Exhibit
10.2


 


PURCHASE
AGREEMENT


 


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”).







 


WHEREAS:


 


Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to
buy from the Company, up to $5,000,000 of the Company's common stock, par value $0.001 per share (the "Common Stock").  The
shares of Common Stock to be purchased hereunder (including, without limitation, the Initial Purchase Shares (as defined in Section
2(a) herein)) are referred to herein as the "Purchase Shares."


 


NOW
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Company and the Investor hereby agree as follows:


 


1.        
   CERTAIN DEFINITIONS.


 


For
purposes of this Agreement, the following terms shall have the following meanings:


 


(a)           “Business
Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market
is open for trading for a period of time less than the customary time.


 


(b)         
“Confidential Information” means any information disclosed by either party to the other party, either directly
or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes,
samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation.
Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being
Confidential Information within ten (10) Business Days after the initial disclosure. Confidential Information may also include
information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information
which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing
party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party
through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of
disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of
disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations
of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s
Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi)
is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt
written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from
public disclosure.


 


(c)           “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


(d)          “DTC”
means The Depository Trust Company, or any successor performing substantially the same function for the Company.


 


(e)           “DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and
without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified
Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar
program hereafter adopted by DTC performing substantially the same function.


 






    	 		 



     


    

 


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


 


(g)           “Material
Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document, (ii) the
results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other than
any material adverse effect that resulted exclusively from (A) any change in the United States or foreign economies or securities
or financial markets in general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole,
(B) any change that generally affects the industry in which the Company and its Subsidiaries operate that does not have a
disproportionate effect on the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with
earthquakes, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any
such hostilities, acts of war, sabotage or terrorism or military actions existing as of the date hereof, (D) the effect of
any change in applicable laws or accounting rules that does not have a disproportionate effect on the Company and its Subsidiaries,
taken as a whole, or (E) any change resulting from compliance with terms of this Agreement or the consummation of the transactions
contemplated by this Agreement, or (iii) the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document to be performed as of the date of determination.


 


(h)           “Maturity
Date” means two years from the Commencement Date.


 


(i)           “Person”
means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or agency thereof.


 


(j)           “Pricing
Period” means, the five consecutive days immediately prior to the Purchase Date.


 


(k)           “Principal
Market” means the OTC Bulletin Board (or any nationally recognized successor thereto); provided, however, that in the
event the Company’s Common Stock is ever listed or traded on The NASDAQ Capital Market, The NASDAQ Global Market, the New
York Stock Exchange, the NYSE MKT, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized
successor to any of the foregoing), then the “Principal Market” shall mean such other market or exchange on which
the Company’s Common Stock is then listed or traded.


 


(l)           “Purchase
Amount” means, with respect to any Regular Purchase made hereunder, the portion of the Remaining Amount to be purchased
by the Investor pursuant to Section 2 hereof and with respect to the applicable Regular Purchase Notice.


 


(m)           “Purchase
Date” means, with respect to any Regular Purchase made pursuant to Section 2(a) hereof, shall mean
the Business Day, as set forth below, immediately following the day on which the Investor receives a Regular Purchase Notice;
provided that such notice must be received prior to 2:00 p.m. Eastern Time. In the event that such Regular Purchase Notice is
received by the Investor at 2:00 p.m. Eastern Time or later on that Business Day, then such Regular Purchase Notice shall automatically
be deemed null and void (unless waived in writing by the Investor).


 


(n)          “Purchase
Price” means, with respect to any Regular Purchase made pursuant to Section 2(a) hereof, the average VWAP
of the Purchase Shares during the Pricing Period multiplied by: (i) 77% if the price of the Regular Purchase request is 100% or
less than or equal to the average trailing ten day trading volume on the Principal Market multiplied by the average VWAP in the
Pricing Period; or (ii) 72% if the price of the Regular Purchase request is greater than 100% but less than 150% of the average
trailing ten day trading volume on the Principal Market multiplied by the average VWAP in the Pricing Period; or (iii) 67% if
the price of the Regular Purchase request is greater than 150% but less than 200% of the average trailing ten day trading volume
multiplied by the average VWAP in the Pricing Period.


 






    	 	2	 



     


    

 


(o)           “Regular
Purchase Notice” means, with respect to any Regular Purchase pursuant to Section 2(a) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to buy such applicable amount of Purchase Shares as specified
by the Company therein on the Purchase Date. Such written notice shall include the number of shares of Common Stock the Company
intends to sell the Investor. 


 


(p)          
“Remaining Amount” means, initially, $5,000,000 in the aggregate, which amount shall be reduced by (i) the
Initial Purchase Amount upon the purchase of the Initial Purchase Shares by the Investor on the date hereof pursuant to Section
2(a) hereof and (ii) the Purchase Amount each time the Investor purchases shares of Common Stock (other than the Initial
Purchase Shares) pursuant to Section 2 hereof.


 


(q)           “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.


 


(r)           “SEC”
means the U.S. Securities and Exchange Commission.


 


(s)          “Securities
Act” means the Securities Act of 1933, 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.


 


(u)          “Transaction
Documents” means, collectively, this Agreement, the Regular Purchase Notices (as same may be delivered from time to
time to the Investor by the Company), the schedules and exhibits hereto, and each of the other agreements, documents, certificates
and instruments entered into or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby.


 


(v)          “Transfer
Agent” means Island Stock Transfer, or such other Person who is then serving as the transfer agent for the Company in
respect of the Common Stock.


