Exhibit 10.1


 


Securities Purchase Agreement


 


This
Securities Purchase Agreement (this “Agreement”), dated as of July 24, 2019, is entered into by and between
CBAK Energy Technology, Inc., a Nevada corporation (“Company”),
and Atlas Sciences, LLC, a Utah limited liability company, its successors and/or
assigns (“Investor”).


 


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


 


B. Investor desires
to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement, a Promissory Note,
in the form attached hereto as Exhibit A, in the original principal amount of $1,395,000.00 (the “Note”).


 


C. This Agreement,
the Note, and all other certificates, documents, agreements, resolutions and instruments delivered to any party under or in connection
with this Agreement, as the same may be amended from time to time, are collectively referred to herein as the “Transaction
Documents”.


 


NOW, THEREFORE,
in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Company and Investor hereby agree as follows:


 


1. Purchase and
Sale of Note.


 


1.1. Purchase of Note.
Company shall issue and sell to Investor and Investor shall purchase from Company the Note. In consideration thereof, Investor
shall pay the Purchase Price (as defined below) to Company.


 


1.2. Form of Payment.
On the Closing Date (as defined below), Investor shall pay the Purchase Price to Company via wire transfer of immediately available
funds against delivery of the Note.


 


1.3. Closing Date.
Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, the date of the issuance
and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be July 24, 2019, or another mutually
agreed upon date. The closing of the transactions contemplated by this Agreement (the “Closing”) shall occur
on the Closing Date by means of the exchange by email of signed .pdf documents, but shall be deemed for all purposes to have occurred
at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.


 


1.4. Collateral for
the Note. The Note shall be unsecured.


 


1.5. Original Issue
Discount; Transaction Expense Amount. The Note carries an original issue discount of $125,000.00 (the “OID”).
In addition, Company agrees to pay $20,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence,
monitoring and other transaction costs incurred in connection with the purchase and sale of the Note (the “Transaction
Expense Amount”), all of which amount is included in the initial principal balance of the Note. The “Purchase
Price”, therefore, shall be $1,250,000.00, computed as follows: $1,395,000.00 initial principal balance, less the OID,
less the Transaction Expense Amount.


 






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2. Investor’s
Representations and Warranties. Investor represents and warrants to Company that as of the Closing Date: (i) Investor is a
limited liability company duly formed, validly existing and in good standing under the laws of its state of formation and has the
requisite limited liability company power and authority to enter into and consummate the transactions contemplated by the Transaction
Documents; (ii) each of the Transaction Documents to which it is a party and the transactions contemplated hereby and thereby have
been duly and validly authorized by Investor; (iii) each of the Transaction Documents to which it is a party constitutes a valid
and binding agreement of Investor enforceable in accordance with its terms; (iv) Investor is an “accredited investor”
as that term is defined in Rule 501(a) of Regulation D of the 1933 Act; (v) Investor is acquiring the Note as principal for its
own account and not with a view to or for distributing or reselling the Note or any part thereof in violation of the 1933 Act or
any applicable state securities law and has no present intention of distributing the Note in violation of the 1933 Act or any applicable
state securities law; (vi) Investor has such knowledge, sophistication and experience in business and financial matters so as to
be capable of evaluating the merits and risks of the prospective investment in the Note, and has so evaluated the merits and risks
of such investment; (vii) Investor acknowledges that it has had the opportunity to review the Transaction Documents and Company’s
filings with the SEC and has been afforded (A) the opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of Company concerning the transactions contemplated by the Transaction Documents and the merits and
risks of investing in the Note; (B) access to information about Company and its financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its investment and (C) the opportunity to obtain such
additional information that Company possesses or can acquire without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the investment; and (viii) Investor is not purchasing the Note as a result of any
advertisement, article, notice or other communication regarding the Note published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or, to Investor’s knowledge, any other general solicitation
or general advertisement.


 






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3. Company’s
Representations and Warranties. Company represents and warrants to Investor that as of the Closing Date: (i) Company is a corporation
duly organized, validly existing and in good standing under the laws of its state of incorporation and has the requisite corporate
power to own its properties and to carry on its business as now being conducted; (ii) Company is duly qualified as a foreign corporation
to do business and is in good standing in each jurisdiction where the nature of the business conducted or property owned by it
makes such qualification necessary; (iii) Company has registered its common stock, $0.001 par value per share (the “Common
Stock”), under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “1934 Act”),
and is obligated to file reports pursuant to Section 13 or Section 15(d) of the 1934 Act; (iv) each of the Transaction
Documents and the transactions contemplated hereby and thereby, have been duly and validly authorized by Company and all necessary
actions have been taken; (v) this Agreement, the Note, and the other Transaction Documents have been duly executed and delivered
by Company and constitute the valid and binding obligations of Company enforceable in accordance with their terms; (vi) the execution
and delivery of the Transaction Documents by Company, the issuance of the Note in accordance with the terms hereof, and the consummation
by Company of the other transactions contemplated by the Transaction Documents do not and will not conflict with or result in a
breach by Company of any of the terms or provisions of, or constitute a default under (a) Company’s formation documents or
bylaws, each as currently in effect, (b) any indenture, mortgage, deed of trust, or other material agreement or instrument to which
Company is a party or by which it or any of its properties or assets are bound, including, without limitation, any listing agreement
for the Common Stock, or (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any
court, United States federal, state or foreign regulatory body, administrative agency, or other governmental body having jurisdiction
over Company or any of Company’s properties or assets; (vii) no further authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender
of Company is required to be obtained by Company for the issuance of the Note to Investor or the entering into of the Transaction
Documents; (viii) none of Company’s filings with the SEC contained, at the time they were filed, any untrue statement of
a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they were made, not misleading; (ix) since January 1, 2017, Company has filed all reports,
schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act on a timely basis
or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or other document
prior to the expiration of any such extension; (x) except for the lawsuits disclosed in the Company’s SEC filings, there
is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge
of Company, threatened against or affecting Company before or by any governmental authority or non-governmental department, commission,
board, bureau, agency or instrumentality or any other person, wherein an unfavorable decision, ruling or finding would have a material
adverse effect on Company or which would adversely affect the validity or enforceability of, or the authority or ability of Company
to perform its obligations under, any of the Transaction Documents; (xi) Company has not consummated any financing transaction
that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; (xii) Company is not, nor has
it been at any time in the previous twelve (12) months, a “Shell Company,” as such type of “issuer” is
described in Rule 144(i)(1) under the 1933 Act; (xiii) with respect to any commissions, placement agent or finder’s fees
or similar payments that will or would become due and owing by Company to any person or entity as a result of this Agreement or
the transactions contemplated hereby (“Broker Fees”), any such Broker Fees will be made in full compliance with
all applicable laws and regulations and only to a person or entity that is a registered investment adviser or registered broker-dealer;
(xiv) Investor shall have no obligation with respect to any Broker Fees or with respect to any claims made by or on behalf of other
persons for fees of a type contemplated in this subsection that may be due in connection with the transactions contemplated hereby
and Company shall indemnify and hold harmless each of Investor, Investor’s employees, officers, directors, stockholders,
members, managers, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including
the costs of preparation and attorneys’ fees) and expenses suffered in respect of any such claimed Broker Fees; (xv) neither
Investor nor any of its officers, directors, stockholders, members, managers, employees, agents or representatives has made any
representations or warranties to Company or any of its officers, directors, employees, agents or representatives except as expressly
set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by the Transaction
Documents, Company is not relying on any representation, warranty, covenant or promise of Investor or its officers, directors,
members, managers, employees, agents or representatives other than as set forth in the Transaction Documents; and (xvi) Company
acknowledges that the State of Utah has a reasonable relationship and sufficient contacts to the transactions contemplated by the
Transaction Documents and any dispute that may arise related thereto such that the laws and venue of the State of Utah, as set
forth more specifically in Section 9.2 below, shall be applicable to the Transaction Documents and the transactions contemplated
therein. Company further covenants and agrees that it will not use any of the representations and warranties made by Investor in
Section 2 above as a defense to performance of its obligations under the Transaction Documents to repay the Note or in any attempt
to avoid, modify or reduce such obligations. For the avoidance of doubt, if Company claims Investor has breached any of its representations
and warranties in Section 2 above after the 30th day from the Closing Date, it shall continue to be obligated to repay
the full outstanding amount of the Note (including all the OID, Transaction Expense, and all accrued interest) notwithstanding
such breach; provided that if Company raises such a defense to performance prior to the 30th day from the Closing Date
and the arbitrator selected in any arbitration concerning the Transaction Documents (or judge in any lawsuit) determines that a
representation or warranty made by Investor was materially false, then in such event Borrower shall only be obligated to return
to Investor in cash the Purchase Price paid by Investor for the Note along with the Transaction Expense, but in such event it shall
have no obligation to return either the OID or pay any interest on such amount.


