . C . 156 West Saddle River Road | 875 Third Avenue , 9th Floor Saddle River , NJ 07458 | New York , NY 10022 Telephone : ( 201 ) 818-5657 | Telephone : ( 212 ) 603-6300 E-mail : | E-mail : ded @ robinsonbrog . com Attention : John DeNobile | Attention : David E . Danovitch , Esq .


| THE COMPANY: ---|--- | | ECOARK HOLDINGS, INC . | | | By: | /s/ Randy May | Name: | Randy May | Title: | Chief Executive Officer | | | INVESTOR: | | REDDIAMOND PARTNERS LLC | | | By: | /s/ John DeNobile | Name: | John DeNobile | Title: | Member

| THE COMPANY : - - - | - - - | | ECOARK HOLDINGS , INC . | | | By : | / s / Randy May | Name : | Randy May | Title : | Chief Executive Officer | | | INVESTOR : | | REDDIAMOND PARTNERS LLC | | | By : | / s / John DeNobile | Name : | John DeNobile | Title : | Member


REDDIAMOND PARTNERS LLC | ---|--- | | By: | /s/ John DeNobile | Name: | John DeNobile | Title: | Member | Date: | |

REDDIAMOND PARTNERS LLC | - - - | - - - | | By : | / s / John DeNobile | Name : | John DeNobile | Title : | Member | Date : | |


ROCKSTAR MEMBERSHIP INTEREST PURCHASE AGREEMENT


THIS AGREEMENT (Agreement) is made effective the 17th day of February, 2017 , among PAYMEON, INC. , a Nevada corporation (PAYM or the Buyer), Rockstar Acquisitions, LLC , a Florida limited liability company (RSA), VCVC, LLC, a Florida limited liability company (VCVC), EAC Management, LLC, a Florida limited liability company (EAC), JJM3, LLC, a Florida limited liability company (JJM3), RAW LLC, a Florida limited liability company (RAW), YellowTurtle Design, LLC, a Florida limited liability company (YellowTurtle), Erica Corkum, an individual (Erica C), Eric Corkum, an individual (Eric C), Jeannie Corkum, an individual (Jeannie C), Richard Laurin, an individual (Laurin), RVRM Holdings, LLC, a Connecticut limited liability company (RVRM) and Robert Ludwig, an individual (Ludwig). Together RSA, VCVC, EAC, JJM3, RAW, YellowTurtle, Erica C, Eric C, Jeannie C, Laurin, RVRM and Ludwig are known as Sellers. The Buyer and the Sellers (including each legal entity and individual comprising the Sellers) are each a Party and both together are the Parties.

THIS AGREEMENT ( Agreement ) is made effective the 17th day of February , 2017 , among PAYMEON , INC . , a Nevada corporation ( PAYM or the Buyer ) , Rockstar Acquisitions , LLC , a Florida limited liability company ( RSA ) , VCVC , LLC , a Florida limited liability company ( VCVC ) , EAC Management , LLC , a Florida limited liability company ( EAC ) , JJM3 , LLC , a Florida limited liability company ( JJM3 ) , RAW LLC , a Florida limited liability company ( RAW ) , YellowTurtle Design , LLC , a Florida limited liability company ( YellowTurtle ) , Erica Corkum , an individual ( Erica C ) , Eric Corkum , an individual ( Eric C ) , Jeannie Corkum , an individual ( Jeannie C ) , Richard Laurin , an individual ( Laurin ) , RVRM Holdings , LLC , a Connecticut limited liability company ( RVRM ) and Robert Ludwig , an individual ( Ludwig ) . Together RSA , VCVC , EAC , JJM3 , RAW , YellowTurtle , Erica C , Eric C , Jeannie C , Laurin , RVRM and Ludwig are known as Sellers . The Buyer and the Sellers ( including each legal entity and individual comprising the Sellers ) are each a Party and both together are the Parties .


Purchase Consideration. The total Purchase Consideration to be paid by the Buyer to the Sellers for the purchase of the RSA Membership Interests is NINETY-FIVE MILLION FIVE HUNDRED THOUSAND ( 95,500,000 ) shares of PAYM restricted common stock. The Purchase Consideration will be immediately and unconditionally issued to the Sellers in proportion to their pro rata membership interests in RSA, as shown on an Exhibit to this Agreement.

Purchase Consideration . The total Purchase Consideration to be paid by the Buyer to the Sellers for the purchase of the RSA Membership Interests is NINETY-FIVE MILLION FIVE HUNDRED THOUSAND ( 95 , 500 , 000 ) shares of PAYM restricted common stock . The Purchase Consideration will be immediately and unconditionally issued to the Sellers in proportion to their pro rata membership interests in RSA , as shown on an Exhibit to this Agreement .


