China BAK Battery, Inc.: Exhibit 10.1 - Filed by newsfilecorp.com






SECURITIES PURCHASE AGREEMENT 

This Securities Purchase
Agreement (this “Agreement”) is dated as of ______________, 2016, by and
among China BAK Battery, Inc., a Nevada corporation (the “Company”) and
the investors identified on the signature pages hereto (each, an
“Investor” and collectively, the “Investors”). 

WHEREAS, subject to the terms and
conditions set forth in this Agreement and in reliance upon the applicable
exemptions from securities registration under the Securities Act (as defined
below), the Company desires to issue and sell to each Investor, and each
Investor, severally and not jointly, desires to purchase from the Company
certain securities of the Company, as more fully described in this Agreement,
and 

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

ARTICLE 1. 
DEFINITIONS 

1.1.                  Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1: 

“Action” means any action, suit, inquiry, notice of
  violation, proceeding (including any partial proceeding such as a deposition) or
  investigation pending or threatened in writing against or affecting the Company,
  any Subsidiary or any of their respective properties before or by any court,
  arbitrator, governmental or administrative agency, regulatory authority
  (federal, state, county, local or foreign), stock market, stock exchange or
  trading facility. 

“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a
Person, as such terms are used in and construed under Rule 144. 

“Business
Day” means any day except Saturday, Sunday and any day which is a federal
legal holiday or a day on which banking institutions in the State of New York or
the province of Liaoning in the People’s Republic of China are authorized or
required by law or other governmental action to close. 

“Closing”
means the closing of the purchase and sale of the Shares pursuant to Article 2.


“Closing
Date” means the Business Day on which all of the conditions set forth in
Sections 5.1 and 5.2 hereof are satisfied, or such other date as the parties may
agree. 

“Commission”
means the Securities and Exchange Commission. 




“Common
Stock” means the common stock of the Company, par value $0.001 per share,
and any securities into which such common stock may hereafter be reclassified or
for which it may be exchanged as a class. 

“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“GAAP” means U.S. generally accepted accounting principles. 

“Governmental
Body” shall mean any: (a) nation, state, commonwealth, province, territory,
county, municipality, district or other jurisdiction of any nature; (b) federal,
state, local, municipal, foreign or other government; or (c) governmental or
quasi-governmental authority of any nature (including any governmental or
administrative division, department, agency, commission, instrumentality,
official, organization, unit, body or entity) and any court or other tribunal.


“Investment
Amount” means, with respect to each Investor, the Investment Amount
indicated on such Investor’s signature page to this Agreement. 

“Lien”
means any lien, charge, encumbrance, security interest, right of first refusal,
right of participation or other restrictions of any kind. 

“Material
Adverse Effect” means any of (i) a material and adverse effect on the
legality, validity or enforceability of any Transaction Document, (ii) a
material and adverse effect on the results of operations, assets, prospects,
business or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) an adverse impairment to the Company’s
ability to perform on a timely basis its obligations under any Transaction
Document. 

“New
York Courts” means the state and federal courts sitting in the City of New
York, Borough of Manhattan. 

“Outside
Date” means the thirtieth calendar day (if such calendar day is a Business
Day and if not, then the first Business Day following such thirtieth calendar
day) following the date of this Agreement.

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

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

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

“Securities
Act” means the Securities Act of 1933, as amended. 

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“Shares”
means the shares of Common Stock being offered and sold to the Investors by the
Company hereunder. 

“Short
Sales” include, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act and all types of direct
and indirect stock pledges, forward sale contracts, options, puts, calls, swaps
and similar arrangements (including on a total return basis), and sales and
other transactions through non-US broker dealers or foreign regulated brokers.


“Subsidiary”
means any “significant subsidiary” as defined in Rule 1-02(w) of the Regulation
S-X promulgated by the Commission under the Exchange Act. 

“Trading
Day” means (i) a day on which the Common Stock is traded on a Trading Market
(other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed
on a Trading Market (other than the OTC Bulletin Board), a day on which the
Common Stock is traded in the over-the-counter market, as reported by the OTC
Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading
Market, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day. 

“Trading
Market” means whichever of the New York Stock Exchange, the NYSE MKT LLC,
the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital
Market or OTC Bulletin Board on which the Common Stock is listed or quoted for
trading on the date in question. 

“Transaction
Documents” means this Agreement and any other documents or agreements
executed in connection with the transactions contemplated hereunder. 

ARTICLE 2. 
PURCHASE AND SALE 

2.1.                  Closing. Subject to
the terms and conditions set forth in this Agreement, at the Closing the Company
shall issue and sell to each Investor, and each Investor shall, severally and
not jointly, purchase from the Company, the Shares in the respective amounts set
forth below the Investors’ names on the signature pages hereto for the
Investment Amount. The Closing shall take place at the offices of the Company,
BAK Industrial Park, Meigui Street, Huayuankou Economic Zone, Dalian City,
Liaoning Province, China, 116422, at 10:00 A.M. local time on the Closing Date
or at such other location as the parties may agree. 