 






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4. Company Covenants.
Until all of Company’s obligations under all of the Transaction Documents are paid and performed in full, or within the timeframes
otherwise specifically set forth below, Company will at all times comply with the following covenants: (i) so long as Investor
beneficially owns any portion of the Note and for at least twenty (20) Trading Days (as defined in the Note) thereafter, Company
will timely file on the applicable deadline all reports required to be filed with the SEC pursuant to Sections 13 or 15(d)
of the 1934 Act, and will take all reasonable action under its control to ensure that adequate current public information with
respect to Company, as required in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its
status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would
permit such termination; (ii) the Common Stock shall be listed or quoted for trading on any of (a) NYSE, (b) NASDAQ, (c) OTCQX,
or (d) OTCQB; (iii) trading in Company’s Common Stock will not be suspended, halted, chilled, frozen, reach zero bid or otherwise
cease trading on Company’s principal trading market; and (iv) Company will not make any Restricted Issuances (as defined
below) where Company receives net proceeds in an amount less than $1,250,000.00 after the Closing Date without Investor’s
prior written consent, which consent may be granted or withheld in Investor’s sole and absolute discretion. For purposes
hereof, the term “Restricted Issuance” means any issuance of any Company securities that (A) have or may have
conversion rights of any kind, contingent, conditional or otherwise, in which the number of shares that may be issued pursuant
to such conversion right varies with the market price of the Common Stock, or (B) are or may become convertible into Common Stock
(including without limitation convertible debt, warrants or convertible preferred stock), with a conversion price that varies with
the market price of the Common Stock, even if such security only becomes convertible following an event of default, the passage
of time, or another trigger event or condition. For avoidance of doubt, the issuance of shares of Common Stock under, pursuant
to, in exchange for or in connection with any contract or instrument, whether convertible or not, is deemed a Restricted Issuance
for purposes hereof if the number of shares of Common Stock to be issued is based upon or related in any way to the market price
of the Common Stock, including, but not limited to, Common Stock issued in connection with a Section 3(a)(9) exchange, a Section
3(a)(10) settlement, or any other similar settlement or exchange. Notwithstanding the foregoing, any sale or issuance of discounted
Common Stock at a fixed price and any issuance of Excluded Securities (as defined below) shall not be deemed as a Restricted Issuance.


 


5. Conditions to
Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note to Investor at the Closing
is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:


 


5.1. Investor shall have
executed this Agreement and delivered the same to Company.


 


5.2. Investor shall have
delivered the Purchase Price to Company in accordance with Section 1.2 above.


 


6. Conditions to
Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note at the Closing is subject
to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these conditions are for
Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:


 


6.1. Company shall have
executed this Agreement and the Note and delivered the same to Investor.


 


6.2. Company shall have
delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto as Exhibit B
evidencing Company’s approval of the Transaction Documents.


 






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6.3. Company shall have
delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company herein or therein.


 


7. OFAC; Patriot
Act.


 


7.1. OFAC Certification.
Company certifies that (i) it is not acting on behalf of any person, group, entity, or nation named by any Executive Order or the
United States Treasury Department, through its Office of Foreign Assets Control (“OFAC”) or otherwise, as a
terrorist, “Specially Designated Nation”, “Blocked Person”, or other banned or blocked person, entity,
nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by OFAC or another department
of the United States government, and (ii) Company is not engaged in this transaction on behalf of, or instigating or facilitating
this transaction on behalf of, any such person, group, entity or nation.


 


7.2. Foreign Corrupt
Practices. Neither Company, nor any of its subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of Company or any subsidiary has, in the course of his actions for, or on behalf of, Company, used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation
of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic government official or employee.


 


7.3. Patriot Act.
Company shall not (i) be or become subject at any time to any law, regulation, or list of any government agency (including, without
limitation, the OFAC) that prohibits or limits Investor from making any advance or extension of credit to Company or from otherwise
conducting business with Company, or (ii) fail to provide documentary and other evidence of Company’s identity as may be
requested by Investor at any time to enable Investor to verify Company’s identity or to comply with any applicable law or
regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318. Company shall comply
with all requirements of law relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter
in effect. Upon Investor’s request from time to time, Company shall certify in writing to Investor that Company’s representations,
warranties and obligations under this Section 7.3 remain true and correct and have not been breached. Company shall immediately
notify Investor in writing if any of such representations, warranties or covenants are no longer true or have been breached or
if Company has a reasonable basis to believe that they may no longer be true or have been breached. In connection with such an
event, Company shall comply with all requirements of law and directives of governmental authorities and, at Investor’s request,
provide to Investor copies of all notices, reports and other communications exchanged with, or received from, governmental authorities
relating to such an event. Company shall also reimburse Investor any expense incurred by Investor in evaluating the effect of such
an event on the loan secured hereby, in obtaining any necessary license from governmental authorities as may be necessary for Investor
to enforce its rights under the Transaction Documents, and in complying with all requirements of law applicable to Investor as
the result of the existence of such an event and for any penalties or fines imposed upon Investor as a result thereof.


