**Exhibit 4.27** 

 

**SECURITIESPURCHASE AGREEMENT**

 

ThisSecurities Purchase Agreement (this “Agreement”) is dated as of September ___, 2015, between BlueNRGY GroupLimited, an Australian corporation (the “Company”), and each purchaser identified on the signature pages hereto(each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).

 

WHEREAS,the parties desire that, upon the terms and subject to the conditions contained herein, the Purchasers shall have the right topurchase from the Company, from time to time as provided herein, and the Company shall be obligated to sell to the Purchasers,Preferred Shares of the Company’s wholly-owned subsidiary, Draker Corporation (fkaBlueD Acquisition Corporation), for atotal aggregate cash purchase price of up to US$2,000,000.00 (the “Offering Amount”).

 

NOW,THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable considerationthe receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:

 

**ARTICLEI.**

 

**DEFINITIONS**

 

1.1       Definitions:

 

“AcquiringPerson” shall have the meaning ascribed to such term in Section 4.5.

 

“Action”shall have the meaning ascribed to such term in Section 3.1(j).

 

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

 

“Boardof Directors” means the board of directors of the Company.

 

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

 

“ClosingDate” means the date of the Initial Closing or Draw Down Closing, as applicable.

 

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

 

“ConversionPrice” means US$0.03785 per ordinary share, subject to proportional adjustment for share splits and consolidation thatoccur after the date of issuance of the Preferred Shares.

 

“DisclosureSchedules” means the Disclosure Schedules of the Company delivered concurrently herewith.

 

“DrawDown” shall have the meaning set forth in Section 2.1(b).

 

“DrawDown Amount” shall have the meaning set forth in Section 5.1(a).

 

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“DrawDown Closing” means the closing of the purchase and sale of the Preferred Shares pursuant to a Draw Down.

 

“DrawDown Notice Date” means the date that a Draw Down Notice is delivered to the Company pursuant to Section 5.1(a).

 

“DrawDownSettlement Date” shall have the meaning set forth in Section 5.1(b).

 

“DrawDown Notice” shall have the meaning set forth in Section 5.1(a).

 

“DrawDown Preferred Shares” means the Preferred Shares issuable pursuant to a Draw Down.

 

“DrawDown Settlement Date” shall have the meaning set forth in Section 5.1(b).

 

“EquityConditions” means, at the time or during the period in question, (i) the Ordinary Shares are trading on a U.S. securitiesmarket (and the Company believes, in good faith, that trading of the Ordinary Shares on a Trading Market will not be suspendedor discontinued), (ii) there is a sufficient number of authorized but unissued and otherwise unreserved Ordinary Shares for theissuance of all of the Underlying Shares underlying the Draw Down Preferred Shares (issued and issuable pursuant to this Agreement),and (iii) other than this Agreement, the Company, directly or indirectly, has not provided the Purchasers with any material, non-publicinformation that has not been made publicly available in a widely disseminated release or a Commission filing.

 

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

 

“IFRS”shall have the meaning ascribed to such term in Section 3.1(h).

 

“Indebtedness”shall have the meaning ascribed to such term in Section 3.1(z).

 

“InitialClosing” means the initial closing of the purchase and sale of the Preferred Shares pursuant to Section 2.1.

 

“InitialClosing Date” means September 15, 2015 or such other date as has been mutually agreed upon by the parties to this Agreement.

 

“InitialSubscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Preferred Shares hereunderat the Initial Closing, as specified below such Purchaser’s name on the signature page of this Agreement and next to theheading “Initial Subscription Amount,” in United States dollars and in immediately available funds.

 

“IntellectualProperty Rights” shall have the meaning ascribed to such term in Section 3.1(o).

 

“Liens”means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.

 

“MaterialAdverse Effect” shall have the meaning assigned to such term in Section 3.1(b).

 

“MaterialPermits” shall have the meaning ascribed to such term in Section 3.1(m).

 

“MinimumDollar Amount” shall mean $100,000.

 

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“MoneyLaundering Laws” shall have the meaning ascribed to such term in Section 3.1(hh).