 


(w)          “VWAP”
means the volume weighted average price of the Common Stock on the Principal Market, as reported on the Principal Market.


 


2.            PURCHASE
OF COMMON STOCK.


 


Subject
to the terms and conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has
the obligation to purchase from the Company, Purchase Shares as follows:


 


(a)           Commencement
of Regular Sales of Common Stock. On the date of this Agreement, upon the satisfaction of the conditions set forth in Sections
6(I) and 7(I) hereof, the Company shall sell to the Investor and the Investor shall purchase 125,000
Purchase Shares (such initial Purchase Shares, the “Initial Purchase Shares”) for aggregate consideration of
$468,750 (the “Initial Purchase Amount”).  Upon the satisfaction of the conditions set forth in Sections
6(II) and 7(II) hereof (the “Commencement” and the date of satisfaction of such conditions
the “Commencement Date”) and thereafter, the Company shall have the right, but not the obligation, to direct
the Investor, by its delivery to the Investor of a Regular Purchase Notice from time to time, to purchase the requested Share
Amount (each such purchase a “Regular Purchase”), on the Purchase Date. The Company may deliver a Regular Purchase
Notice to the Investor so long as at least ten (10) Business Days have passed since the most recent Regular Purchase was completed.
After the Investor receives the Regular Purchase Notice, the Investor shall confirm receipt of the Regular Purchase Notice by
6:00 p.m., Eastern Time, with the Purchase Price and the Purchase Amount.  Notwithstanding
the foregoing, if mutually agreed upon by both the Company and Investor a Purchase Notice may be delivered sooner.







 






    	 	3	 



     


    

 


(b)          Payment
for Purchase Shares.   The closing of the purchase by the Investor of Purchase Shares (a “Closing”)
shall occur on the date which is no later than three (3) Business Days following the Purchase Date (each a “Closing Date”).
On each Closing Date, (I) the Company shall cause its transfer agent, participating in The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer (“FAST”) program, to electronically transmit the number of Purchase Shares specified
in the Regular Purchase Notice, by crediting the account of the Investor’s prime broker (as specified by the Investor with
DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system and (II) the Investor shall deliver to the Company
the Purchase Amount set forth in the applicable Regular Purchase Notice by wire transfer of immediately available funds to an
account designated by the Company. . The Company shall not issue any fraction of a share of Common Stock upon any Regular Purchase.  If
the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a
share of Common Stock up to the nearest whole share. All payments made under this Agreement shall be made in lawful money of the
United States of America or wire transfer of immediately available funds to such account as the Company may from time to time
designate by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the
terms of this Agreement is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day
that is a Business Day.


 


(c)           Beneficial
Ownership Limitation.  Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue
or sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when
aggregated with all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant
to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor
and its affiliates of more than 9.99% of the then issued and outstanding shares of Common Stock (the “Beneficial
Ownership Limitation”). Upon the written or oral request of the Investor, the Company shall promptly (but not later
than 24 hours) confirm in writing to the Investor the number of shares of Common Stock then outstanding. The Investor and the
Company shall each cooperate in good faith in the determinations required hereby and the application hereof. The Investor’s
written certification to the Company of the applicability of the Beneficial Ownership Limitation, and the resulting effect thereof
hereunder at any time, shall be conclusive with respect to the applicability thereof and such result absent manifest error.


 


3.        
   INVESTOR'S REPRESENTATIONS AND WARRANTIES.


 


The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:


 


(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 Investor’s 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.


 






    	 	4	 



     


    

 


(b)          Information.
The Investor understands that its investment in the Purchase Shares involves a high degree of risk.  The Investor
(i) is able to bear the economic risk of an investment in the Purchase Shares including a total loss thereof, (ii) has such
knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Purchase Shares and (iii) has had an opportunity to ask questions of and receive answers from the
officers of the Company concerning the financial condition and business of the Company and others matters related to an
investment in the Purchase Shares .  Neither such inquiries nor any other due diligence investigations conducted by
the Investor or its representatives shall modify, amend or affect the Investor's right to rely on the Company's
representations and warranties contained in Section 4 below.  The Investor has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the
Purchase Shares. 


 


(c)           No
Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of the Purchase Shares or the fairness or
suitability of an investment in the Purchase Shares nor have such authorities passed upon or endorsed the merits of the
offering of the Purchase Shares.


 


(d)           Transfer
or Sale. The Investor understands that (i) the Purchase Shares may not be offered for sale, sold, assigned or
transferred unless (A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Purchase Shares
to be sold, assigned or transferred without such registration; (ii) any sale of the Purchase Shares made in reliance on Rule
144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the
Purchase Shares 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 Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the SEC thereunder.


 


(e)           Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor
and is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as
to enforceability to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies.


 


(f)           Residency.
The Investor is a resident of the State of New Jersey.


 


(g)    
     No Short Selling. The Investor represents and warrants to the Company
that at no time prior to the date of this Agreement has any of the Investor, its agents, representatives or affiliates engaged
in or effected, in any manner whatsoever, directly or indirectly, any (i) "short sale" (as such term is defined in Rule
200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position
with respect to the Common Stock and will not engage in any such short sales during the term of this Agreement.


 


4.       
    REPRESENTATIONS AND WARRANTIES OF THE COMPANY.


 


The
Company represents and warrants to the Investor that as of the date hereof and as of the Commencement Date:


 


(a)           Organization
and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its business as currently conducted.  Neither
the Company nor any of its Subsidiaries is in violation or default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents.  Each of the Company and its Subsidiaries is
duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse
Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit
or curtail such power and authority or qualification.  The Company has no Subsidiaries except as set forth in SEC
Documents (as defined below).