 


8. Terms of Future
Financings. So long as the Note is outstanding, upon any issuance by Company of any security (excluding any Excluded Securities
issued or sold or deemed to have been issued or sold) with any term or condition more favorable to the holder of such security
or with a term in favor of the holder of such security that was not similarly provided to Investor in the Transaction Documents,
then Company shall notify Investor of such additional or more favorable term and such term, at Investor’s option, shall become
a part of the Transaction Documents for the benefit of Investor. Additionally, if Company fails to notify Investor of any such
additional or more favorable term, but Investor becomes aware that Company has granted such a term to any third party, Investor
may notify Company of such additional or more favorable term and such term shall become a part of the Transaction Documents retroactive
to the date on which such term was granted to the applicable third party. The types of terms contained in another security that
may be more favorable to the holder of such security include, but are not limited to, terms addressing conversion discounts, conversion
lookback periods, interest rates, original issue discounts, stock sale price, conversion price per share, warrant coverage, warrant
exercise price, and anti-dilution/conversion and exercise price resets. The term “Excluded Securities” means
(i) Common Stock or options to purchase Common Stock issued under any employee benefit plan which has been approved by the board
of directors of Company prior to or subsequent to the date hereof pursuant to which securities of Company may be issued to any
employee, consultant, officer or director for services provided to Company in their capacity as such and (ii) Common Stock issued
in connection with strategic alliances, strategic mergers and acquisitions and strategic partnerships approved by a majority of
the disinterested directors of the Company.


 






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9. Miscellaneous.
The provisions set forth in this Section 9 shall apply to this Agreement, as well as all other Transaction Documents as if these
terms were fully set forth therein; provided, however, that in the event there is a conflict between any provision set forth in
this Section 9 and any provision in any other Transaction Document, the provision in such other Transaction Document shall govern.


 


9.1. Arbitration of
Claims. The parties shall submit all Claims (as defined in Exhibit C) arising under this Agreement or any other Transaction
Document or any other agreement between the parties and their affiliates or any Claim relating to the relationship of the parties
to binding arbitration pursuant to the arbitration provisions set forth in Exhibit C attached hereto (the “Arbitration
Provisions”). For the avoidance of doubt, the parties agree that the injunction described in Section 9.3 below may be
pursued in an arbitration that is separate and apart from any other arbitration regarding all other Claims arising under the Transaction
Documents. The parties hereby acknowledge and agree that the Arbitration Provisions are unconditionally binding on the parties
hereto and are severable from all other provisions of this Agreement. By executing this Agreement, Company represents, warrants
and covenants that Company has reviewed the Arbitration Provisions carefully, consulted with legal counsel about such provisions
(or waived its right to do so), understands that the Arbitration Provisions are intended to allow for the expeditious and efficient
resolution of any dispute hereunder, agrees to the terms and limitations set forth in the Arbitration Provisions, and that Company
will not take a position contrary to the foregoing representations. Company acknowledges and agrees that Investor may rely upon
the foregoing representations and covenants of Company regarding the Arbitration Provisions.


 


9.2. Governing Law;
Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the internal laws of the State of Utah, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of Utah. Each party consents to and expressly agrees that
the exclusive venue for arbitration of any dispute arising out of or relating to any Transaction Document or the relationship of
the parties or their affiliates shall be in Salt Lake County, Utah. Without modifying the parties’ obligations to resolve
disputes hereunder pursuant to the Arbitration Provisions, for any litigation arising in connection with any of the Transaction
Documents, each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction of any state or
federal court sitting in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court for the purposes
hereof, (iii) agrees to not bring any such action (specifically including, without limitation, any action where Company seeks to
obtain an injunction, temporary restraining order, or otherwise prohibit Company’s transfer agent (the “Transfer
Agent”) from issuing shares of Common Stock to Investor for any reason) outside of any state or federal court sitting
in Salt Lake County, Utah, and (iv) waives any claim of improper venue and any claim or objection that such courts are an inconvenient
forum or any other claim, defense or objection to the bringing of any such proceeding in such jurisdiction or to any claim that
such venue of the suit, action or proceeding is improper. Finally, Company covenants and agrees to name Investor as a party in
interest in, and provide written notice to Investor in accordance with Section 9.10 below prior to bringing or filing, any action
(including without limitation any filing or action against any person or entity that is not a party to this Agreement, including
without limitation the Transfer Agent) that is related in any way to the Transaction Documents or any transaction contemplated
herein or therein, including without limitation any action brought by Company to enjoin or prevent the issuance of any shares of
Common Stock to Investor by the Transfer Agent, and further agrees to timely name Investor as a party to any such action. Company
acknowledges that the governing law and venue provisions set forth in this Section 9.2 are material terms to induce Investor to
enter into the Transaction Documents and that but for Company’s agreements set forth in this Section 9.2 Investor would not
have entered into the Transaction Documents.


 






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9.3. Specific Performance.
Company acknowledges and agrees that Investor may suffer irreparable harm in the event that Company fails to perform any material
provision of this Agreement or any of the other Transaction Documents in accordance with its specific terms. It is accordingly
agreed that Investor shall be entitled to one or more injunctions to prevent or cure breaches of the provisions of this Agreement
or such other Transaction Document and to enforce specifically the terms and provisions hereof or thereof, this being in addition
to any other remedy to which the Investor may be entitled under the Transaction Documents, at law or in equity. Company specifically
agrees that following an Event of Default (as defined in the Note) under the Note, Investor shall have the right to seek and receive
injunctive relief from a court or an arbitrator prohibiting Company from issuing any of its common or preferred stock to any party
unless the Note is being paid in full simultaneously with such issuance. Company specifically acknowledges that Investor’s
right to obtain specific performance constitutes bargained for leverage and that the loss of such leverage would result in irreparable
harm to Investor. For the avoidance of doubt, in the event Investor seeks to obtain an injunction from a court or an arbitrator
against Company or specific performance of any provision of any Transaction Document, such action shall not be a waiver of any
right of Investor under any Transaction Document, at law, or in equity, including without limitation its rights to arbitrate any
Claim pursuant to the terms of the Transaction Documents, nor shall Investor’s pursuit of an injunction prevent Investor,
under the doctrines of claim preclusion, issues preclusion, res judicata or other similar legal doctrines, from pursuing other
Claims in the future in a separate arbitration.


 


9.4. No Shorting.
During the period beginning on the Closing Date and ending on the date the Note has been repaid in full or sold by Investor to
a third party that is not an affiliate of Investor, Investor will not directly or through an affiliate engage in any open market
Short Sales (as defined below) of the Common Stock; provided; however, that unless and until Company has affirmatively demonstrated
by the use of specific evidence that Investor is engaging in open market Short Sales, Investor shall be assumed to be in compliance
with the provisions of this Section 9.4 and Company shall remain fully obligated to fulfill all of its obligations under the Transaction
Documents; and provided, further, that (i) Company shall under no circumstances be entitled to request or demand that Investor
either (A) provide trading or other records of Investor or of any party or (B) affirmatively demonstrate that Investor or any other
party has not engaged in any such Short Sales in breach of these provisions as a condition to Company’s fulfillment of its
obligations under any of the Transaction Documents, (ii) Company shall not assert Investor’s or any other party’s failure
to demonstrate such absence of such Short Sales or provide any trading or other records of Investor or any other party as all or
part of a defense to any breach of Company’s obligations under any of the Transaction Documents, and (iii) Company shall
have no setoff right with respect to any such Short Sales. As used herein, “Short Sale” has the meaning
provided in Rule 200 promulgated under Regulation SHO under the 1934 Act.