 

“OFAC”shall have the meaning ascribed to such term in Section 3.1(gg).

 

“OrdinaryShares” shall mean the ordinary shares of the Company.

 

“OrdinaryShare Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof toacquire at any time Ordinary Shares, including, without limitation, any debt, preferred stock, rights, options, warrants or otherinstrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof toreceive, Ordinary Shares.

 

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

 

“PreferredShares” means the up to 2,000 Preferred Shares of Draker Acquisition Holdings, Inc, no par value, issuablehereunder, and having the rights, preferences and privileges set forth in the Resolution, attached hereto as ExhibitA.

 

“Proceeding”means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partialproceeding, such as a deposition), whether commenced or threatened.

 

“PurchaserDraw Down Amount” shall have the meaning ascribed to such term in Section 5.1(a).

 

“PurchaserParty” shall have the meaning ascribed to such term in Section 4.8.

 

“PurchaserRegistration Statement” shall mean the Registration Statement on Form F-1 the Company shall be obligated to file, ascontemplated by Section 4.12 to register for resale the Securities and the Warrants

 

“RegistrationStatement” shall mean the most recent Registration Statement on Form F-1, as amended that has been filed with the Commission,including the prospectus included in such Registration Statement.

 

“RequiredApprovals” shall have the meaning ascribed to such term in Section 3.1(e).

 

“Resolution”means the BLUENRGY Group Limited Directors Circular Resolution, dated on or before the Initial Closing Date, substantially inthe form attached hereto as Exhibit A, authorizing the Preferred Shares and approving the Agreement and thetransactions contemplated hereby including, without limitation, the issuance of Preferred Shares to thePurchasers.

 

“Rule144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from timeto time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

“SECReports” shall have the meaning ascribed to such term in Section 3.1(h).

 

“Securities”means the Preferred Shares and the Underlying Shares.

 

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

 

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“Settlement”means the delivery of Draw Down Preferred Shares to each applicable Purchaser, and each such Purchaser’s delivery of paymenttherefore by transfer to the Company’s bank account of immediately available funds.

 

“ShortSales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shallnot be deemed to include the location and/or reservation of borrowable Ordinary Shares). 

 

“StatedValue” means $1,000.00 per Preferred Share.

 

“Subsidiary”means any subsidiary of the.

 

“TradingDay” means a day on which the principal Trading Market is open for trading.

 

“TradingMarket” means any regulated public securities market in the United States of America (“USA”).

 

“TransactionDocuments” means this Agreement and all exhibits and schedules hereto, and any other documents or agreements, executedin connection with the transactions contemplated hereunder.

 

“TransferAgent” means the current current transfer agent of the Company, and any successor transfer agent of the Company.

 

“UnderlyingShares” means the Ordinary Shares issued and issuable upon conversion of the Preferred Shares, issued and issuable uponexercise of the Warrants, and issued and issuable in lieu of the cash payment of dividends on the Preferred Shares in accordancewith the terms set forth in the Resolution.

 

**ARTICLEII.**

 

**PURCHASEAND SALE**

 

2.1       Purchaseand Sale of Preferred Shares; Detachable Warrants.

 

(a)         Upon the terms and subject to the conditions of this Agreement, duringthe term of this Agreement, at their discretion, the Purchasers may elect to purchase from the Company and the Company shallbe obligated to sell to the Purchasers, Preferred Shares for up to a total aggregate cash purchase price of US$2,000,000.00;provided, however, that at the Initial Closing and on the Initial Closing Date, upon the terms and subject to the conditionsset forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, 1,000Preferred Shares for an aggregate purchase price of $1,000,000.

 

(b)        At the Initial Closing, each Purchaser shall deliver to the Company or itsdesignated escrow agent, via wire transfer or a certified check of immediately available funds equal to suchPurchaser’s Initial Subscription Amount as set forth on the signature page hereto executed by such Purchaser and theCompany shall deliver to each Purchaser documentation of its respective Preferred Shares and Warrants as determined pursuantto Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable atthe Initial Closing Date. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the InitialClosing shall occur at the offices of Reed Smith LLP or such other location as the parties shall mutually agree.