Authority. The Sellers have taken all necessary action(s) to authorize the execution, delivery and performance of this Agreement and have adequate power, authority and legal right to enter into, execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement is legal, valid and binding with respect to each of the Sellers and RSA, and is enforceable in accordance with its terms. On execution, delivery and performance of this Agreement in accordance with its terms, the Buyer will own one hundred percent ( 100% ) of the RSA Membership Interests free of all claims, liens, encumbrances and liabilities.

Authority . The Sellers have taken all necessary action ( s ) to authorize the execution , delivery and performance of this Agreement and have adequate power , authority and legal right to enter into , execute , deliver and perform this Agreement and to consummate the transactions contemplated hereby . This Agreement is legal , valid and binding with respect to each of the Sellers and RSA , and is enforceable in accordance with its terms . On execution , delivery and performance of this Agreement in accordance with its terms , the Buyer will own one hundred percent ( 100 % ) of the RSA Membership Interests free of all claims , liens , encumbrances and liabilities .


Due Diligence: The Sellers are Accredited Investors (as such term is defined under the Securities Act of 1933 , as amended) and have reviewed the public filings of PAYM, including PAYMs annual report on Form 10-K for the year ended December 31, 2015 and PAYMs most recent quarterly report on Form 10-Q for the period ended September 30, 2016. The Seller(s) and their representatives, if any, have been given the opportunity to conduct satisfactory due diligence of PAYM, and have been given the opportunity to speak with PAYM management during their due diligence.

Due Diligence : The Sellers are Accredited Investors ( as such term is defined under the Securities Act of 1933 , as amended ) and have reviewed the public filings of PAYM , including PAYMs annual report on Form 10-K for the year ended December 31 , 2015 and PAYMs most recent quarterly report on Form 10-Q for the period ended September 30 , 2016 . The Seller ( s ) and their representatives , if any , have been given the opportunity to conduct satisfactory due diligence of PAYM , and have been given the opportunity to speak with PAYM management during their due diligence .


Edward A. Cespedes, Manager


RAW LLC, DONALD SMITH, MANAGER


EAC Management, LLC, ATTN : Edward A. Cespedes

EAC Management , LLC , ATTN : Edward A . Cespedes


Address: 5961 NE 18th Terrace, Ft. Laud., Fl 33308

Address : 5961 NE 18th Terrace , Ft . Laud . , Fl 33308


224 Wyse Road, Dartmouth, Nova Scotia, Canada B3A1M9

224 Wyse Road , Dartmouth , Nova Scotia , Canada B3A1M9


1334 Avocado Isle, Fort Lauderdale, Fl 33315

1334 Avocado Isle , Fort Lauderdale , Fl 33315


216 Crown Street, Suite 502


New Haven, Ct. 06510


Closing Working Capital means: (a) Current Assets, less (b) Current Liabilities, determined as of the close of business on February 6, 2017 .

Closing Working Capital means : ( a ) Current Assets , less ( b ) Current Liabilities , determined as of the close of business on February 6 , 2017 .


Escrow Share Amount means 529,350 Consideration Shares to be deposited with the Escrow Agent and held in escrow pursuant to the Escrow Agreement.

Escrow Share Amount means 529 , 350 Consideration Shares to be deposited with the Escrow Agent and held in escrow pursuant to the Escrow Agreement .


Securities Act means the Securities Act of 1933 , as amended, and the rule and regulations promulgated thereunder.

Securities Act means the Securities Act of 1933 , as amended , and the rule and regulations promulgated thereunder .


(b) all PTO owed under applicable law to employees of the Seller at the Closing upon termination of employment with Seller, which PTO accruals as of February 6, 2017 are as set forth on Section 2.03(b) of the Disclosure Schedule;

( b ) all PTO owed under applicable law to employees of the Seller at the Closing upon termination of employment with Seller , which PTO accruals as of February 6 , 2017 are as set forth on Section 2 . 03 ( b ) of the Disclosure Schedule ;


Section 4.04 Unaudited Financial Statements. Complete copies of the unaudited financial statements consisting of the balance sheet of the Business as at December 31, 2016 and 2015 and the related statements of income and retained earnings, stockholders' equity and cash flow for the years then ended (the Unaudited Financial Statements) have been delivered to Buyer. The Unaudited Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved, subject to normal and recurring year-end adjustments (the effect of which will not be materially adverse), the absence of notes (that, if presented, would not differ materially from those presented in audited financial statements prepared in accordance with GAAP) and adjustments related to stock-based compensation, preferred warrant expenses, discounts of convertible debt or accrued income tax assets and liabilities. The Unaudited Financial Statements are based on the books and records of the Business, and fairly present in all material respects the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business for the periods indicated. The balance sheet of the Business as of December 31, 2016 is referred to herein as the Balance Sheet and the date thereof as the Balance Sheet Date. Seller maintains a standard system of accounting for the Business established and administered in accordance with GAAP, with the exception to FASB ASC 718 Compensation Stock Compensation, FASB ASC 505-50 Accounting for Equity Instrument that are Issued to Other than Employees for Acquiring, or in Conjunction with Selling,