 






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9.5. Counterparts.
Each Transaction Document may be executed in any number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another party’s executed
counterpart of a Transaction Document (or such party’s signature page thereof) will be deemed to be an executed original
thereof.


 


9.6. 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.


 


9.7. 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
to 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.


 


9.8. Entire Agreement.
This Agreement, together with the other Transaction Documents, contains 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 Company nor Investor makes
any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance of doubt, all prior term
sheets or other documents between Company and Investor, or any affiliate thereof, related to the transactions contemplated by the
Transaction Documents (collectively, “Prior Agreements”), that may have been entered into between Company and
Investor, or any affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by the Transaction Documents.
To the extent there is a conflict between any term set forth in any Prior Agreement and the term(s) of the Transaction Documents,
the Transaction Documents shall govern.


 


9.9. Amendments.
No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both parties hereto.


 


9.10. 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: (i) the date delivered, if delivered by personal delivery as against written receipt therefor or by email
to an executive officer named below or such officer’s successor, or by facsimile (with successful transmission confirmation
which is kept by sending party), (ii) the earlier of the date delivered or the third Trading Day after deposit, postage prepaid,
in the United States Postal Service by certified mail, or (iii) the earlier of the date delivered or the third Trading Day after
mailing by 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 five (5) calendar days’ advance
written notice similarly given to each of the other parties hereto):


 


If to Company:


 


CBAK Energy Technology, Inc.


Attn: Yunfei Li


Huayuankou Economic Zone


Dalia City, Liaoning Province,


People’s Republic of China 116450


 






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If to Investor:


 


Atlas Sciences, LLC


Attn: John Finlayson


3051 West Maple Loop Drive, Suite 325


Lehi, Utah 84043


 


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


 


Hansen Black Anderson Ashcraft PLLC


Attn: Jonathan Hansen


3051 West Maple Loop Drive, Suite 325


Lehi, Utah 84043


 


9.11. Successors and
Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by Investor
hereunder may be assigned by Investor to a third party, including its affiliates, in whole or in part, without the need to obtain
Company’s consent thereto. Company may not assign its rights or obligations under this Agreement or delegate its duties hereunder
without the prior written consent of Investor.


 


9.12. Survival.
The representations and warranties of 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 Investor. Company agrees to indemnify and
hold harmless Investor 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 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.


 


9.13. 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 carry
out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.


 


9.14. Investor’s
Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents
are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy
that Investor 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 Investor may deem expedient.


 


9.15. Attorneys’
Fees and Cost of Collection. In the event of any arbitration or 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 (which,
for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded
to any party) shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of the
full amount of the reasonable attorneys’ fees, deposition costs, and expenses paid by such prevailing party in connection
with arbitration or litigation without reduction or apportionment based upon the individual claims or defenses giving rise to the
fees and expenses. Nothing herein shall restrict or impair an arbitrator’s or a court’s power to award fees and expenses
for frivolous or bad faith pleading. If (i) the Note is placed in the hands of an attorney for collection or enforcement prior
to commencing arbitration or legal proceedings, or is collected or enforced through any arbitration or legal proceeding, or Investor
otherwise takes action to collect amounts due under the Note or to enforce the provisions of the Note, or (ii) there occurs
any bankruptcy, reorganization, receivership of Company or other proceedings affecting Company’s creditors’ rights
and involving a claim under the Note; then Company shall pay the costs incurred by Investor for such collection, enforcement or
action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without limitation,
reasonable attorneys’ fees, expenses, deposition costs, and disbursements.


 






    9


     


    

 


9.16. Waiver.
No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by the party granting
the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision or
consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent
or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.


 


9.17. Waiver
of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR THE RELATIONSHIPS
OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON
LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND
VOLUNTARILY WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.


 


9.18. Time is of the
Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement and the other Transaction
Documents.


 


9.19. Voluntary Agreement.
Company has carefully read this Agreement and each of the other Transaction Documents and has asked any questions needed for Company
to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction Documents and fully
understand them. Company has had the opportunity to seek the advice of an attorney of Company’s choosing, or has waived the
right to do so, and is executing this Agreement and each of the other Transaction Documents voluntarily and without any duress
or undue influence by Investor or anyone else.


 


[Remainder of page intentionally left
blank; signature page follows]


 




    10


     


    

 


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


 


SUBSCRIPTION AMOUNT:


 


	Principal Amount of Note:	 	$	1,395,000.00	 
	 	 	 	 	 
	Purchase Price:	 	$	1,250,000.00	 



 


	 	INVESTOR:
	 	 
	 	Atlas Sciences, LLC
	 	 	 
	 	By: 	/s/ John Finlayson
	 	 	John Finlayson, CEO
	 	 	 
	 	COMPANY:
	 	 
	 	CBAK Energy Technology, Inc.
	 	 	 
	 	By:	/s/ Yunfei Li
	 	Printed Name: Yunfei Li
	 	Title: CEO


 


[Signature Page to Securities Purchase
Agreement]


  




     


     


    

 


ATTACHED EXHIBITS:


 


	Exhibit A 	Note
	Exhibit B 	Secretary’s Certificate
	Exhibit C 	Arbitration Provisions




 




     


     


    

 


Exhibit
C


 


ARBITRATION PROVISIONS


 


1. Dispute Resolution. For purposes
of this Exhibit C, the term “Claims” means any disputes, claims, demands, causes of action, requests
for injunctive relief, requests for specific performance, liabilities, damages, losses, or controversies whatsoever arising from,
related to, or connected with the transactions contemplated in the Transaction Documents and any communications between the parties
related thereto, including without limitation any claims of mutual mistake, mistake, fraud, misrepresentation, failure of formation,
failure of consideration, promissory estoppel, unconscionability, failure of condition precedent, rescission, and any statutory
claims, tort claims, contract claims, or claims to void, invalidate or terminate the Agreement (or these Arbitration Provisions
(defined below)) or any of the other Transaction Documents. For the avoidance of doubt, Investor’s pursuit of an injunction
or other Claim pursuant to these Arbitration Provisions or with a court will not later prevent Investor under the doctrines of
claim preclusion, issue preclusion, res judicata or other similar legal doctrines from pursuing other Claims in a separate arbitration
in the future. The parties to this Agreement (the “parties”) hereby agree that the Claims may be arbitrated
in one or more Arbitrations pursuant to these Arbitration Provisions (one for an injunction or injunctions and a separate one for
all other Claims). The term “Claims” specifically excludes a dispute over Calculations. The parties to the Agreement
hereby agree that the arbitration provisions set forth in this Exhibit C (“Arbitration Provisions”) are
binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or declare the Agreement
(or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable for any reason is subject to these
Arbitration Provisions. These Arbitration Provisions shall also survive any termination or expiration of the Agreement. Any capitalized
term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.