 

(c)        Following the Initial Closing, and subject to the terms and conditions ofArticle 5 of this Agreement, on or before December 31, 2015, the Purchasers shall have the right to make one or moreadditional investments (each a “Draw Down”) in an aggregate amount not to exceed $1,000,000, in one ormore Draw Down Closings.

 

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2.2       InitialClosing Deliverables.

 

(a)          Onor prior to the Initial Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:

 

(i)        acopy of this Agreement duly executed by the Company;

 

(ii)       documentaryevidence that the Preferred Shares purchased by such Purchaser have been duly recorded on the Company’s Preferred Shareregister in the name of such Purchaser; and

 

(iii)     a Warrant in the form set forth in Exhibit D hereto to purchase a number of Ordinary Shares as specified in Section 5.3 hereof.

 

(b)         Onor prior to the Initial Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:

 

(i)        acopy of its signature page to this Agreement duly executed by such Purchaser; and

 

(ii)      such Purchaser’s Initial Subscription Amount by wire transfer to the account as specified in writing by theCompany.

 

2.3       InitialClosing Conditions.

 

(a)        The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions beingmet:

 

(i)        theaccuracy in all material respects on the Initial Closing Date of the representations and warranties of the Purchasers containedherein (unless as of a specific date therein);

 

(ii)       allobligations, covenants and agreements of each Purchaser required to be performed at or prior to the Initial Closing Date shallhave been performed in all material respects; and

 

(iii)      thedelivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.

 

(b)         Therespective obligations of the Purchasers hereunder in connection with the Initial Closing are subject to the following conditionsbeing met:

 

(i)        theaccuracy in all material respects when made and on the Initial Closing Date of the representations and warranties of the Companycontained herein (unless as of a specific date therein);

 

(ii)       allobligations, covenants and agreements of the Company required to be performed at or prior to the Initial Closing Date shall havebeen performed in all material respects;

 

(iii)      thedelivery by the Company of this Agreement duly executed by the Company;

 

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(iv)      thereshall have been no Material Adverse Effect with respect to the Company since the date hereof; and

 

(v)       fromthe date hereof to the Closing Date, trading in the Ordinary Shares shall not have been suspended by the Commission or the Company’sprincipal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by BloombergL.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades arereported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United Statesor New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other nationalor international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, ineach case, in the reasonable judgment of each Purchaser, makes it impracticable or inadvisable to purchase the Securities at theClosing Date.

 

**ARTICLEIII.**

 

**REPRESENTATIONSAND WARRANTIES**

 

3.1       Representationsand Warranties of the Company. The Company hereby makes the representations and warranties to Purchaser set forth in thatcertain subscription agreement between Purchaser and Company for ordinary shares as of the date hereof, which representationsand warranties are incorporated herein by reference:

 

 

3.2       Representationsand Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants asof the date hereof, the Initial Closing Date and as of each Draw Down Settlement Date to the Company as follows (unless as ofa specific date therein):

 

(a)          Organization;Authority. Such Purchaser is either an individual or an entity duly organized, validly existing and in good standing underthe laws of the jurisdiction of its organization with full right, corporate or partnership power and authority to enter into andto consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder.The execution and delivery of this Agreement and performance by such Purchaser of the transactions contemplated by this Agreementhave been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable,on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, andwhen delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligationof such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principlesand applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcementof creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctiverelief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicablelaw.

 

(b)         Understandingsor Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirectarrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this representationand warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Purchaser Registration Statementor otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunderin the ordinary course of its business.

 

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(c)          PurchaserStatus. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on the date ofeach Draw Down Notice, and on each date on which it converts any Preferred Shares, it will be either: (i) an “accreditedinvestor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualifiedinstitutional buyer” as defined in Rule 144A(a) under the Securities Act. Such Purchaser is not required to be registeredas a broker-dealer under Section 15 of the Exchange Act.