 






    	 	5	 



     


    

 


(b)          Authorization;
Enforcement; Validity.  (i) The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and each of the other Transaction Documents, and to issue the Purchase Shares in accordance
with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation
by it of the transactions contemplated hereby and the reservation for issuance and the issuance of the Purchase Shares issuable
under this Agreement, have been duly authorized by the Company's Board of Directors and no further consent or authorization is
required by the Company, its Board of Directors or its stockholders, (iii) this Agreement has been, and each other Transaction
Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this Agreement constitutes, and
each other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid and binding obligations
of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors' rights and remedies. The Board of Directors of the Company has authorized
this Agreement and the transactions contemplated hereby.  The authorization of the Board of Directors is valid, in full
force and effect and have not been modified or supplemented in any respect.   Except as set forth in this Agreement,
no other approvals or consents of the Company’s Board of Directors, any authorized committee thereof, and/or stockholders
is necessary under applicable laws and the Company’s Articles of Incorporation (as defined below) and/or Bylaws (as defined
below) to authorize the execution and delivery of this Agreement or any of the transactions contemplated hereby, including, but
not limited to, the issuance of the Purchase Shares.


 


(c)           Capitalization.  As
of the date hereof, the authorized capital stock of the Company is set forth its SEC Documents.  Except as disclosed
in the SEC Documents (as defined below), (i) no shares of the Company's capital stock are subject to preemptive rights or any
other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding debt securities,
(iii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries,
or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound
to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, (iv) there are no agreements or arrangements under which the Company or any of
its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act, (v) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company
does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement.  The
Company has furnished to the Investor true and correct copies of the Company's Articles of Incorporation, as amended and as in
effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect
on the date hereof (the "Bylaws"), and summaries of the terms of all securities convertible into or exercisable
for Common Stock, if any, and copies of any documents containing the material rights of the holders thereof in respect thereto.


 






    	 	6	 



     


    

 


(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.


 


(e)          No
Conflicts.  The execution, delivery and performance of the Transaction Documents by the Company and the consummation
by the Company of the transactions contemplated hereby will not (i) result in a violation of the Articles of Incorporation, any
Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the Bylaws
or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and the rules and regulations of the Principal Market applicable
to the Company or any of its Subsidiaries) or by which any property or asset of the Company or any of its Subsidiaries is bound
or affected, except in the case of conflicts, defaults, terminations, amendments, cancellations and violations under clause (ii),
which could not reasonably be expected to result in a Material Adverse Effect.  Neither the Company nor its Subsidiaries
is in violation of any term of or in default under its Articles of Incorporation, any Certificate of Designation, Preferences
and Rights of any outstanding series of preferred stock of the Company or Bylaws or their organizational charter or bylaws, respectively.  Neither
the Company nor any of its Subsidiaries is in violation of any term of or is in default under any material contract, agreement,
mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to the
Company or its Subsidiaries, except for possible conflicts, defaults, terminations or amendments that could not reasonably be
expected to have a Material Adverse Effect.  The business of the Company and its Subsidiaries is not being conducted,
and shall not be conducted, in violation of any law, ordinance, regulation of any governmental entity, except for possible violations,
the sanctions for which either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.  Except
as specifically contemplated by this Agreement and as required under the Securities Act or applicable state securities laws and
the rules and regulations of the Principal Market, the Company is not required to obtain any consent, authorization or order of,
or make any filing or registration with, any court or governmental agency or any regulatory or self-regulatory agency in order
for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents in accordance
with the terms hereof or thereof.  Except as set forth elsewhere in this Agreement, all consents, authorizations, orders,
filings and registrations which the Company is required to obtain pursuant to the preceding sentence shall be obtained or effected
on or prior to the Commencement Date.  Since one year prior to the date hereof, the Company has not received nor delivered
any notices or correspondence from or to the Principal Market.  The Principal Market has not commenced any delisting
proceedings against the Company.


 






    	 	7	 



     


    

 


(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.


 


(g)          Absence
of Certain Changes.  Except as disclosed in the SEC Documents, there has been no material adverse change in the
business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries.  The
Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to Title 11, U.S.
Code, or any similar federal or state law for the relief of debtors (“Bankruptcy Law”) nor does the Company or any
of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or
insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.


 


(h)          Absence
of Litigation. Except as disclosed in Schedule 4(h) provided to the Investor prior to a Closing Date, there is no action,
suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company, the
Common Stock or any of the Company's or its Subsidiaries' officers or directors in their capacities as such, which could reasonably
be expected to have a Material Adverse Effect.


 






    	 	8	 



     


    

 


(i)           Acknowledgment
Regarding Investor's Status.  The Company acknowledges and agrees that the Investor is acting solely in the capacity
of arm's length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby.  The
Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given
by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated
hereby and thereby is merely incidental to the Investor's purchase of the Purchase Shares.  The Company further represents
to the Investor that the Company's decision to enter into the Transaction Documents has been based solely on the independent evaluation
by the Company and its representatives and advisors.


 


(j)        
  No General Solicitation; No Integrated Offering.  Neither the Company, nor any of its affiliates,
nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Purchase Shares. Neither the Company,
nor or any of its affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that would require registration of the offer and sale
of any of the Purchase Shares under the Securities Act, whether through integration with prior offerings or otherwise, or cause
this offering of the Purchase Shares to be integrated with prior offerings by the Company in a manner that would require stockholder
approval pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated.
The issuance and sale of the Purchase Shares hereunder does not contravene the rules and regulations of the Principal Market.