 


2. Arbitration. Except as otherwise
provided herein, all Claims must be submitted to arbitration (“Arbitration”) to be conducted exclusively in
Salt Lake County, Utah and pursuant to the terms set forth in these Arbitration Provisions. Subject to the arbitration appeal right
provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that the award of the arbitrator rendered
pursuant to Paragraph 4 below (the “Arbitration Award”) shall be (a) final and binding upon the parties, (b)
the sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to
the arbitrator, and (c) promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary
awards). Subject to the Appeal Right, any costs or fees, including without limitation attorneys’ fees, incurred in connection
with or incident to enforcing the Arbitration Award shall, to the maximum extent permitted by law, be charged against the party
resisting such enforcement. The Arbitration Award shall include default interest (as defined or otherwise provided for in the Note,
“Default Interest”) (with respect to monetary awards) at the rate specified in the Note for Default Interest
both before and after the Arbitration Award. Judgment upon the Arbitration Award will be entered and enforced by any state or federal
court sitting in Salt Lake County, Utah.


 


3. The Arbitration Act. The parties
hereby incorporate herein the provisions and procedures set forth in the Utah Uniform Arbitration Act, U.C.A. § 78B-11-101
et seq. (as amended or superseded from time to time, the “Arbitration Act”). Notwithstanding the foregoing,
pursuant to, and to the maximum extent permitted by, Section 105 of the Arbitration Act, in the event of conflict or variation
between the terms of these Arbitration Provisions and the provisions of the Arbitration Act, the terms of these Arbitration Provisions
shall control and the parties hereby waive or otherwise agree to vary the effect of all requirements of the Arbitration Act that
may conflict with or vary from these Arbitration Provisions.


 


4. Arbitration Proceedings. Arbitration
between the parties will be subject to the following:


 


4.1 Initiation
of Arbitration. Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate Arbitration by
giving written notice to the other party (“Arbitration Notice”) in the same manner that notice is permitted
under Section 9.10 of the Agreement; provided, however, that the Arbitration Notice may not be given by email or fax. Arbitration
will be deemed initiated as of the date that the Arbitration Notice is deemed delivered to such other party under Section 9.10
of the Agreement (the “Service Date”). After the Service Date, information may be delivered, and notices may
be given, by email or fax pursuant to Section 9.10 of the Agreement or any other method permitted thereunder. The Arbitration Notice
must describe the nature of the controversy, the remedies sought, and the election to commence Arbitration proceedings. All Claims
in the Arbitration Notice must be pleaded consistent with the Utah Rules of Civil Procedure.


 






     


     


    

 


4.2 Selection and
Payment of Arbitrator.


 


(a) Within ten (10)
calendar days after the Service Date, Investor shall select and submit to Company the names of three (3) arbitrators that are designated
as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such three (3) designated
persons hereunder are referred to herein as the “Proposed Arbitrators”). For the avoidance of doubt, each Proposed
Arbitrator must be qualified as a “neutral” with Utah ADR Services. Within five (5) calendar days after Investor has
submitted to Company the names of the Proposed Arbitrators, Company must select, by written notice to Investor, one (1) of the
Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions. If Company fails to select one
of the Proposed Arbitrators in writing within such 5-day period, then Investor may select the arbitrator from the Proposed Arbitrators
by providing written notice of such selection to Company.


 


(b) If Investor fails
to submit to Company the Proposed Arbitrators within ten (10) calendar days after the Service Date pursuant to subparagraph (a)
above, then Company may at any time prior to Investor so designating the Proposed Arbitrators, identify the names of three (3)
arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Service by written notice to Investor.
Investor may then, within five (5) calendar days after Company has submitted notice of its Proposed Arbitrators to Investor, select,
by written notice to Company, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration
Provisions. If Investor fails to select in writing and within such 5-day period one (1) of the three (3) Proposed Arbitrators selected
by Company, then Company may select the arbitrator from its three (3) previously selected Proposed Arbitrators by providing written
notice of such selection to Investor.


 


(c) If a Proposed
Arbitrator chosen to serve as arbitrator declines or is otherwise unable to serve as arbitrator, then the party that selected such
Proposed Arbitrator may select one (1) of the other three (3) Proposed Arbitrators within three (3) calendar days of the date the
chosen Proposed Arbitrator declines or notifies the parties he or she is unable to serve as arbitrator. If all three (3) Proposed
Arbitrators decline or are otherwise unable to serve as arbitrator, then the arbitrator selection process shall begin again in
accordance with this Paragraph 4.2.


 


(d) The date that
the Proposed Arbitrator selected pursuant to this Paragraph 4.2 agrees in writing (including via email) delivered to both parties
to serve as the arbitrator hereunder is referred to herein as the “Arbitration Commencement Date”. If an arbitrator
resigns or is unable to act during the Arbitration, a replacement arbitrator shall be chosen in accordance with this Paragraph
4.2 to continue the Arbitration. If Utah ADR Services ceases to exist or to provide a list of neutrals and there is no successor
thereto, then the arbitrator shall be selected under the then prevailing rules of the American Arbitration Association.


 


(e) Subject to Paragraph
4.10 below, the cost of the arbitrator must be paid equally by both parties. Subject to Paragraph 4.10 below, if one party refuses
or fails to pay its portion of the arbitrator fee, then the other party can advance such unpaid amount (subject to the accrual
of Default Interest thereupon), with such amount being added to or subtracted from, as applicable, the Arbitration Award.


 


4.3 Applicability
of Certain Utah Rules. The parties agree that the Arbitration shall be conducted generally in accordance with the Utah Rules
of Civil Procedure and the Utah Rules of Evidence. More specifically, the Utah Rules of Civil Procedure shall apply, without limitation,
to the filing of any pleadings, motions or memoranda, the conducting of discovery, and the taking of any depositions. The Utah
Rules of Evidence shall apply to any hearings, whether telephonic or in person, held by the arbitrator. Notwithstanding the foregoing,
it is the parties’ intent that the incorporation of such rules will in no event supersede these Arbitration Provisions. In
the event of any conflict between the Utah Rules of Civil Procedure or the Utah Rules of Evidence and these Arbitration Provisions,
these Arbitration Provisions shall control.


 


4.4 Answer and
Default. An answer and any counterclaims to the Arbitration Notice shall be required to be delivered to the party initiating
the Arbitration within twenty (20) calendar days after the Arbitration Commencement Date. If an answer is not delivered by the
required deadline, the arbitrator must provide written notice to the defaulting party stating that the arbitrator will enter a
default award against such party if such party does not file an answer within five (5) calendar days of receipt of such notice.
If an answer is not filed within the five (5) day extension period, the arbitrator must render a default award, consistent with
the relief requested in the Arbitration Notice, against a party that fails to submit an answer within such time period.