 

(d)          Experienceof Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication andexperience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investmentin the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic riskof an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

 

(e)          GeneralSolicitation. Such Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communicationregarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presentedat any seminar or any other general solicitation or general advertisement.

 

(f)           CertainTransactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not,nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed ShortSales of the securities of the Company during the period commencing as of the time that such Purchaser first received a termsheet (written or oral) setting forth the material terms of the transactions contemplated hereunder and ending immediately priorto the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehiclewhereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers haveno direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’sassets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio managerthat made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to thisAgreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction(including the existence and terms of this transaction).

 

(g)          Needfor additional financing. Such Purchaser understands that it is likely that the Company will need to obtain additional financingfollowing consummation of this Agreement in order to fully execute its current business plan and objectives and to continue asa going concern. Such financing could be in the form of a sale or sales of equity or debt or equipment lease financing or a combinationof the foregoing. Such financing could lead to material dilution to the Company’s then existing equity holders and couldprovide for terms that restrict the operations of the Company. There can be no assurance that any additional financing followingthe consummation of this Agreement will be available to the Company on commercially reasonable terms or at all. In the event theCompany is unable to obtain additional financing, it may not be able to fully execute its business plan and objectives and couldbe forced to curtail some or all of its operations or to liquidate, resulting in a total loss of Purchaser’s investmentin the Securities.

 

(h)          SuchPurchaser understand and recognize that the purchase of the Securities is highly speculative and involves a high degree of riskand that only investors who can afford the loss of their entire investment should consider investing in the Company. Such Purchaserhas reviewed the risk factors in the SEC Reports.

 

(i)           Theaddress of such Purchaser furnished by him/her on the signature pages hereto is the undersigned’s principal residence ifhe/she is an individual or its principal business address if it is a corporation or other entity.

 

(j)           Ifsuch Purchaser is not a United States person, it has satisfied itself as to the full observance of the laws of its jurisdictionin connection with any invitation to purchase the Securities or any use of this Agreement, including (i) the legal requirementswithin its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase,(iii) any governmental or other consents that may need to be obtained and (iv) the income tax and other tax consequences, if any,that may be relevant to the purchase, holding, redemption, sale or transfer of the Securities. Such Purchaser’s paymentfor, and its continued beneficial ownership of the Securities, will not violate any applicable securities or other laws of thePurchaser’s jurisdiction.

 

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3.3       OtherUnderstandings. The Company acknowledges and agrees that the representations contained in Section 3.2 shall notmodify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties containedin this Agreement or any representations and warranties contained in any other Transaction Document or any other document orinstrument executed and/or delivered in connection with this Agreement or the consummation of the transaction contemplatedhereby.

 

**ARTICLEIV.**

 

**OTHERAGREEMENTS OF THE PARTIES**

 

4.1       Acknowledgmentof Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding OrdinaryShares, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligationsunder the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to theTransaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction,regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutiveeffect that such issuance may have on the ownership of the other shareholders of the Company.

 

4.2       Furnishingof Information. Until the time that no Purchaser owns Securities, the Company covenants to timely file (or obtain extensionsin respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the datehereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.

 

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

 

4.4     Securities Laws Disclosure; Publicity. The Company shall promptly file a Report on Form 6-K, disclosing thematerial terms of the transactions contemplated hereby, and such other information as required by applicable regulation. Inthe event of a Draw Down at which the investment amount (cumulated with any prior but not yet publicly announced Draw Downs)equals or exceeds $500,000, the Company shall promptly issue a press release or file a Report on Form 6-K, disclosing thematerial terms of the proposed Draw Down (and of any prior, undisclosed Draw Downs). Notwithstanding the foregoing, theCompany shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with theCommission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) asrequired by federal securities law in connection with the filing of final Transaction Documents (including signature pagesthereto) with the Commission, (b) to the extent such disclosure is required by law or Trading Market regulations, in whichcase the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b) or asrequired by applicable regulation to comply with Section 4.12 hereof.