 


(k)           Intellectual
Property Rights.  Except as disclosed in the SEC Documents, the Company and its Subsidiaries own or possess adequate
rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents,
patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to
conduct their respective businesses as now conducted.  None of the Company's material trademarks, trade names, service
marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property rights have expired or terminated, or, by the terms and conditions
thereof, could expire or terminate within two years from the date of this Agreement.  Except as disclosed in the SEC
documents, the Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries of
any material trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks,
service mark registrations, trade secret or other similar rights of others, or of any such development of similar or identical
trade secrets or technical information by others, and there is no claim, action or proceeding being made or brought against, or
to the Company's knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents,
patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other
infringement, which could reasonably be expected to have a Material Adverse Effect.


 


(l)        
   Environmental Laws.  The Company and its Subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where, in each of the
three foregoing clauses, the failure to so comply could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.


 


(m)          Title.  The
Company and its Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable
title in all personal property owned by them that is material to the business of the Company and its Subsidiaries, in each case
free and clear of all liens, encumbrances and defects (“Liens”) and, except for Liens as do not materially
affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by
the Company and its Subsidiaries and Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent
nor subject to penalties.  Any real property and facilities held under lease by the Company and its Subsidiaries are
held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are in compliance with
such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings
by the Company and its Subsidiaries.


 






    	 	9	 



     


    

 


(n)           Insurance.  The
Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and
its Subsidiaries are engaged.  Neither the Company nor any such Subsidiary has been refused any insurance coverage sought
or applied for and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its Subsidiaries, taken as a whole.


 


(o)           Regulatory
Permits.  The Company and its Subsidiaries possess all material certificates, authorizations and permits issued
by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither
the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit.


 


(p)          Tax
Status.  The Company and each of its Subsidiaries has made or filed all federal and state income and all other material
tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that
the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid
and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown
or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside
on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply.  There are no unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Company know of no basis for any such claim.


 


(q)          Transactions
With Affiliates.   Except as set forth in the SEC Documents, none of the officers or directors of the Company
and, to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company
or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which
any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each
case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock
option plan of the Company.


 






    	 	10	 



     


    

 


(r)           Disclosure.  Except
with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will be timely
publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf has provided
the Investor or its agents or counsel with any information that it believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Base Prospectus or the SEC Documents.   The Company understands
and confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities of the
Company.  All of the disclosure furnished by or on behalf of the Company to the Investor regarding the Company, its
business and the transactions contemplated hereby, including the disclosure schedules to this Agreement, is true and correct and
does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated by the
Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made and when made, not misleading.  The Company acknowledges and
agrees that the Investor neither makes nor has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3 hereof.


 


(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.


 


(t)           DTC
Eligibility.  The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities
Transfer (FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities
Transfer (FAST) Program.


 


(u)          Sarbanes-Oxley.
The Company is in compliance with all provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as
of the date hereof, except where the failure to be in compliance is not reasonably likely to result in a material adverse effect.


 


(v)          Certain
Fees. Except as disclosed to the Investor in writing, no brokerage or finder’s fees or commissions are or will be payable
by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by the Transaction Documents. Except as disclosed to the Investor in writing, the
Investor shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section 3 that may be due in connection with the transactions contemplated
by the Transaction Documents.


 


(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.


 


(x)           Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating
terminating such registration. The Company has not, in the twelve (12) months preceding the date hereof, received any notice from
any Person to the effect that the Company is not in compliance with the listing or maintenance requirements of the Principal Market.
The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all
such listing and maintenance requirements.


 


(y)          Accountants.  The
Company’s 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.


 






    	 	11	 



     


    

 


(z)           No
Market Manipulation. The Company has not, and to its knowledge no Person acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of any of the Purchase Shares, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Purchase Shares, or (iii) paid or agreed to pay to any Person any compensation for
soliciting another to purchase any other securities of the Company.


 


(aa)        No
Disqualification Events.  None of the Company, any of its predecessors, any affiliated issuer, any director, executive
officer, other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of
the Company's outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is
defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer
Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by
Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered
Person is subject to a Disqualification Event.


 


5.      
    COVENANTS.


 