 






     


     


    

 


4.5 Related Litigation.
The party that delivers the Arbitration Notice to the other party shall have the option to also commence concurrent legal proceedings
with any state or federal court sitting in Salt Lake County, Utah (“Litigation Proceedings”), subject to the
following: (a) the complaint in the Litigation Proceedings is to be substantially similar to the claims set forth in the Arbitration
Notice, provided that an additional cause of action to compel arbitration will also be included therein, (b) so long as the other
party files an answer to the complaint in the Litigation Proceedings and an answer to the Arbitration Notice, the Litigation Proceedings
will be stayed pending an Arbitration Award (or Appeal Panel Award (defined below), as applicable) hereunder, (c) if the other
party fails to file an answer in the Litigation Proceedings or an answer in the Arbitration proceedings, then the party initiating
Arbitration shall be entitled to a default judgment consistent with the relief requested, to be entered in the Litigation Proceedings,
and (d) any legal or procedural issue arising under the Arbitration Act that requires a decision of a court of competent jurisdiction
may be determined in the Litigation Proceedings. Any award of the arbitrator (or of the Appeal Panel (defined below)) may be entered
in such Litigation Proceedings pursuant to the Arbitration Act.


 


4.6 Discovery.
Pursuant to Section 118(8) of the Arbitration Act, the parties agree that discovery shall be conducted as follows:


 


(a) Written discovery
will only be allowed if the likely benefits of the proposed written discovery outweigh the burden or expense thereof, and the written
discovery sought is likely to reveal information that will satisfy a specific element of a claim or defense already pleaded in
the Arbitration. The party seeking written discovery shall always have the burden of showing that all of the standards and limitations
set forth in these Arbitration Provisions are satisfied. The scope of discovery in the Arbitration proceedings shall also be limited
as follows:


 


(i) To facts
directly connected with the transactions contemplated by the Agreement.


   


(ii) To
facts and information that cannot be obtained from another source or in another manner that is more convenient, less burdensome
or less expensive than in the manner requested.


   


(b) No party shall
be allowed (i) more than fifteen (15) interrogatories (including discrete subparts), (ii) more than fifteen (15) requests for admission
(including discrete subparts), (iii) more than ten (10) document requests (including discrete subparts), or (iv) more than three
(3) depositions (excluding expert depositions) for a maximum of seven (7) hours per deposition. The costs associated with depositions
will be borne by the party taking the deposition. The party defending the deposition will submit a notice to the party taking the
deposition of the estimated attorneys’ fees that such party expects to incur in connection with defending the deposition.
If the party defending the deposition fails to submit an estimate of attorneys’ fees within five (5) calendar days of its
receipt of a deposition notice, then such party shall be deemed to have waived its right to the estimated attorneys’ fees.
The party taking the deposition must pay the party defending the deposition the estimated attorneys’ fees prior to taking
the deposition, unless such obligation is deemed to be waived as set forth in the immediately preceding sentence. If the party
taking the deposition believes that the estimated attorneys’ fees are unreasonable, such party may submit the issue to the
arbitrator for a decision. All depositions will be taken in Utah.


 


(c) All discovery
requests (including document production requests included in deposition notices) must be submitted in writing to the arbitrator
and the other party. The party submitting the written discovery requests must include with such discovery requests a detailed explanation
of how the proposed discovery requests satisfy the requirements of these Arbitration Provisions and the Utah Rules of Civil Procedure.
The receiving party will then be allowed, within five (5) calendar days of receiving the proposed discovery requests, to submit
to the arbitrator an estimate of the attorneys’ fees and costs associated with responding to such written discovery requests
and a written challenge to each applicable discovery request. After receipt of an estimate of attorneys’ fees and costs and/or
challenge(s) to one or more discovery requests, consistent with subparagraph (c) above, the arbitrator will within three (3) calendar
days make a finding as to the likely attorneys’ fees and costs associated with responding to the discovery requests and issue
an order that (i) requires the requesting party to prepay the attorneys’ fees and costs associated with responding to the
discovery requests, and (ii) requires the responding party to respond to the discovery requests as limited by the arbitrator within
twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests. If a party entitled to
submit an estimate of attorneys’ fees and costs and/or a challenge to discovery requests fails to do so within such 5-day
period, the arbitrator will make a finding that (A) there are no attorneys’ fees or costs associated with responding to such
discovery requests, and (B) the responding party must respond to such discovery requests (as may be limited by the arbitrator)
within twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests. Any party submitting
any written discovery requests, including without limitation interrogatories, requests for production subpoenas to a party or a
third party, or requests for admissions, must prepay the estimated attorneys’ fees and costs, before the responding party
has any obligation to produce or respond to the same, unless such obligation is deemed waived as set forth above.


 






     


     


    

 


(d) In order to allow
a written discovery request, the arbitrator must find that the discovery request satisfies the standards set forth in these Arbitration
Provisions and the Utah Rules of Civil Procedure. The arbitrator must strictly enforce these standards. If a discovery request
does not satisfy any of the standards set forth in these Arbitration Provisions or the Utah Rules of Civil Procedure, the arbitrator
may modify such discovery request to satisfy the applicable standards, or strike such discovery request in whole or in part.


 


(e) Each party may
submit expert reports (and rebuttals thereto), provided that such reports must be submitted within sixty (60) days of the Arbitration
Commencement Date. Each party will be allowed a maximum of two (2) experts. Expert reports must contain the following: (i) a complete
statement of all opinions the expert will offer at trial and the basis and reasons for them; (ii) the expert’s name and qualifications,
including a list of all the expert’s publications within the preceding ten (10) years, and a list of any other cases in which
the expert has testified at trial or in a deposition or prepared a report within the preceding ten (10) years; and (iii) the compensation
to be paid for the expert’s report and testimony. The parties are entitled to depose any other party’s expert witness
one (1) time for no more than four (4) hours. An expert may not testify in a party’s case-in-chief concerning any matter
not fairly disclosed in the expert report.


 


4.6 Dispositive
Motions. Each party shall have the right to submit dispositive motions pursuant Rule 12 or Rule 56 of the Utah Rules of Civil
Procedure (a “Dispositive Motion”). The party submitting the Dispositive Motion may, but is not required to,
deliver to the arbitrator and to the other party a memorandum in support (the “Memorandum in Support”) of the
Dispositive Motion. Within seven (7) calendar days of delivery of the Memorandum in Support, the other party shall deliver to the
arbitrator and to the other party a memorandum in opposition to the Memorandum in Support (the “Memorandum in Opposition”).
Within seven (7) calendar days of delivery of the Memorandum in Opposition, as applicable, the party that submitted the Memorandum
in Support shall deliver to the arbitrator and to the other party a reply memorandum to the Memorandum in Opposition (“Reply
Memorandum”). If the applicable party shall fail to deliver the Memorandum in Opposition as required above, or if the
other party fails to deliver the Reply Memorandum as required above, then the applicable party shall lose its right to so deliver
the same, and the Dispositive Motion shall proceed regardless.