Section 4 . 04 Unaudited Financial Statements . Complete copies of the unaudited financial statements consisting of the balance sheet of the Business as at December 31 , 2016 and 2015 and the related statements of income and retained earnings , stockholders ' equity and cash flow for the years then ended ( the Unaudited Financial Statements ) have been delivered to Buyer . The Unaudited Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved , subject to normal and recurring year-end adjustments ( the effect of which will not be materially adverse ) , the absence of notes ( that , if presented , would not differ materially from those presented in audited financial statements prepared in accordance with GAAP ) and adjustments related to stock-based compensation , preferred warrant expenses , discounts of convertible debt or accrued income tax assets and liabilities . The Unaudited Financial Statements are based on the books and records of the Business , and fairly present in all material respects the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business for the periods indicated . The balance sheet of the Business as of December 31 , 2016 is referred to herein as the Balance Sheet and the date thereof as the Balance Sheet Date . Seller maintains a standard system of accounting for the Business established and administered in accordance with GAAP , with the exception to FASB ASC 718 Compensation Stock Compensation , FASB ASC 505-50 Accounting for Equity Instrument that are Issued to Other than Employees for Acquiring , or in Conjunction with Selling ,


Section 6.14 Transfer Taxes. All transfer , documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the other Transaction Documents (including any real property transfer Tax and any other similar Tax) shall be divided equally between Buyer and Seller and paid by Buyer when due. The parties shall cooperate to timely file any Tax Return or other document with respect to such Taxes or fees, and obtain any available exemption reasonably available with respect to such Taxes or fees.

Section 6 . 14 Transfer Taxes . All transfer , documentary , sales , use , stamp , registration , value added and other such Taxes and fees ( including any penalties and interest ) incurred in connection with this Agreement and the other Transaction Documents ( including any real property transfer Tax and any other similar Tax ) shall be divided equally between Buyer and Seller and paid by Buyer when due . The parties shall cooperate to timely file any Tax Return or other document with respect to such Taxes or fees , and obtain any available exemption reasonably available with respect to such Taxes or fees .


2400 Sand Hill Road, Suite 150


500 President Clinton Avenue


(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction).

( a ) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule ( whether of the State of Nevada or any other jurisdiction ) .


This Securities Purchase Agreement (this Agreement) is dated as of January 12, 2017 , between Naked Brand Group Inc. , a Nevada corporation (the Company), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a Purchaser and collectively the Purchasers).

This Securities Purchase Agreement ( this Agreement ) is dated as of January 12 , 2017 , between Naked Brand Group Inc . , a Nevada corporation ( the Company ) , and each purchaser identified on the signature pages hereto ( each , including its successors and assigns , a Purchaser and collectively the Purchasers ) .


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

Affiliate means any Person that , directly or indirectly through one or more intermediaries , controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act . < sup > & lt ; br / & gt ;


Prospectus Supplement means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the Company to each Purchaser at the Closing.

Prospectus Supplement means the supplement to the Prospectus complying with Rule 424 ( b ) of the Securities Act that is filed with the Commission and delivered by the Company to each Purchaser at the Closing .


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

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


(c)The Shares to be issued and sold by the Company to the Purchasers hereunder have been duly authorized and the Shares, when issued and delivered against payment therefor as provided herein, will be validly issued, fully paid and non-assessable and free of any preemptive or similar rights. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act , which became effective on October 19, 2016 (the Effective Date), including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement in connection with the sale of the Shares hereunder. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, proposes to file the Prospectus, with the Commission pursuant to Rule 424(b) in relation to the sale of the Shares. At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and 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 not misleading; and the Prospectus and any amendments or supplements thereto, at time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and will conform to the description thereof contained in the Registration Statement and the Prospectus.

( c ) The Shares to be issued and sold by the Company to the Purchasers hereunder have been duly authorized and the Shares , when issued and delivered against payment therefor as provided herein , will be validly issued , fully paid and non-assessable and free of any preemptive or similar rights . The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act , which became effective on October 19 , 2016 ( the Effective Date ) , including the Prospectus , and such amendments and supplements thereto as may have been required to the date of this Agreement in connection with the sale of the Shares hereunder . The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or , to the knowledge of the Company , are threatened by the Commission . The Company , if required by the rules and regulations of the Commission , proposes to file the Prospectus , with the Commission pursuant to Rule 424 ( b ) in relation to the sale of the Shares . At the time the Registration Statement and any amendments thereto became effective , at the date of this Agreement and at the Closing Date , the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and 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 not misleading ; and the Prospectus and any amendments or supplements thereto , at time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date , conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein , in light of the circumstances under which they were made , not misleading , and will conform to the description thereof contained in the Registration Statement and the Prospectus .