 

4.5       ShareholderRights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, thatany Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (includingany distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by theCompany, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receivingSecurities under the Transaction Documents or under any other agreement between the Company and the Purchasers.

 

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4.6       Non-PublicInformation. Except with respect to the material terms and conditions of the transactions contemplated by the TransactionDocuments, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaseror its agents or counsel with any information that the Company believes constitutes material non-public information, unless priorthereto such Purchaser shall have executed a written agreement with the Company regarding the confidentiality and use of suchinformation. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effectingtransactions in securities of the Company.

 

4.7       Indemnificationof Purchasers. Subject to the provisions of this Section 4.7, the Company will indemnify and hold each Purchaser and its directors,officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role ofa Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titlesnotwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”)harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including alljudgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any suchPurchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties,covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action institutedagainst a Purchaser in any capacity, or any of them or their respective Affiliates, by any shareholder of the Company who is notan Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless suchaction is based upon a breach of such Purchaser’s representations, warranties or covenants under the Transaction Documentsor any agreements or understandings such Purchaser may have with any such shareholder or any violations by such Purchaser of stateor federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance).If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement,such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defensethereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the rightto employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counselshall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorizedby the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employcounsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue betweenthe position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonablefees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under thisAgreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shallnot be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liabilityis attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements madeby such Purchaser Party in this Agreement or in the other Transaction Documents.

 

4.8       Reservationof Ordinary Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep availableat all times, free of preemptive rights, a sufficient number of Ordinary Shares for the purpose of enabling the Company to issueall of the Underlying Shares.

 

4.9       Listingof Ordinary Shares. The Company hereby agrees to use all commercially reasonable efforts to maintain the listing of the OrdinaryShares on the Trading Market on which it is currently listed or an alternative national securities market in the United Statesof America. The Company further agrees, if the Company applies to have the Ordinary Shares traded on any other non-U.S. TradingMarket, it will then include in such application all of the Underlying Shares, and will take such other action as is necessaryto cause all of the Underlying Shares to be listed or quoted on such other Trading Market as promptly as possible. The Companywill then take all action reasonably necessary to continue the listing and trading of its Ordinary Shares on a Trading Marketand will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules ofthe Trading Market.

 

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4.10     CertainTransactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neitherit nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, includingShort Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and endingat such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the Form 6-K as describedin Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactionscontemplated by this Agreement are publicly disclosed by the Company pursuant to the Form 6-K as described in Section 4.4, suchPurchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in theTransaction Documents and the Disclosure Schedules. Notwithstanding the foregoing and notwithstanding anything contained in thisAgreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warrantyor covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that thetransactions contemplated by this Agreement are first publicly announced pursuant to the Form 6-K as described in Section 4.4,(ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordancewith applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publiclyannounced pursuant to the Form 6-K as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality tothe Company or its Subsidiaries after the issuance of the Form 6-K as described in Section 4.4. Notwithstanding the foregoing,in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portionsof such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfoliomanagers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respectto the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities coveredby this Agreement.

 

4.11     PurchaserRegistration Statement. The Company shall file a registration statement to register the Underlying Shares (“PurchaserRegistration Statement”) as soon as practicable after the Initial Closing Date, (the “Filing Date”) and shalltake all reasonable steps to ensure that the Purchaser Registration Statement is declared effective by the Commission within 180days following the Initial Closing Date (the “Registration Date”). For so long as Purchasers hold Preferred Shares,the Company will not sell or issue or attempt to register any securities under the Purchaser Registration Statement in any amountor manner that would prevent or restrict the availability of the Purchaser Registration Statement to cover the issuance of UnderlyingShares upon conversion of the Preferred Shares and the exercise of the Warrants.

 

4.12     Conversionand Exercise Procedures. Each Preferred Share is Convertible into ordinary shares of the Company at the Conversion Price upondelivery by holder of Notice of Conversion applicable to such share. The form of Notice of Conversion included in Exhibit C setsforth the totality of the procedures required of a Purchaser in order to convert the Preferred Shares. No additional legal opinion,other information or instructions shall be required of any Purchaser to convert their Preferred Shares. The Company shall honorconversions of the Preferred Sharesand exercises of the Warrants and shall deliver Underlying Shares in accordance with the terms,conditions and time periods set forth in the Transaction Documents and provide all customary legal opinions, instructions or instrumentsnecessary or advisable for the issuance to the Purchasers of the Securities and resale by the Purchasers of the Underlying Shares.