 


4.7 Confidentiality.
All information disclosed by either party (or such party’s agents) during the Arbitration process (including without limitation
information disclosed during the discovery process or any Appeal (defined below)) shall be considered confidential in nature. Each
party agrees not to disclose any confidential information received from the other party (or its agents) during the Arbitration
process (including without limitation during the discovery process or any Appeal) unless (a) prior to or after the time of disclosure
such information becomes public knowledge or part of the public domain, not as a result of any inaction or action of the receiving
party or its agents, (b) such information is required by a court order, subpoena or similar legal duress to be disclosed if such
receiving party has notified the other party thereof in writing and given it a reasonable opportunity to obtain a protective order
from a court of competent jurisdiction prior to disclosure, or (c) such information is disclosed to the receiving party’s
agents, representatives and legal counsel on a need to know basis who each agree in writing not to disclose such information to
any third party. Pursuant to Section 118(5) of the Arbitration Act, the arbitrator is hereby authorized and directed to issue a
protective order to prevent the disclosure of privileged information and confidential information upon the written request of either
party.


 






     


     


    

 


4.8 Authorization;
Timing; Scheduling Order. Subject to all other portions of these Arbitration Provisions, the parties hereby authorize and direct
the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’ intent for the Arbitration
proceedings to be efficient and expeditious. Pursuant to Section 120 of the Arbitration Act, the parties hereby agree that an Arbitration
Award must be made within one hundred twenty (120) calendar days after the Arbitration Commencement Date. The arbitrator is hereby
authorized and directed to hold a scheduling conference within ten (10) calendar days after the Arbitration Commencement Date in
order to establish a scheduling order with various binding deadlines for discovery, expert testimony, and the submission of documents
by the parties to enable the arbitrator to render a decision prior to the end of such 120-day period.


 


4.9 Relief.
The arbitrator shall have the right to award or include in the Arbitration Award (or in a preliminary ruling) any relief which
the arbitrator deems proper under the circumstances, including, without limitation, specific performance and injunctive relief,
provided that the arbitrator may not award exemplary or punitive damages.


 


4.10 Fees and Costs.
As part of the Arbitration Award, the arbitrator is hereby directed to require the losing party (the party being awarded the least
amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines,
penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration,
and (b) reimburse the prevailing party for all reasonable attorneys’ fees, arbitrator costs and fees, deposition costs, other
discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration.


 


5. Arbitration Appeal.


 


5.1 Initiation
of Appeal. Following the entry of the Arbitration Award, either party (the “Appellant”) shall have a period
of thirty (30) calendar days in which to notify the other party (the “Appellee”), in writing, that the Appellant
elects to appeal (the “Appeal”) the Arbitration Award (such notice, an “Appeal Notice”) to
a panel of arbitrators as provided in Paragraph 5.2 below. The date the Appellant delivers an Appeal Notice to the Appellee is
referred to herein as the “Appeal Date”. The Appeal Notice must be delivered to the Appellee in accordance with
the provisions of Paragraph 4.1 above with respect to delivery of an Arbitration Notice. In addition, together with delivery of
the Appeal Notice to the Appellee, the Appellant must also pay for (and provide proof of such payment to the Appellee together
with delivery of the Appeal Notice) a bond in the amount of 110% of the sum the Appellant owes to the Appellee as a result of the
Arbitration Award the Appellant is appealing. In the event an Appellant delivers an Appeal Notice to the Appellee (together with
proof of payment of the applicable bond) in compliance with the provisions of this Paragraph 5.1, the Appeal will occur as a matter
of right and, except as specifically set forth herein, will not be further conditioned. In the event a party does not deliver an
Appeal Notice (along with proof of payment of the applicable bond) to the other party within the deadline prescribed in this Paragraph
5.1, such party shall lose its right to appeal the Arbitration Award. If no party delivers an Appeal Notice (along with proof of
payment of the applicable bond) to the other party within the deadline described in this Paragraph 5.1, the Arbitration Award shall
be final. The parties acknowledge and agree that any Appeal shall be deemed part of the parties’ agreement to arbitrate for
purposes of these Arbitration Provisions and the Arbitration Act.


 


5.2 Selection and
Payment of Appeal Panel. In the event an Appellant delivers an Appeal Notice to the Appellee (together with proof of payment
of the applicable bond) in compliance with the provisions of Paragraph 5.1 above, the Appeal will be heard by a three (3) person
arbitration panel (the “Appeal Panel”).


 


(a) Within ten (10)
calendar days after the Appeal Date, the Appellee shall select and submit to the Appellant the names of five (5) arbitrators that
are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such five
(5) designated persons hereunder are referred to herein as the “Proposed Appeal Arbitrators”). For the avoidance
of doubt, each Proposed Appeal Arbitrator must be qualified as a “neutral” with Utah ADR Services, and shall not be
the arbitrator who rendered the Arbitration Award being appealed (the “Original Arbitrator”). Within five (5)
calendar days after the Appellee has submitted to the Appellant the names of the Proposed Appeal Arbitrators, the Appellant must
select, by written notice to the Appellee, three (3) of the Proposed Appeal Arbitrators to act as the members of the Appeal Panel.
If the Appellant fails to select three (3) of the Proposed Appeal Arbitrators in writing within such 5-day period, then the Appellee
may select such three (3) arbitrators from the Proposed Appeal Arbitrators by providing written notice of such selection to the
Appellant.


 






     


     


    

 


(b) If the Appellee
fails to submit to the Appellant the names of the Proposed Appeal Arbitrators within ten (10) calendar days after the Appeal Date
pursuant to subparagraph (a) above, then the Appellant may at any time prior to the Appellee so designating the Proposed Appeal
Arbitrators, identify the names of five (5) arbitrators that are designated as “neutrals” or qualified arbitrators
by Utah ADR Service (none of whom may be the Original Arbitrator) by written notice to the Appellee. The Appellee may then, within
five (5) calendar days after the Appellant has submitted notice of its selected arbitrators to the Appellee, select, by written
notice to the Appellant, three (3) of such selected arbitrators to serve on the Appeal Panel. If the Appellee fails to select in
writing within such 5-day period three (3) of the arbitrators selected by the Appellant to serve as the members of the Appeal Panel,
then the Appellant may select the three (3) members of the Appeal Panel from the Appellant’s list of five (5) arbitrators
by providing written notice of such selection to the Appellee.


 


(c) If a selected
Proposed Appeal Arbitrator declines or is otherwise unable to serve, then the party that selected such Proposed Appeal Arbitrator
may select one (1) of the other five (5) designated Proposed Appeal Arbitrators within three (3) calendar days of the date a chosen
Proposed Appeal Arbitrator declines or notifies the parties he or she is unable to serve as an arbitrator. If at least three (3)
of the five (5) designated Proposed Appeal Arbitrators decline or are otherwise unable to serve, then the Proposed Appeal Arbitrator
selection process shall begin again in accordance with this Paragraph 5.2; provided, however, that any Proposed Appeal Arbitrators
who have already agreed to serve shall remain on the Appeal Panel.