(a)           Filing
of Current Report and Registration Statement.  The Company agrees that it shall, within the time required under
the Exchange Act, file with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material
terms and conditions of, the Transaction Documents (the “Current Report”). The Company has prepared and filed
in conformity with the requirements of the 1933 Act a shelf registration statement on Form S-3 (No. 333-213186), which became
effective on August 24, 2016, including a base prospectus, (the "Base Prospectus") relating to Common Stock,
preferred stock, warrants, subscription rights or units of the Company that may be sold from time to time by the Company, in accordance
with Rule 415 of the 1933 Act, and will file such amendments as may be required during the term of this Agreement. The Company
agrees that it shall file with the SEC before the Closing Date for the Initial Purchase Shares, a prospectus supplement to the
Base Prospectus relating to the sale of the Purchase Shares. The Company further agrees (i) that it shall give the Investor or
Investor’s legal counsel at least twenty-four (24) hours to review and provide reasonable comments to such prospectus supplement;
and (2) that the Company shall make any and all necessary filings with Financial Industry Regulatory Authority with respect to
each purchase of Purchase Shares. The Base Prospectus
(and any amendments or supplements thereto) shall be effective
on each Closing
Date and no stop
order suspending
the effectiveness
of same shall
be in effect or to
the Company’s
knowledge
shall be pending
or threatened.
Furthermore,
on each Closing
Date
(1) neither
the Company nor
the Investor
shall have received
notice
that the
SEC has issued
or intends to issue
a stop order with
respect to
such Base Prospectus (and any amendments or supplement thereto) or that
the SEC otherwise
has suspended
or withdrawn
the effectiveness
of such Base Prospectus (and any amendments or supplement thereto), either
temporarily
or permanently,
or intends or has threatened
to do so (unless
the SEC's
concerns have
been addressed and
Investor is
reasonably
satisfied
that the
SEC no longer
is considering
or intends to take
such action), and (2)
no other suspension
of the use or withdrawal
of the effectiveness
of such Base Prospectus (and any amendments
or supplement thereto) or related
prospectus shall
exist.
At the time
of each Closing
Date, the Base Prospectus (and any amendments
or supplements thereto; including
information
or documents incorporated
by reference
therein
or in the Base Prospectus) shall 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
or which
would require
public disclosure
or an update
supplement to
the prospectus.







 


(b)           Blue
Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to
register or qualify (i) the sale of the Purchase Shares to the Investor under this Agreement and (ii) any subsequent resale of
all Purchase Shares by the Investor, in each case, under applicable securities or “Blue Sky” laws of the states of
the United States in such states as is reasonably requested by the Investor from time to time, and shall provide evidence of any
such action so taken to the Investor.


 






    	 	12	 



     


    

 


(c)           Listing/DTC.  The
Company shall promptly secure the listing of all of the Purchase Shares to be issued to the Investor hereunder on the Principal
Market (subject to official notice of issuance) and upon each other national securities exchange or automated quotation system,
if any, upon which the Common Stock is then listed, and shall maintain, so long as any shares of Common Stock shall be so listed,
such listing of all such Purchase Shares from time to time issuable hereunder. The Company shall maintain the listing of the Common
Stock on the Principal Market and shall comply in all respects with the Company’s reporting, filing and other obligations
under the bylaws or rules and regulations of the Principal Market. Neither the Company nor any of its Subsidiaries shall take
any action that would reasonably be expected to result in the delisting or suspension of the Common Stock on the Principal Market.  The
Company shall promptly, and in no event later than the following Business Day, provide to the Investor copies of any notices it
receives from any Person regarding the continued eligibility of the Common Stock for listing on the Principal Market. The Company
shall pay all fees and expenses in connection with satisfying its obligations under this Section 5(c).  The
Company shall take all action necessary to ensure that its Common Stock can be transferred electronically as DWAC Shares.


 


(d)           Prohibition
of Short Sales and Hedging Transactions.  The Investor agrees that beginning on the date of this Agreement and ending
on the date of termination of this Agreement as provided in Section 10, the Investor and its agents, representatives and affiliates
shall not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term
is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock.


 


(e)           Due
Diligence; Non-Public Information.  The Investor shall have the right, from time to time as the Investor may reasonably
deem appropriate, to perform reasonable due diligence on the Company during normal business hours.  The Company and
its officers and employees shall provide information and reasonably cooperate with the Investor in connection with any reasonable
request by the Investor related to the Investor's due diligence of the Company.  Each party hereto agrees not to disclose
any Confidential Information of the other party to any third party and shall not use the Confidential Information for any purpose
other than in connection with, or in furtherance of, the transactions contemplated hereby.  Each party hereto acknowledges
that the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable
measures to protect the secrecy of any Confidential Information disclosed by the other party. The Company confirms that neither
it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any information that constitutes
or might constitute material, non-public information, unless a simultaneous public announcement thereof is made by the Company
in the manner contemplated by Regulation FD. In the event of a breach of the foregoing covenant by the Company or any Person acting
on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition to any other remedy provided
herein or in the other Transaction Documents, the Investor shall have the right to make a public disclosure, in the form of a
press release, public advertisement or otherwise, of such material, non-public information without the prior approval by the Company;
provided the Investor shall have first provided notice to the Company that it believes it has received information that constitutes
material, non-public information, the Company shall have at least 24 hours to publicly disclose such material, non-public information
prior to any such disclosure by the Investor, and the Company shall have failed to publicly disclose such material, non-public
information within such time period. The Investor shall not have any liability to the Company, any of its Subsidiaries, or any
of their respective directors, officers, employees, stockholders or agents, for any such disclosure. The Company understands and
confirms that the Investor shall be relying on the foregoing covenants in effecting transactions in securities of the Company.


 






    	 	13	 



     


    

 


(f)           Purchase
Records. The Investor and the Company shall each maintain records showing the Remaining Amount at any given time and the dates
and Purchase Amounts for each Regular Purchase or shall use such other method, reasonably satisfactory to the Investor and the
Company.


 


(g)          Taxes.  The
Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery of
any shares of Common Stock to the Investor made under this Agreement.


 


(h)       
  Other Transactions. The Company shall not enter into, announce or recommend to its stockholders
any agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with
or impair the ability or right of the Company to perform its obligations under the Transaction Documents, including, without limitation,
the obligation of the Company to deliver the Purchase Shares to the Investor in accordance with the terms of the Transaction Documents.


 


(i)           No
Variable Rate Transactions.