(h)The financial statements, together with the related notes and schedules, included or incorporated by reference in the Registration Statement, and the Prospectus fairly present in all material respects the financial position and the results of operations and changes in financial position of the Company and its consolidated Subsidiaries and other consolidated entities at the respective dates or for the respective periods therein specified. Such financial statements and related notes and schedules have been prepared in accordance with the generally accepted accounting principles in the United States (GAAP) applied on a consistent basis throughout the periods involved except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP. Such financial statements, together with the related notes and schedules, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the Securities Act , the Exchange Act , and the Rules and Regulations and the rules and regulations under the Exchange Act . No other financial statements or supporting schedules or exhibits are required by the Securities Act or the Rules and Regulations to be described, or included or incorporated by reference in the Registration Statement or the Prospectus.

( h ) The financial statements , together with the related notes and schedules , included or incorporated by reference in the Registration Statement , and the Prospectus fairly present in all material respects the financial position and the results of operations and changes in financial position of the Company and its consolidated Subsidiaries and other consolidated entities at the respective dates or for the respective periods therein specified . Such financial statements and related notes and schedules have been prepared in accordance with the generally accepted accounting principles in the United States ( GAAP ) applied on a consistent basis throughout the periods involved except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP . Such financial statements , together with the related notes and schedules , included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the Securities Act , the Exchange Act , and the Rules and Regulations and the rules and regulations under the Exchange Act . No other financial statements or supporting schedules or exhibits are required by the Securities Act or the Rules and Regulations to be described , or included or incorporated by reference in the Registration Statement or the Prospectus .


(l)Neither the Company nor any Subsidiary is or, after giving effect to the offering of the Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will become an investment company within the meaning of the Investment Company Act of 1940 , as amended, and the rules and regulations of the Commission thereunder.

( l ) Neither the Company nor any Subsidiary is or , after giving effect to the offering of the Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus , will become an investment company within the meaning of the Investment Company Act of 1940 , as amended , and the rules and regulations of the Commission thereunder .


(f)Group. Such Purchaser represents that it is not a group within the meaning of Section 13d-5 under the Exchange Act with any holder or beneficial owner of the Companys securities and in calculating and reporting such Purchasers beneficial ownership, such Purchaser is not required under the rules and regulations promulgated under the Exchange Act to include the beneficial ownership of the securities of the Company held by another holder or beneficial owner of the Companys securities.

( f ) Group . Such Purchaser represents that it is not a group within the meaning of Section 13d-5 under the Exchange Act with any holder or beneficial owner of the Companys securities and in calculating and reporting such Purchasers beneficial ownership , such Purchaser is not required under the rules and regulations promulgated under the Exchange Act to include the beneficial ownership of the securities of the Company held by another holder or beneficial owner of the Companys securities .


4.1Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act ) that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.

4 . 1Integration . The Company shall not sell , offer for sale or solicit offers to buy or otherwise negotiate in respect of any security ( as defined in Section 2 of the Securities Act ) that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction .


4.2Securities Laws Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City time) on the Trading Day immediately following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act . The Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).

4 . 2Securities Laws Disclosure ; Publicity . The Company shall ( a ) by 9 : 00 a . m . ( New York City time ) on the Trading Day immediately following the date hereof , issue a press release disclosing the material terms of the transactions contemplated hereby , and ( b ) file a Current Report on Form 8-K , including the Transaction Documents as exhibits thereto , with the Commission within the time required by the Exchange Act . The Company shall not publicly disclose the name of any Purchaser , or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market , without the prior written consent of such Purchaser , except ( a ) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and ( b ) to the extent such disclosure is required by law or Trading Market regulations , in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause ( b ) .


5.9Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without regard to the conflicts of laws principles of any jurisdictions. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of the Transaction Documents, then, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for its reasonable attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

5 . 9Governing Law . All questions concerning the construction , validity , enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without regard to the conflicts of laws principles of any jurisdictions . Each party agrees that all legal proceedings concerning the interpretations , enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents ( whether brought against a party hereto or its respective affiliates , directors , officers , shareholders , partners , members , employees or agents ) shall be commenced exclusively in the state and federal courts sitting in the City of New York . Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York , Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein ( including with respect to the enforcement of any of the Transaction Documents ) , and hereby irrevocably waives , and agrees not to assert in any suit , action or proceeding , any claim that it is not personally subject to the jurisdiction of any such court , that such suit , action or proceeding is improper or is an inconvenient venue for such proceeding . Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit , action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery ( with evidence of delivery ) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof . Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law . If either party shall commence an action , suit or proceeding to enforce any provisions of the Transaction Documents , then , the prevailing party in such action , suit or proceeding shall be reimbursed by the other party for its reasonable attorneys fees and other costs and expenses incurred with the investigation , preparation and prosecution of such action or proceeding .