 


(d) The date that
all three (3) Proposed Appeal Arbitrators selected pursuant to this Paragraph 5.2 agree in writing (including via email) delivered
to both the Appellant and the Appellee to serve as members of the Appeal Panel hereunder is referred to herein as the “Appeal
Commencement Date”. No later than five (5) calendar days after the Appeal Commencement Date, the Appellee shall designate
in writing (including via email) to the Appellant and the Appeal Panel the name of one (1) of the three (3) members of the Appeal
Panel to serve as the lead arbitrator in the Appeal proceedings. Each member of the Appeal Panel shall be deemed an arbitrator
for purposes of these Arbitration Provisions and the Arbitration Act, provided that, in conducting the Appeal, the Appeal Panel
may only act or make determinations upon the approval or vote of no less than the majority vote of its members, as announced or
communicated by the lead arbitrator on the Appeal Panel. If an arbitrator on the Appeal Panel
ceases or is unable to act during the Appeal proceedings, a replacement arbitrator shall be chosen in accordance with Paragraph
5.2 above to continue the Appeal as a member of the Appeal Panel. If Utah ADR Services ceases to exist or to provide a list
of neutrals, then the arbitrators for the Appeal Panel shall be selected under the then prevailing rules of the American Arbitration
Association.


 


(d) Subject to Paragraph
5.7 below, the cost of the Appeal Panel must be paid entirely by the Appellant.


 


5.3 Appeal Procedure. The Appeal
will be deemed an appeal of the entire Arbitration Award. In conducting the Appeal, the Appeal Panel shall conduct a de novo review
of all Claims described or otherwise set forth in the Arbitration Notice. Subject to the foregoing and all other provisions of
this Paragraph 5, the Appeal Panel shall conduct the Appeal in a manner the Appeal Panel considers appropriate for a fair and expeditious
disposition of the Appeal, may hold one or more hearings and permit oral argument, and may review all previous evidence and discovery,
together with all briefs, pleadings and other documents filed with the Original Arbitrator (as well as any documents filed with
the Appeal Panel pursuant to Paragraph 5.4(a) below). Notwithstanding the foregoing, in connection with the Appeal, the Appeal
Panel shall not permit the parties to conduct any additional discovery or raise any new Claims to be arbitrated, shall not permit
new witnesses or affidavits, and shall not base any of its findings or determinations on the Original Arbitrator’s findings
or the Arbitration Award.


 


5.4 Timing. 


 


(a) Within seven (7)
calendar days of the Appeal Commencement Date, the Appellant (i) shall deliver or cause to be delivered to the Appeal Panel copies
of the Appeal Notice, all discovery conducted in connection with the Arbitration, and all briefs, pleadings and other documents
filed with the Original Arbitrator (which material Appellee shall have the right to review and supplement if necessary), and (ii)
may, but is not required to, deliver to the Appeal Panel and to the Appellee a Memorandum in Support of the Appellant’s arguments
concerning or position with respect to all Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration.
Within seven (7) calendar days of the Appellant’s delivery of the Memorandum in Support, as applicable, the Appellee shall
deliver to the Appeal Panel and to the Appellant a Memorandum in Opposition to the Memorandum in Support. Within seven (7) calendar
days of the Appellee’s delivery of the Memorandum in Opposition, as applicable, the Appellant shall deliver to the Appeal
Panel and to the Appellee a Reply Memorandum to the Memorandum in Opposition. If the Appellant shall fail to substantially comply
with the requirements of clause (i) of this subparagraph (a), the Appellant shall lose its right to appeal the Arbitration Award,
and the Arbitration Award shall be final. If the Appellee shall fail to deliver the Memorandum in Opposition as required above,
or if the Appellant shall fail to deliver the Reply Memorandum as required above, then the Appellee or the Appellant, as the case
may be, shall lose its right to so deliver the same, and the Appeal shall proceed regardless.


 






     


     


    

 


(b) Subject to subparagraph
(a) above, the parties hereby agree that the Appeal must be heard by the Appeal Panel within thirty (30) calendar days of the Appeal
Commencement Date, and that the Appeal Panel must render its decision within thirty (30) calendar days after the Appeal is heard
(and in no event later than sixty (60) calendar days after the Appeal Commencement Date).


 


5.5 Appeal Panel Award. The Appeal
Panel shall issue its decision (the “Appeal Panel Award”) through the lead arbitrator on the Appeal Panel. Notwithstanding
any other provision contained herein, the Appeal Panel Award shall (a) supersede in its entirety and make of no further force or
effect the Arbitration Award (provided that any protective orders issued by the Original Arbitrator shall remain in full force
and effect), (b) be final and binding upon the parties, with no further rights of appeal, (c) be the sole and exclusive remedy
between the parties regarding any Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration, and (d)
be promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Any costs
or fees, including without limitation attorneys’ fees, incurred in connection with or incident to enforcing the Appeal Panel
Award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The Appeal Panel
Award shall include Default Interest (with respect to monetary awards) at the rate specified in the Note for Default Interest both
before and after the Arbitration Award. Judgment upon the Appeal Panel Award will be entered and enforced by a state or federal
court sitting in Salt Lake County, Utah.


 


5.6 Relief. The Appeal Panel shall
have the right to award or include in the Appeal Panel Award any relief which the Appeal Panel deems proper under the circumstances,
including, without limitation, specific performance and injunctive relief, provided that the Appeal Panel may not award exemplary
or punitive damages.


 


5.7 Fees and Costs. As part of the
Appeal Panel Award, the Appeal Panel is hereby directed to require the losing party (the party being awarded the least amount of
money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties,
fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration and the
Appeal Panel, and (b) reimburse the prevailing party (the party being awarded the most amount of money by the Appeal Panel, which,
for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded
to any part) the reasonable attorneys’ fees, arbitrator and Appeal Panel costs and fees, deposition costs, other discovery
costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration
(including without limitation in connection with the Appeal).


 


6. Miscellaneous.


 


6.1 Severability.
If any part of these Arbitration Provisions is found to violate or be illegal under applicable law, then such provision shall
be modified to the minimum extent necessary to make such provision enforceable under applicable law, and the remainder of the Arbitration
Provisions shall remain unaffected and in full force and effect.


 


6.2 Governing Law.
These Arbitration Provisions shall be governed by the laws of the State of Utah without regard to the conflict of laws principles
therein.


 


6.3 Interpretation.
The headings of these Arbitration Provisions are for convenience of reference only and shall not form part of, or affect the interpretation
of, these Arbitration Provisions.


 


6.4 Waiver.
No waiver of any provision of these Arbitration Provisions shall be effective unless it is in the form of a writing signed by the
party granting the waiver.


 


6.5 Time is of
the Essence. Time is expressly made of the essence with respect to each and every provision of these Arbitration Provisions.


 


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