 


(i)           For
the term of this Agreement, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance
by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration (or a combination
of units thereof) involving a Variable Rate Transaction, other than in connection with an Exempt Issuance.  “Common
Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire
at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company issues
or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive
additional shares of Common Stock either (i) at a conversion price, exercise price or exchange rate or other price that is based
upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance
of such debt or equity securities, or (ii) with a conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for the Common Stock (including, without limitation
any “full ratchet” or “weighted average” anti-dilution provisions). “Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees, officers, directors or vendors of the Company pursuant
to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee
of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares
issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities,
and (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority
of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have
a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of
a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business
of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include
a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.


 


(ii)          For
the term of this Agreement the Company shall be prohibited from effecting or entering into an agreement to effect any “equity
line of credit”, “at-the-market offering” or other continuous offering or similar offering of Common Stock or
Common Stock Equivalents, whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price.


 






    	 	14	 



     


    

 


6.            CONDITIONS
TO THE COMPANY'S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK.


 


I.             The
right of the Company hereunder to sell the Initial Purchase Shares on the date of this Agreement is subject to the satisfaction
of each of the following conditions:


 


(a)          The
Investor shall have executed each of the Transaction Documents and delivered the same to the Company; and


 


(b)          The
representations and warranties of the Investor shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date hereof (except for representations and
warranties that speak as of a specific date, which shall be true and correct as of such date).


 


II.           The
right of the Company hereunder to commence sales of the Purchase Shares (other than the Initial Purchase Shares) on the Commencement
Date is subject to the satisfaction of each of the following conditions:


 


(a)          The
Investor shall have executed each of the Transaction Documents and delivered the same to the Company;


 


(b)          The
representations and warranties of the Investor shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date hereof and as of the Commencement Date
as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such date);


 


(c)          The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in
the State of Nevada issued by the Secretary of State of the State of Nevada as of the date hereof; and


 


(d)          The
Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of
State of the State of Nevada.


 


7.            CONDITIONS
TO THE INVESTOR'S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.


 


I.        
    The obligation of the Investor to buy the Initial Purchase Shares under this Agreement is subject to the
satisfaction of each of the following conditions:


 


(a)          The
Company shall have executed each of the Transaction Documents and delivered the same to the Investor;


 


(b)          The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date hereof (except for representations and
warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed,
satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied
or complied with by the Company at or prior to the date hereof;  


 






    	 	15	 



     


    

 


(c)          The
Board of Directors of the Company shall have adopted resolutions to approve this agreement;


 


(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;


 


(e)          No
statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state, local or foreign court or governmental authority of competent jurisdiction which prohibits the consummation
of or which would materially modify or delay any of the transactions contemplated by the Transaction Documents; and


 


(f)           No
action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign
governmental authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers,
directors or affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction
Documents, or seeking material damages in connection with such transactions.


 


II.           The
obligation of the Investor to buy Purchase Shares (other than the Initial Purchase Shares) under this Agreement is subject to
the satisfaction of each of the following conditions on or prior to the Commencement Date and, once such conditions have been
initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:


 


(a)          The
Company shall have executed each of the Transaction Documents and delivered the same to the Investor;


 


(b)          The
Company shall have issued or caused to be issued to the Investor (i) one or more certificates representing the Initial Purchase
Shares free from all restrictive and other legends or (ii) a number of shares of Common Stock equal to the number of Initial Purchase
Shares as DWAC Shares;


 


(c)          The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date hereof and as of the Commencement Date
as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement
Date.  


 






    	 	16	 



     


    

 


(d)          The
Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in the
State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (10) Business Days after the Commencement
Date;


 


(e)          The
Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of
State of the State of Nevada within ten (10) Business Days of the Commencement Date;


 


(f)           No
Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;


 


(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;


 


(h)          No
statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state, local or foreign court or governmental authority of competent jurisdiction which prohibits the consummation
of or which would materially modify or delay any of the transactions contemplated by the Transaction Documents; and


 


(i)           No
action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign
governmental authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers,
directors or affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction
Documents, or seeking material damages in connection with such transactions.


 


8.            INDEMNIFICATION.


 


In
consideration of the Investor's execution and delivery of the Transaction Documents and acquiring the Purchase Shares hereunder
and in addition to all of the Company's other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless the Investor and all of its affiliates, stockholders, officers, directors, members, managers, employees
and direct or indirect investors and any of the foregoing Person's agents or other representatives (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) (collectively, the "Indemnitees")
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation
or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, or (c) any cause of action, suit or claim brought or
made against such Indemnitee and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction
Documents or any other certificate, instrument or  document contemplated hereby or thereby, other than, in the case
of clause (c), with respect to Indemnified Liabilities which directly and primarily result from the fraud, gross negligence or
willful misconduct of an Indemnitee. The indemnity in this Section 8 shall not apply to amounts paid in settlement of any claim
if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld,
conditioned or delayed. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.  Payment under this indemnification shall be made within thirty (30) days from the date Investor
makes written request for it. A certificate containing reasonable detail as to the amount of such indemnification submitted to
the Company by Investor shall be conclusive evidence, absent manifest error, of the amount due from the Company to Investor. If
any action shall be brought against any Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such
Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with
counsel of its own choosing reasonably acceptable to the Indemnitee. Any Indemnitee shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnitee, except to the extent that (i) the employment thereof has been specifically authorized by the Company in
writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in
such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the
position of the Company and the position of such Indemnitee, in which case the Company shall be responsible for the reasonable
fees and expenses of no more than one such separate counsel.