EX-10.42 3 trtc_ex1042.htm FORM OF SECURITIES PURCHASE AGREEMENT

EX-10 . 42 3 trtc_ex1042 . htm FORM OF SECURITIES PURCHASE AGREEMENT


This SECURITIES PURCHASE AGREEMENT (the Agreement), dated as of February 22, 2017 , is by and among Terra Tech Corp. , a Nevada corporation with headquarters located at 4700 Von Karman Ave., Suite 110, Newport Beach, CA 92660 (theCompany), and each of the investors listed on the Schedule of Buyers attached hereto (individually, a Buyer and collectively, the Buyers).

This SECURITIES PURCHASE AGREEMENT ( the Agreement ) , dated as of February 22 , 2017 , is by and among Terra Tech Corp . , a Nevada corporation with headquarters located at 4700 Von Karman Ave . , Suite 110 , Newport Beach , CA 92660 ( theCompany ) , and each of the investors listed on the Schedule of Buyers attached hereto ( individually , a Buyer and collectively , the Buyers ) .


B. The Company will sell and issue the Convertible Notes (as defined below) to each Buyer pursuant to a currently effective shelf registration statement on Form S-3 (File No. 333-210673 ) (the Registration Statement), which Registration Statement has been declared effective in accordance with the Securities Act of 1933 , as amended (the 1933 Act ), by the United States Securities and Exchange Commission (the SEC).

B . The Company will sell and issue the Convertible Notes ( as defined below ) to each Buyer pursuant to a currently effective shelf registration statement on Form S-3 ( File No . 333-210673 ) ( the Registration Statement ) , which Registration Statement has been declared effective in accordance with the Securities Act of 1933 , as amended ( the 1933 Act ) , by the United States Securities and Exchange Commission ( the SEC ) .


(d) Investment Purpose. Each Buyer is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of 1933 Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the 1933 Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation of the 1933 Act or any applicable state securities law (this representation and warranty not limiting any Buyers right to sell the Securities at any time pursuant to any registration statement registering the resale thereof or otherwise in compliance with applicable federal and state securities laws). Each Buyer is acquiring the Securities hereunder in the ordinary course of its business.

( d ) Investment Purpose . Each Buyer is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of 1933 Act or any applicable state securities law , has no present intention of distributing any of such Securities in violation of the 1933 Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation of the 1933 Act or any applicable state securities law ( this representation and warranty not limiting any Buyers right to sell the Securities at any time pursuant to any registration statement registering the resale thereof or otherwise in compliance with applicable federal and state securities laws ) . Each Buyer is acquiring the Securities hereunder in the ordinary course of its business .


(h) Transfer or Sale. Each Buyer understands that (i) the Securities may not be offered for sale, sold, assigned or transferred unless (A) registered pursuant to the 1933 Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made in reliance on Rule 144 under the 1933 Act may be made only in accordance with the terms of Rule 144 under the 1933 Act and further, if Rule 144 under the 1933 Act is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act ) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder.

( h ) Transfer or Sale . Each Buyer understands that ( i ) the Securities may not be offered for sale , sold , assigned or transferred unless ( A ) registered pursuant to the 1933 Act or ( B ) an exemption exists permitting such Securities to be sold , assigned or transferred without such registration ; ( ii ) any sale of the Securities made in reliance on Rule 144 under the 1933 Act may be made only in accordance with the terms of Rule 144 under the 1933 Act and further , if Rule 144 under the 1933 Act is not applicable , any resale of the Securities under circumstances in which the seller ( or the Person through whom the sale is made ) may be deemed to be an underwriter ( as that term is defined in the 1933 Act ) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder .


(d) Issuance of Securities; Registration Statement . The issuance of the Convertible Notes are duly authorized and, upon issuance in accordance with the terms of the Transaction Documents, shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively Liens) with respect to the issuance thereof. As of the Closing, the Company shall have reserved from its duly authorized capital stock not less than 100% of the sum of (i) the maximum number of Conversion Shares issuable pursuant to the terms of the Convertible Notes, including, without limitation, upon conversion or otherwise (assuming for such purpose that (x) such Convertible Notes are convertible at the initial Conversion Price (as defined in the Convertible Notes), (y) dividends on the Convertible Notes shall accrue through the twelve month anniversary of the Closing Date and will be converted in shares of Common Stock at a dividend conversion price equal to the initial Conversion Price and (z) any such conversion shall not take into account any limitations on the conversion of the Convertible Notes set forth in the Convertible Notes) (the Required Reserve Amount). Common Stock means (i) the Companys shares of common stock, $0.001 par value per share, and (ii) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock. The issuance of the Conversion Shares are duly authorized, and upon issuance in accordance with the Convertible Notes, the Conversion Shares when issued, will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes or Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. The issuance by the Company of the Securities have been registered under the 1933 Act , the Securities are being issued pursuant to the Registration Statement and all of the Securities are freely transferable and freely tradable by each of the Buyers without restriction, whether by way of registration or some exemption therefrom. The Registration Statement is effective and available for the issuance of the Securities thereunder and the Company has not received any notice that the SEC has issued or intends to issue a stop-order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing to do so. The Plan of Distribution section under the Registration Statement permits the issuance and sale of the Securities hereunder and as contemplated by the other Transaction Documents. Upon receipt of the Securities, each of the Buyers will have good and marketable title to the Securities. The Registration Statement and any prospectus included therein, including the Prospectus and the Prospectus Supplement, complied in all material respects with the requirements of the 1933 Act and the 1934 Act and the rules and regulations of the SEC promulgated thereunder and all other applicable laws and regulations. At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at each deemed effective date thereof pursuant to Rule 430B(f)(2) of the 1933 Act , the Registration Statement and any amendments thereto complied and will comply in all material respects with the requirements of the 1933 Act and did not and 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 not misleading. The Prospectus and any amendments or supplements thereto (including, without limitation the Prospectus Supplement), at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, complied, and will comply, in all material respects with the requirements of the 1933 Act and did not, and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company meets all of the requirements for the use of Form S-3 under the 1933 Act for the offering and sale of the Securities contemplated by this Agreement and the other Transaction Documents, and the SEC has not notified the Company of any objection to the use of the form of the Registration Statement pursuant to Rule 401(g)(1) under the 1933 Act . The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act . At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act ) relating to any of the Securities, the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the 1933 Act ). The Company (i) has not distributed any offering material in connection with the offer or sale of any of the Securities and (ii) until no Buyer holds any of the Securities, shall not distribute any offering material in connection with the offer or sale of any of the Securities to, or by, any of the Buyers (if required), in each case, other than the Registration Statement, the Prospectus or the Prospectus Supplement. The offering of the Securities have been registered with the SEC on Form S-3 under the 1933 Act , and the Securities are being offered pursuant to Rule 415 promulgated under the 1933 Act .< br/>

( d ) Issuance of Securities ; Registration Statement . The issuance of the Convertible Notes are duly authorized and , upon issuance in accordance with the terms of the Transaction Documents , shall be validly issued , fully paid and non-assessable and free from all preemptive or similar rights , mortgages , defects , claims , liens , pledges , charges , taxes , rights of first refusal , encumbrances , security interests and other encumbrances ( collectively Liens ) with respect to the issuance thereof . As of the Closing , the Company shall have reserved from its duly authorized capital stock not less than 100 % of the sum of ( i ) the maximum number of Conversion Shares issuable pursuant to the terms of the Convertible Notes , including , without limitation , upon conversion or otherwise ( assuming for such purpose that ( x ) such Convertible Notes are convertible at the initial Conversion Price ( as defined in the Convertible Notes ) , ( y ) dividends on the Convertible Notes shall accrue through the twelve month anniversary of the Closing Date and will be converted in shares of Common Stock at a dividend conversion price equal to the initial Conversion Price and ( z ) any such conversion shall not take into account any limitations on the conversion of the Convertible Notes set forth in the Convertible Notes ) ( the Required Reserve Amount ) . Common Stock means ( i ) the Companys shares of common stock , $ 0 . 001 par value per share , and ( ii ) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock . The issuance of the Conversion Shares are duly authorized , and upon issuance in accordance with the Convertible Notes , the Conversion Shares when issued , will be validly issued , fully paid and non-assessable and free from all preemptive or similar rights , taxes or Liens with respect to the issue thereof , with the holders being entitled to all rights accorded to a holder of Common Stock . The issuance by the Company of the Securities have been registered under the 1933 Act , the Securities are being issued pursuant to the Registration Statement and all of the Securities are freely transferable and freely tradable by each of the Buyers without restriction , whether by way of registration or some exemption therefrom . The Registration Statement is effective and available for the issuance of the Securities thereunder and the Company has not received any notice that the SEC has issued or intends to issue a stop-order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement , either temporarily or permanently , or intends or has threatened in writing to do so . The Plan of Distribution section under the Registration Statement permits the issuance and sale of the Securities hereunder and as contemplated by the other Transaction Documents . Upon receipt of the Securities , each of the Buyers will have good and marketable title to the Securities . The Registration Statement and any prospectus included therein , including the Prospectus and the Prospectus Supplement , complied in all material respects with the requirements of the 1933 Act and the 1934 Act and the rules and regulations of the SEC promulgated thereunder and all other applicable laws and regulations . At the time the Registration Statement and any amendments thereto became effective , at the date of this Agreement and at each deemed effective date thereof pursuant to Rule 430B ( f ) ( 2 ) of the 1933 Act , the Registration Statement and any amendments thereto complied and will comply in all material respects with the requirements of the 1933 Act and did not and 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 not misleading . The Prospectus and any amendments or supplements thereto ( including , without limitation the Prospectus Supplement ) , at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date , complied , and will comply , in all material respects with the requirements of the 1933 Act and did not , and will not , contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein , in light of the circumstances under which they were made , not misleading . The Company meets all of the requirements for the use of Form S-3 under the 1933 Act for the offering and sale of the Securities contemplated by this Agreement and the other Transaction Documents , and the SEC has not notified the Company of any objection to the use of the form of the Registration Statement pursuant to Rule 401 ( g ) ( 1 ) under the 1933 Act . The Registration Statement meets the requirements set forth in Rule 415 ( a ) ( 1 ) ( x ) under the 1933 Act . At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer ( within the meaning of Rule 164 ( h ) ( 2 ) under the 1933 Act ) relating to any of the Securities , the Company was not and is not an Ineligible Issuer ( as defined in Rule 405 under the 1933 Act ) . The Company ( i ) has not distributed any offering material in connection with the offer or sale of any of the Securities and ( ii ) until no Buyer holds any of the Securities , shall not distribute any offering material in connection with the offer or sale of any of the Securities to , or by , any of the Buyers ( if required ) , in each case , other than the Registration Statement , the Prospectus or the Prospectus Supplement . The offering of the Securities have been registered with the SEC on Form S-3 under the 1933 Act , and the Securities are being offered pursuant to Rule 415 promulgated under the 1933 Act . & lt ; br / & gt ;