 

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**ARTICLEV.**

 

**DRAWDOWNS**

 

5.1       DrawDown Terms.

 

(a)         Each Purchaser must inform the Company by delivering on or before December 31, 2015, a Draw Down Notice, in the form of ExhibitB hereto (the “Draw Down Notice”), via facsimile or email transmission in accordance with Section 7.3,as to the dollar amount of the Purchaser’s proposed Draw Down (the “Purchaser Draw Down Amount”) suchPurchaser wishes to exercise; provided, however, that any Draw Down must be for at least the Minimum Dollar Amount.

 

(b)        Each Draw Down will be settled on or before the 3rd Trading Day after delivery of such Draw Down Notice, but no later than December31, 2015 (“Draw Down Settlement Date”). The number of Preferred Shares to be issued upon each settlement ofa Draw Down shall equal the Purchaser Draw Down Amount divided by the Stated Value.

 

5.2       ConditionsPrecedent to the Obligation of the Company to sell Draw Down Preferred Shares. The obligation hereunder of the Companyto proceed to sell and issue Draw Down Preferred Shares in each Draw Down under this Agreement, if any, is subject to thesatisfaction as of such Draw Down Settlement Date of each of the conditions set forth below, which conditions are for theCompany’s sole benefit and may be waived by the Company in writing at any time in its solediscretion:

 

(a)          Eachof the representations and warranties of each participating Purchaser contained herein shall be true and correct in all materialrespects as of such Draw Down Closing Date as though made at that time (except for representations and warranties that speak asof a particular date, which shall be true and correct in all material respects as of such dates).

 

(b)         ThePurchasers shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditionsrequired by this Agreement to be performed, satisfied or complied with by the Purchasers at or prior to such Draw Down SettlementDate.

 

(c)          Oneach applicable Draw Down Notice Date, all of the Equity Conditions shall be satisfied.

 

(d)         ThePurchaser Draw Down Amount for such Draw Down shall not be less than the Minimum Dollar Amount, and

 

(e)         Theclosing deliverables described in Section 5.3(b) shall have been delivered to the Company.

 

5.2       ConditionsPrecedent to the Obligation of the Purchasers to purchase Draw Down Preferred Shares. The obligation hereunder of the Purchasersto acquire and pay for Draw Down Preferred Shares is subject to the satisfaction as of each Draw Down Settlement Date, of eachof the conditions set forth below, which conditions are for the Purchasers’ sole benefit and may be waived by the Purchasersin writing at any time in their sole discretion:

 

(a)          Eachof the representations and warranties of the Company shall be true and correct in all material respects as of such Draw Down SettlementDate as though made at that time (except for representations and warranties that speak as of a particular date, which shall betrue and correct in all material respects as of such date).

 

(b)         TheCompany shall have performed, satisfied and complied in all material respects with all material covenants, agreements and conditionsrequired by this Agreement to be performed, satisfied or complied with by the Company at or prior to such Draw Down SettlementDate.

 

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(c)         Tradingin the Ordinary Shares shall not have been suspended by the Commission or the Trading Market on the Draw Down Settlement Date.

 

(d)         Thereshall have been no Material Adverse Effect with respect to the Company.

 

(e)         Oneach applicable Draw Down Notice Date and Draw Down Settlement Date, all of the Equity Conditions shall be satisfied and noneof the events set forth in Section 2.3(b)(v) shall have occurred.

 

(f)          The Company’s Board shall have adopted an irrevocable resolution providing that, subject to the Company’s Constitutionand the Act, as long as 1,000 or more Preferred Shares are outstanding, the Board shall, upon receipt of a written request fromany holder of Preferred Shares, vote to appoint as a director a designee chosen by the holders of a majority of the PreferredShares (the “Preferred Director”). Subject to receipt of notice of the designee, the Company covenants to take allsuch lawful actions as necessary to immediately effect such appointment, if requested. 