 






    	 	17	 



     


    

 


9.            EVENTS
OF DEFAULT.


 


An
"Event of Default" shall be deemed to have occurred at any time as any of the following events occurs:


 


(a)           the
effectiveness of a registration statement (including, without limation the Base Prospectus and any prospectus supplement thereto)
registering the resale of the Purchase Shares (subject to any limits imposed by the SEC) lapses for any reason (including, without
limitation, the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof)
is unavailable to the Investor for resale of any or all of the Purchase Shares (subject to any limits imposed by the SEC) to be
issued to the Investor under the Transaction Documents, and such lapse or unavailability continues for a period of ten (10) consecutive
Business Days or for more than an aggregate of thirty (30) Business Days in any 365-day period, but excluding a lapse or unavailability
where (i) the Company terminates a registration statement after the Investor has confirmed in writing that all of the Purchase
Shares covered thereby have been resold or (ii) the Company supersedes one registration statement with another registration statement,
including (without limitation) by terminating a prior registration statement when it is effectively replaced with a new registration
statement covering Purchase Shares (provided in the case of this clause (ii) that all of the Purchase Shares covered by the superseded
(or terminated) registration statement that have not theretofore been resold are included in the superseding (or new) registration
statement);


 


(b)           the
suspension of the Common Stock from trading on the Principal Market for a period of three (3) consecutive Business Days, provided
that the Company may not direct the Investor to purchase any shares of Common Stock during any such suspension;


 


(c)           the
delisting of the Common Stock from the OTC Bulletin Board, provided, however, that the Common Stock is
not immediately thereafter trading on The NASDAQ Capital Market, The NASDAQ Global Market, the New York Stock Exchange, the NYSE
MKT or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or nationally recognized successor to any of the foregoing);


 






    	 	18	 



     


    

 


(d)          the
failure for any reason by the Transfer Agent to issue the Purchase Shares to the Investor within three (3) Business Days after
the applicable Purchase Date on which the Investor is entitled to receive such Purchase Shares;


 


(e)          the
Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such breach
could have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only if such
breach continues for a period of at least five (5) Business Days;


 


(f)           if any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy
Law;


 


(g)          if
the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the entry
of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable
to pay its debts as the same become due;


 


(h)          a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company
in an involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company or any Subsidiary; or


 


(i)      
     if at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares.


 


In
addition to any other rights and remedies under applicable law and this Agreement, so long as an Event of Default has occurred
and is continuing, or if any event which, after notice and/or lapse of time, would become an Event of Default, has occurred and
is continuing the Company shall not deliver to the Investor any Regular Purchase Notice.


 


10.          TERMINATION


 


This
Agreement may be terminated only as follows:


 


(a)           If
pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company
makes a general assignment for the benefit of its creditors (any of which would be an Event of Default as described in Sections
9 hereof), this Agreement shall automatically terminate without any liability or payment to the Company (except as set forth
below) without further action or notice by any Person.


 


(b)          In
the event that the Commencement shall not have occurred on or before February 15, 2017, due to the failure to satisfy the conditions
set forth in Sections 6 and 7 above with respect to the Commencement, either the Company or
the Investor shall have the option to terminate this Agreement at the close of business on such date or thereafter without liability
of any party to any other party (except as set forth below); provided, however, that the right to terminate this Agreement under
this Section 10(b) shall not be available to any party if such party is then in breach of any covenant or agreement
contained in this Agreement or any representation or warranty of such party contained in this Agreement fails to be true and correct
such that the conditions set forth in Section 6 or Section 7, as applicable, could not then be satisfied.


 






    	 	19	 



     


    

 


(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 Company’s 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
Company’s 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).


 


(e)           If,
for any reason or for no reason, $5,000,000 of Purchase Shares has not been purchased in accordance with Section 2 of
this Agreement by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, 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).


 


Except
as set forth in Sections 10(a) (in respect of an Event of Default under Sections 9(e), 9(f) and
9(g)), 10(d) and 10(e), any termination of this Agreement pursuant to this Section 10 shall
be effected by written notice from the Company to the Investor, or the Investor to the Company, as the case may be, setting forth
the basis for the termination hereof.  The representations and warranties and covenants of the Company and the Investor
contained in Sections 3, 4, and 5 hereof, the indemnification provisions set forth in Section
8 hereof and the agreements and covenants set forth in Sections 9, 10 and 11 shall
survive the Commencement and any termination of this Agreement.  No termination of this Agreement shall (i) affect the
Company’s or the Investor’s rights or obligations under (A) this Agreement with respect to pending Regular Purchases
and the Company and the Investor shall complete their respective obligations with respect to any pending Regular Purchases under
this Agreement, or (ii) be deemed to release the Company or the Investor from any liability for intentional misrepresentation
or willful breach of any of the Transaction Documents.


 


11.          MISCELLANEOUS.


 


(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.


 






    	 	20	 



     


    

 


(b)           Counterparts.  This
Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile
signature or signature delivered by e-mail in a “.pdf” format data file shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.


 


(c)           Headings.  The
headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.


 


(d)           Severability.  If
any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


(e)           Entire
Agreement.  The Transaction Documents supersede all other prior oral or written agreements between the Investor,
the Company, their affiliates and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement,
the other Transaction Documents and the instruments referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the
Investor makes any representation, warranty, covenant or undertaking with respect to such matters.  The Company acknowledges
and agrees that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than
as expressly set forth in the Transaction Documents.