(dd) Sarbanes-Oxley Act. The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof.

( dd ) Sarbanes-Oxley Act . The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof , and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof .


(i) Except as provided in this Agreement and other than periodic reports required to be filed pursuant to the 1934 Act, the Company shall not file with the SEC any amendment to the Registration Statement that relates to the Buyer, this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby or file with the SEC any Prospectus Supplement that relates to the Buyer, this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby with respect to which (a) the Buyer shall not previously have been advised, (b) the Company shall not have given due consideration to any comments thereon received from the Buyer or its counsel, or (c) the Buyer shall reasonably object after being so advised, unless the Company reasonably has determined that it is necessary to amend the Registration Statement or make any supplement to the Prospectus to comply with the 1933 Act or any other applicable law or regulation, in which case the Company shall promptly (but in no event later than 24 hours) so inform the Buyer, the Buyer shall be provided with a reasonable opportunity to review and comment upon any disclosure relating to the Buyer and the Company shall expeditiously furnish to the Buyer an electronic copy thereof. In addition, for so long as, in the reasonable opinion of counsel for the Buyer, the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act ) is required to be delivered in connection with any acquisition or sale of the Convertible Notes or the Conversion Shares by the Buyer, the Company shall not file any Prospectus Supplement with respect to such securities without delivering or making available a copy of such Prospectus Supplement, together with the Prospectus, to the Buyer promptly.

( i ) Except as provided in this Agreement and other than periodic reports required to be filed pursuant to the 1934 Act , the Company shall not file with the SEC any amendment to the Registration Statement that relates to the Buyer , this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby or file with the SEC any Prospectus Supplement that relates to the Buyer , this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby with respect to which ( a ) the Buyer shall not previously have been advised , ( b ) the Company shall not have given due consideration to any comments thereon received from the Buyer or its counsel , or ( c ) the Buyer shall reasonably object after being so advised , unless the Company reasonably has determined that it is necessary to amend the Registration Statement or make any supplement to the Prospectus to comply with the 1933 Act or any other applicable law or regulation , in which case the Company shall promptly ( but in no event later than 24 hours ) so inform the Buyer , the Buyer shall be provided with a reasonable opportunity to review and comment upon any disclosure relating to the Buyer and the Company shall expeditiously furnish to the Buyer an electronic copy thereof . In addition , for so long as , in the reasonable opinion of counsel for the Buyer , the Prospectus ( or in lieu thereof , the notice referred to in Rule 173 ( a ) under the 1933 Act ) is required to be delivered in connection with any acquisition or sale of the Convertible Notes or the Conversion Shares by the Buyer , the Company shall not file any Prospectus Supplement with respect to such securities without delivering or making available a copy of such Prospectus Supplement , together with the Prospectus , to the Buyer promptly .


(ii) The Company has not made, and agrees that unless it obtains the prior written consent of the Buyer it will not make, an offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 promulgated under the 1933 Act ( an Issuer Free Writing Prospectus) or that would otherwise constitute a free writing prospectus as defined in Rule 405 promulgated under the 1933 Act ( a Free Writing Prospectus) required to be filed by the Company or the Buyer with the SEC or retained by the Company or the Buyer under Rule 433 under the 1933 Act . The Buyer has not made, and agrees that unless it obtains the prior written consent of the Company it will not make, an offer relating to the Securities that would constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the 1933 Act . Any such Issuer Free Writing Prospectus or other Free Writing Prospectus consented to by the Buyer or the Company is referred to in this Agreement as a Permitted Free Writing Prospectus. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.