 

5.3       DrawDown Closing Deliverables.

 

(a)          Onor prior to the Draw Down Settlement Date, the Company shall deliver or cause to be delivered to each participatingPurchaser documentary evidence that the Preferred Shares purchased by such Purchaser have been duly recorded on theCompany’s Preferred Share register in the name of such Purchaser and a Warrant to purchase a number of Ordinary Sharesup to 50% of the number of ordinary shares issuable upon conversion of a Preferred Share at the applicable conversion price,subject to adjustment, it being understood that ; the number of Draw Down Preferred Shares ascribed to each such Purchasershall equal such Purchaser’s Purchaser Draw Down Amount divided by the Stated Value,; and

 

(b)         Onor prior to the Draw Down Settlement Date, each participating Purchaser shall deliver or cause to be delivered to the Companysuch Purchaser’s Purchaser Draw Down Amount by wire transfer to the account as specified in writing by the Company. 

 

**ARTICLEVI.**

** **

**TERMINATION**

 

6.1       Termination.This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effectwhatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the InitialClosing has not been consummated on or before September 20, 2015; provided, however, that no such termination will affect theright of any party to sue for any breach by the other party (or parties).

 

**ARTICLEVII.**

** **

**MISCELLANEOUS**

 

7.1       Feesand Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees andexpenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incidentto the negotiation, preparation, execution, delivery and performance of this Agreement.

 

7.2       EntireAgreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding ofthe parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written,with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

 

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7.3       Notices.Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing andshall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is deliveredvia facsimile at the facsimile number or via email at the email address set forth on the signature pages attached hereto priorto 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice orcommunication is delivered via facsimile at the facsimile number or via email at the email address set forth on the signaturepages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c)the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or(d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communicationsshall be as set forth on the signature pages attached hereto and may be changed upon three days’ notice in accordance withthe terms of this Section 8.7.

 

7.4       Amendments;Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,in the case of an amendment, by the Company and the Purchasers holding at least 67% in interest of the Preferred Shares then outstandingor, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any defaultwith respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the futureor a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delayor omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.

 

7.5       Headings.The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affectany of the provisions hereof.

 

7.6       Successorsand Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permittedassigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent ofeach Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person towhom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respectto the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”

 

7.7       NoThird-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successorsand permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except asotherwise set forth in Section 4.7.

 

7.8       GoverningLaw. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shallbe governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to theprinciples of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcementand defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against aparty hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusivelyin the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdictionof the state and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunderor in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcementof 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 improperor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consentsto process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnightdelivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agreesthat such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall bedeemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence anaction or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Companyunder Section 4.7, the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonableattorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such actionor proceeding.

 

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7.9       Survival.The representations and warranties contained herein shall survive the Initial Closing and the delivery of the Securities.

 

7.10     Execution.This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the sameagreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it beingunderstood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmissionor by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation ofthe party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf”signature page were an original thereof.

 

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

 

7.12     Rescissionand Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of)any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a TransactionDocument and the Company does not timely perform its related obligations within the periods therein provided, then such Purchasermay rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demandor election in whole or in part without prejudice to its future actions and rights; provided,however, that in the case of a rescission of a conversion of the Preferred Shares, the applicable Purchaser shall be requiredto return any Ordinary Shares subject to any such rescinded conversion notice.

 

7.13     Replacementof Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Companyshall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactoryto the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstancesshall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacementSecurities.

 

7.14     Remedies.In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each ofthe Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree thatmonetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in theTransaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligationthe defense that a remedy at law would be adequate.

 

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7.15     PaymentSet Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Documentor a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement orexercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from,disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other personunder any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action),then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revivedand continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

 

7.16     IndependentNature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are severaland not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performanceor non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in anyother Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasersas a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers arein any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the TransactionDocuments. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, therights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaserto be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separatelegal counsel in their review and negotiation of the Transaction Documents. The Company has elected to provide all Purchaserswith the same terms and Transaction Documents for the convenience of the Company and not because it was required or requestedto do so by any of the Purchasers.

