EXHIBIT 4.4



 


SECURITIES
PURCHASE AGREEMENT


 


This
SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of October 9, 2014, is entered into by and
between Windstream Technologies, Inc., a Wyoming corporation, (the “Company”), and Vista Capital Investments,
LLC (the “Buyer”).


 


A.
The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by the rules and regulations as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “1933 Act”).


 


B.
Upon the terms and conditions stated in this Agreement, the Buyer desires to purchase and the Company desires to issue and sell,
upon the terms and conditions set forth in this Agreement (i) a Convertible Promissory Note of the Company, in the form attached
hereto as Exhibit A, in the original principal amount of $220,000.00 (together with any note(s) issued in replacement
thereof or as a dividend thereon or otherwise with respect thereto in accordance with the terms thereof, the “Note”),
convertible into shares of common stock, $0.001 par value per share, of the Company (the “Common Stock”), (ii)
a five-year share purchase warrant entitling the Buyer to acquire shares of Common Stock, in the form attached hereto as Exhibit
B (the “Warrant”). 


 


NOW
THEREFORE, the Company and the Buyer hereby agree as follows:


 


1.
Purchase and Sale. On the Closing Date (as defined below), the Company shall issue and sell to the Buyer and the Buyer
agrees to purchase from the Company (i) the Note in the original principal amount of $220,000, and (ii) the Warrant to purchase
shares of Common Stock. The number of Warrants shall be determined by multiplying 50% (fifty percent) by the aggregate amount
of the Original Principal Amount that is funded and paid to the Company (as defined in the Note) divided by the Conversion Price
(as defined in the Note) on the day of closing.


 


1.1.
Form of Payment. On the Closing Date, (i) the Buyer shall pay the purchase price of $100,000 (the “Purchase Price”)
for the Securities to be issued and sold to it at the Closing (as defined below) by wire transfer of immediately available funds
to a company account designated by the Company, in accordance with the Company’s written wiring instructions, against delivery
of the Securities, and (ii) the Company shall deliver such duly executed Securities on behalf of the Company, to the Buyer, against
delivery of such Purchase Price.


 


1.2.
Closing Date. The date and time of the issuance and sale of the Securities pursuant to this Agreement (the “Closing Date”)
shall be on or about October 9, 2014, or such other mutually agreed upon time. The closing of the transactions contemplated by
this Agreement (the “Closing”) shall occur on the Closing Date at such location as may be agreed to by the
parties.


 


2.
Governing Law; Miscellaneous.


 


2.1.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without
regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated
by this Agreement shall be brought only in the state courts of San Diego County, California or in the federal courts located in
San Diego County, California. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of
any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum
non conveniens. In the event that any provision of this Agreement or any other agreement delivered in connection herewith
is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision
which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision
of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any
suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. THE COMPANY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 




    	 



    	 



    

 


2.2.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party.


 


2.3.
Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.


 


2.4.
Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any
law shall not affect the validity or enforceability of any other provision hereof.


 


2.5.
Entire Agreement; Amendments. This Agreement 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 Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the Buyer.


 


2.6.
Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall
be deemed effectively given on the earliest of:


 


(a)
the date delivered, if delivered by personal delivery as against written receipt therefor or by e-mail to an executive officer,
or by confirmed facsimile,


 


(b)
the fifth Trading Day after deposit, postage prepaid, in the United States Postal Service by registered or certified mail, or


 


(c)
the third Trading Day after mailing by domestic or international express courier, with delivery costs and fees prepaid, in each
case, addressed to each of the other parties thereunto entitled at the following addresses (or at such other addresses as such
party may designate by ten (10) calendar days’ advance written notice similarly given to each of the other parties hereto):


 


If
to the Company, to:


 


 ______________________________


 


 ______________________________


 


 ______________________________


 


 ______________________________


 


 




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If
to the Buyer:


 


VISTA
CAPITAL INVESTMENTS, LLC


 


 ______________________________


 


 ______________________________


 


 ______________________________


 


2.7.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and assigns. Notwithstanding anything to the contrary herein, the rights, interests or obligations of the Company hereunder may
not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the
Buyer, which consent may be withheld at the sole discretion of the Buyer; provided, however, that in the case of a merger, sale
of substantially all of the Company’s assets or other corporate reorganization, the Buyer shall not unreasonably withhold,
condition or delay such consent. This Agreement or any of the severable rights and obligations inuring to the benefit of or to
be performed by Buyer hereunder may be assigned by Buyer to a third party, including its financing sources, in whole or in part,
without the need to obtain the Company’s consent thereto.


 


2.8.
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.


 


2.9.
Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement
shall survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The
Company agrees to indemnify and hold harmless the Buyer and all its officers, directors, employees, attorneys, and agents for
loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations,
warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement
of expenses as they are incurred.


 


2.10.
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.


 


2.11.
Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that the Buyer shall be entitled, in addition to all other
available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining,
preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity
of showing economic loss and without any bond or other security being required.


 




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2.12.
Buyer’s Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction
Documents on the Buyer are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other
right, power, and remedy that the Buyer may have, whether specifically granted in this Agreement or any other Transaction Document,
or existing at law, in equity, or by statute; and any and all such rights and remedies may be exercised from time to time and
as often and in such order as the Buyer may deem expedient.


 


2.13.
Ownership Limitation. If at any time after the Closing, the Buyer shall or would receive shares of Common Stock in payment
of interest or principal under Note, upon conversion of Note, under the Warrant, or upon exercise of the Warrant, so that the
Buyer would, together with other shares of Common Stock held by it or its Affiliates, own or beneficially own by virtue of such
action or receipt of additional shares of Common Stock a number of shares exceeding 9.99% of the number of shares of Common Stock
outstanding on such date (the “Maximum Percentage”), the Company shall not be obligated and shall not issue to the
Buyer shares of Common Stock which would exceed the Maximum Percentage, but only until such time as the Maximum Percentage would
no longer be exceeded by any such receipt of shares of Common Stock by the Buyer. The foregoing limitations are enforceable, unconditional
and non-waivable and shall apply to all Affiliates and assigns of the Buyer. Additionally, for so long as the Buyer or any of
its Affiliate own Securities, upon written request from the Buyer, the Company shall post (or cause to be posted), the then-current
number of issued and outstanding shares of its capital stock to the Company’s web page located at OTCmarkets.com (or such
other web page approved by the Buyer).


 


2.14.
Attorneys’ Fees and Cost of Collection. In the event of any action at law or in equity to enforce or interpret the
terms of this Agreement or any of the other Transaction Documents, the parties agree that the party who is awarded the most money
shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount
of the attorneys’ fees and expenses paid by such prevailing party in connection with the litigation and/or dispute without
reduction or apportionment based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall
restrict or impair a court’s power to award fees and expenses for frivolous or bad faith pleading.


 


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	SUBSCRIPTION AMOUNT:	 	 	 
	 	 	 	 
	Original Principal Amount of Note:	 	$	220,000.00	 
	 	 	 	 	 
	Purchase Price:	 	$	100,000.00	 



 


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


 


THE
COMPANY: 


 


WINDSTREAM
TECHNOLOGIES, INC.


 


	By:	/s/
    Daniel Bates	 
	 	Daniel Bates,
    CEO	 
	 	 	 
	THE
    BUYER:	 
	 	 
	VISTA
    CAPITAL INVESTMENTS, LLC	 
	 	 
	By:	/s/
    David J. Clark	 
	 	David J.
    Clark, President	 


 




    	 



    	 



    

 


EXHIBIT
A


 


NOTE


 




    	 



    	 



    

 


EXHIBIT
B


 


WARRANT