( ii ) The Company has not made , and agrees that unless it obtains the prior written consent of the Buyer it will not make , an offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 promulgated under the 1933 Act ( an Issuer Free Writing Prospectus ) or that would otherwise constitute a free writing prospectus as defined in Rule 405 promulgated under the 1933 Act ( a Free Writing Prospectus ) required to be filed by the Company or the Buyer with the SEC or retained by the Company or the Buyer under Rule 433 under the 1933 Act . The Buyer has not made , and agrees that unless it obtains the prior written consent of the Company it will not make , an offer relating to the Securities that would constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the 1933 Act . Any such Issuer Free Writing Prospectus or other Free Writing Prospectus consented to by the Buyer or the Company is referred to in this Agreement as a Permitted Free Writing Prospectus . The Company agrees that ( x ) it has treated and will treat , as the case may be , each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and ( y ) it has complied and will comply , as the case may be , with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus , including in respect of timely filing with the SEC , legending and record keeping .


(d) Stop Orders. The Company shall advise the Buyer as soon as practicable and shall confirm such advice in writing: (i) of the Companys receipt of notice of any request by the SEC for amendment of or a supplement to the Registration Statement, the Prospectus, any Permitted Free Writing Prospectus or for any additional information; (ii) of the Companys receipt of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending the use of the Prospectus or any Prospectus Supplement, or of the suspension of qualification of the Convertible Notes for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose; (iii) of the Company becoming aware of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus untrue or which requires the making of any additions to or changes to the statements then made in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in order to state a material fact required by the 1933 Act to be stated therein or necessary in order to make the statements then made therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or of the necessity to amend the Registration Statement or supplement the Prospectus or any Permitted Free Writing Prospectus to comply with the 1933 Act or any other law or (iv) if at any time following the date hereof the Registration Statement is not effective or is not otherwise available for the issuance of the Conversion Shares or any Prospectus contained therein is not available for use for any other reason. The Company shall not be required to disclose to the Buyer the substance or specific reasons of any of the events set forth in clauses (i) through (iv) of the immediately preceding sentence, but rather, shall only be required to disclose that the event has occurred. Thereafter, the Company shall promptly notify such holders when the Registration Statement, the Prospectus, any Permitted Free Writing Prospectus and/or any amendment or supplement thereto, as applicable, is effective and available for the issuance of the Conversion Shares. If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending the use of the Prospectus or any Prospectus Supplement, the Company shall use its reasonable best efforts to obtain the withdrawal of such order at the earliest possible time.

( d ) Stop Orders . The Company shall advise the Buyer as soon as practicable and shall confirm such advice in writing : ( i ) of the Companys receipt of notice of any request by the SEC for amendment of or a supplement to the Registration Statement , the Prospectus , any Permitted Free Writing Prospectus or for any additional information ; ( ii ) of the Companys receipt of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending the use of the Prospectus or any Prospectus Supplement , or of the suspension of qualification of the Convertible Notes for offering or sale in any jurisdiction , or the initiation or contemplated initiation of any proceeding for such purpose ; ( iii ) of the Company becoming aware of the happening of any event , which makes any statement of a material fact made in the Registration Statement , the Prospectus or any Permitted Free Writing Prospectus untrue or which requires the making of any additions to or changes to the statements then made in the Registration Statement , the Prospectus or any Permitted Free Writing Prospectus in order to state a material fact required by the 1933 Act to be stated therein or necessary in order to make the statements then made therein ( in the case of the Prospectus , in light of the circumstances under which they were made ) not misleading , or of the necessity to amend the Registration Statement or supplement the Prospectus or any Permitted Free Writing Prospectus to comply with the 1933 Act or any other law or ( iv ) if at any time following the date hereof the Registration Statement is not effective or is not otherwise available for the issuance of the Conversion Shares or any Prospectus contained therein is not available for use for any other reason . The Company shall not be required to disclose to the Buyer the substance or specific reasons of any of the events set forth in clauses ( i ) through ( iv ) of the immediately preceding sentence , but rather , shall only be required to disclose that the event has occurred . Thereafter , the Company shall promptly notify such holders when the Registration Statement , the Prospectus , any Permitted Free Writing Prospectus and / or any amendment or supplement thereto , as applicable , is effective and available for the issuance of the Conversion Shares . If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending the use of the Prospectus or any Prospectus Supplement , the Company shall use its reasonable best efforts to obtain the withdrawal of such order at the earliest possible time .