 


(f)           Notices.  Any
notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed
to the party to receive the same. The addresses for such communications shall be:


 





	If to the Company: 	With a copy to (which shall not constitute notice or service of process):
	 	 
	Ecoark Holdings, Inc. 	Carmel, Milazzo & DiChiara, LLP
	3333 S Pinnacle Hills Parkway, Suite 220 	261 Madison Avenue, 9th Floor
	Rogers, AR 72758 	New York, NY 10016
	Telephone: (479) 259-2977 	Telephone:(646) 838-1312
	E-mail: RMay@ecoarkusa.com	E-mail: pdichiara@cmdllp.com
	Attention: Randy May 	Attention: Peter DiChiara, Esq.
	 	 







    	 	21	 



     


    

 


	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.




 


or
at such other address and/or facsimile number and/or to the attention of such other Person as the recipient party has specified
by written notice given to each other party three (3) Business Days prior to the effectiveness of such change.  Written
confirmation of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine or email account containing the time, date, and recipient facsimile number or email
address, as applicable, and an image of the first page of such transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.


 


(g)          Successors
and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.  The Company shall not assign this Agreement or any rights or obligations hereunder without
the prior written consent of the Investor, including by merger or consolidation.  The Investor may not assign its rights
or obligations under this Agreement.


 


(h)          No
Third Party Beneficiaries.  This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.


 


(i)      
    Publicity.  The Company shall afford the Investor and its counsel with the opportunity
to review and comment upon, shall consult with the Investor and its counsel on the form and substance of, and shall give due consideration
to all such comments from the Investor or its counsel on, any press release, SEC filing or any other public disclosure by or on
behalf of the Company relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions
contemplated thereby, not less than 24 hours prior to the issuance, filing or public disclosure thereof. The Investor must be
provided with a final version of any such press release, SEC filing or other public disclosure at least 24 hours prior to any
release, filing or use by the Company thereof. The Company agrees and acknowledges that its failure to fully comply with this
provision constitutes a Material Adverse Effect.


 


(j)        
   Further Assurances.  Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to consummate and make effective, as soon as reasonably possible, the Commencement,
and to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


(k)          No
Financial Advisor, Placement Agent, Broker or Finder.    The Company represents and warrants to the Investor
that, except as disclosed in writing to the Investor prior to any Closing Date it has not engaged any financial advisor, placement
agent, broker or finder in connection with the transactions contemplated hereby.   The Investor represents and warrants
to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions
contemplated hereby.  The Company shall be responsible for the payment of any fees or commissions, if any, of any financial
advisor, placement agent, broker or finder relating to or arising out of the transactions contemplated hereby.  The
Company shall pay, and hold the Investor harmless against, any liability, loss or expense (including, without limitation, attorneys'
fees and out of pocket expenses) arising in connection with any such claim.


 






    	 	22	 



     


    

 


(l)           No Strict Construction.  The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against
any party.


 


(m)         Remedies,
Other Obligations, Breaches and Injunctive Relief.  The Investor’s remedies provided in this Agreement, including,
without limitation, the Investor’s remedies provided in Section 8, shall be cumulative and in addition to all other remedies
available to the Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive
relief), no remedy of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to
such remedy and nothing herein shall limit the Investor's right to pursue actual damages for any failure by the Company to comply
with the terms of this Agreement.  The Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Investor and that the remedy at law for any such breach may be inadequate.  The Company therefore
agrees that, in the event of any such breach or threatened breach, the Investor shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other
security being required.


 


(n)          Enforcement
Costs.  If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced
by the Investor through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization,
receivership or other proceedings affecting creditors' rights and involving a claim under this Agreement; or (iii) an attorney
is retained to represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company
shall pay to the Investor, as incurred by the Investor, all reasonable costs and expenses including attorneys' fees incurred in
connection therewith, in addition to all other amounts due hereunder.


 


(o)          Amendment
and Waiver; Failure or Indulgence Not Waiver.  No provision of this Agreement may be amended other than by a written
instrument signed by both parties hereto and no provision of this Agreement may be waived other than in a written instrument signed
by the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege.


 


[Signature
pages follow]


 




    	 	23	 



     


    


 


IN
WITNESS WHEREOF, the Investor and the Company have caused this Purchase Agreement to be duly executed as of the date
first written above.


 





	 	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




 




    	 	24	 



     


    


 


EXHIBIT
A


 


REGULAR
PURCHASE NOTICE


 


Reference
is made to the Purchase Agreement dated as of January 13, 2017 (the "Purchase Agreement") between ECOARK HOLDINGS, INC.
and REDDIAMOND PARTNERS LLC. Capitalized terms used and not otherwise defined herein shall have the meanings given such terms
in the Purchase Agreement.







 


In
accordance with and pursuant to Section 2(a) of the Purchase Agreement, the Company hereby delivers this Regular Purchase Notice
to the Investor for the share amount indicated below.


 


	Number
    of Shares:	[____________________________]


 


	ECOARK
    HOLDINGS, INC.	 
	 	 	 
	By:	/s/
    Randy
    May 	 
	Name:	Randy
    May	 
	Title:	Chief
    Executive Officer	 
	Date:	[_________________]	 


 


In
accordance with and pursuant to Section 2(a) of the Purchase Agreement, the Investor hereby confirms this Regular Purchase Notice
to the Investor for the Purchase Price and Purchase Amount indicated below.


 


	Purchase
    Price:	$[____________________________]
	 	 
	Purchase
    Amount :	$[____________________________]


 


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