 

7.17     Saturdays,Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right requiredor granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeedingBusiness Day.

 

7.18     Construction.The parties agree that each of them and/or their respective counsel has reviewed and had an opportunity to revise the TransactionDocuments and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the draftingparty shall not be employed in the interpretation of the Transaction Documents or any amendments hereto. In addition, each andevery reference to share prices and Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse andforward stock splits, stock dividends, stock combinations and other similar transactions of the Ordinary Shares that occur afterthe date of this Agreement.

 

**7.19   ** **WAIVEROF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THEPARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.**

 

*(SignaturePages Follow)*

* *

**

15

 

* *

INWITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorizedsignatories as of the date first indicated above.

 

 

[REMAINDEROF PAGE INTENTIONALLY LEFT BLANK

SIGNATUREPAGE FOR PURCHASER FOLLOWS]

 

16

 

 

PURCHASERSIGNATURE PAGES TO BLUENRGY ENERGY LIMITED SECURITIES PURCHASE AGREEMENT

 

INWITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorizedsignatories as of the date first indicated above.

 

Nameof Purchaser: _____________________________________________________________________________

 

*Signatureof Authorized Signatory of Purchaser*: ______________________________________________________

 

Nameof Authorized Signatory: ____________________________________________________________________

 

Titleof Authorized Signatory: _____________________________________________________________________

 

EmailAddress of Authorized Signatory:______________________________________________________________

 

FacsimileNumber of Authorized Signatory: ___________________________________________________________

 

Addressfor Notice of Purchaser:

____________________________________________________________________________________________

 

____________________________________________________________________________________________

 

____________________________________________________________________________________________ 

 

Addressfor Delivery of Securities for Purchaser (if not same as address for notice):

____________________________________________________________________________________________

 

____________________________________________________________________________________________

 

____________________________________________________________________________________________ 

 

InitialSubscription Amount: $1,000,000 (One Million U.S. dollars)_______________________

 

Numberof Series B Cumulative Convertible Preferred Shares: 1,000

 

EINNumber: **___________________________**

 

[SIGNATUREPAGES CONTINUE]

 

17

 

 

**ExhibitA**

 

**DIRECTORSCIRCULAR RESOLUTION**

** **

**(Attached)**

** **

****

18

 

** **

**ExhibitB**

 

**DRAWDOWN NOTICE / COMPLIANCE CERTIFICATE**

** **

Theundersigned hereby certifies, with respect to Draker Acquisition Holdings Convertible Preferred Shares, no par value, ofBLUENRGY Group Limited, an Australian corporation (the “Company”), issuable in connection with this DrawDown Notice and Compliance Certificate dated _______, 2015 (the “Notice”), delivered pursuant to theSecurities Purchase Agreement dated as of ________, 2015 (the “Agreement”), as follows:

 

1.      The undersigned is the duly appointed _________ of __________ (“Purchaser”).

 

2.     The representations and warranties of Purchaser set forth in the Agreement are true and correct in all material respects as thoughmade on and as of the date hereof, except for representations and warranties which are expressly made as of a particular date.

 

3.     Purchaser has performed, satisfied and complied in all material respects with all covenants, agreements and conditions requiredunder the Agreement to be performed, satisfied or complied with by Purchaser at or prior to the date of this Draw Down Notice.

 

4.      The Purchaser Investment Amount is $___________.

 

5.      The number of Draw Down Preferred Shares is ___________.

 

6.      The Draw Down Settlement Date is _________________.

 

Theundersigned has executed this Certificate this ____ day of ________, 2015.

 

PURCHASER

 

 

19

 

 

**ExhibitC**

 

**FORMOF NOTICE OF CONVERSION**

** **

(Attached)

 

20

 

 

**ExhibitD**

 

**FORMOF WARRANT**

 

**(Attached)**

** **

21** **

****

** **