2.2.                  Closing Deliveries.

(a)                  At the Closing, the Company shall deliver or cause to be delivered to each
Investor the following (the “Company Deliverables”): 

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(i)
                  a copy of certificate representing the number of Shares purchased by such
Investor set forth on such Investor's signature page attached hereto; and (ii)
this Agreement duly signed by the Company. 

(b)
                  At the Closing, each Investor shall deliver or cause to be delivered the
following (collectively, the “Investors Deliverables”): 

(i)
                  the Investment Amount in immediately available funds, by wire transfer to an
account designated in writing by the Company for such purpose; 

(ii)
                  this Agreement duly signed by such Investor; and 

(iii)
                  the Investor Questionnaire in the form attached as Exhibit A to this
Agreement duly completed by such Investor. 

(c)
                  At or within 10 Business Days following the Closing, the Company shall deliver
or cause to be delivered to each Investor a certificate or certificates
representing that number of Shares to be issued and sold at Closing to such
Investor, determined under this Section 2.2(a)(i), registered in the name of
such Investor. 

ARTICLE 3. 
REPRESENTATIONS AND WARRANTIES 

3.1.
                  Representations and
Warranties of the Company. The Company hereby makes the following
representations and warranties to each Investor as of the date hereof and the
Closing Date: 

(a)
                  Subsidiaries. The Company has no direct or indirect Subsidiaries other
than as specified in the SEC Reports (as defined below). The Company owns,
directly or indirectly, all of the capital stock of each Subsidiary free and
clear of any and all Liens, and all the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights.

(b)
                  Organization and Qualification. The Company and each Subsidiary are duly
incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization (as
applicable), with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted.
Neither the Company nor any Subsidiary is in violation of any of the provisions
of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. The Company and each Subsidiary are duly
qualified to conduct its respective businesses and are in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect. 

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(c)
                  Authorization; Enforcement. The Company has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by
each of the Transaction Documents and otherwise to carry out its obligations
thereunder. The execution and delivery of each of the Transaction Documents by
the Company and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of the Company and
no further action is required by the Company in connection therewith. Each
Transaction Document has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by other equitable principles of general
application. 

(d)
                  No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company and the consummation by the Company of the transactions
contemplated thereby do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents as in effect
on the date hereof, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in
the case of each of clauses (ii) and (iii), such as could not, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect. 

(e)
                  Filings, Consents and Approvals. The Company is not required to obtain
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any United States or People’s Republic of China
court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than (i) filings required by state
securities laws, (ii) if required, the filing with NASDAQ of an applicable
additional shares listing application relating to the Shares issuable hereunder,
(iii) if required, the filing of a Notice of Sale of Securities on Form D with
the Commission under Regulation D of the Securities Act, (iv) the filings
required in accordance with Section 4.4 and (v) those that have been made or
obtained prior to the date of this Agreement.

(f)
                  Issuance of the Shares. The Shares have been duly authorized and, when
issued and paid for in accordance with the Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens.
The Company has reserved from its duly authorized capital stock the shares of
Common Stock issuable pursuant to this Agreement in order to issue the
Shares.

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(g)
                  Capitalization. The number of shares and type of all authorized, issued
and outstanding capital stock of the Company, and all shares of Common Stock
reserved for issuance under the Company’s various option and incentive plans,
all shares of capital stock of the Company issuable and reserved for issuance
pursuant to securities exercisable for, or convertible into or exchangeable for
any shares of capital stock of the Company, is specified in the SEC Reports.
Except as specified in the SEC Reports, no securities of the Company are
entitled to preemptive or similar rights, and no Person has any right of first
refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction Documents.
Except as specified in the SEC Reports, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock. The issue and sale of the Shares
hereunder will not, immediately or with the passage of time, obligate the
Company to issue shares of Common Stock or other securities to any Person (other
than the Investors) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under
such securities. 

(h)
                  SEC Reports; Financial Statements. To the knowledge of the Company, the
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the twelve months preceding the date hereof (or such shorter period as the
Company was required by law to file such reports) (the foregoing materials being
collectively referred to herein as the “SEC Reports”) on a timely basis
or has timely filed a valid extension of such time of filing and has filed any
such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with GAAP applied on a consistent basis during the
periods involved, except as may be otherwise specified in such financial
statements or the notes thereto, and fairly present in all material respects the
financial position of the Company and its consolidated Subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.

(i)
                  Litigation. There is no Action which (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or
the Shares or (ii) except as specifically disclosed in the SEC Reports, could,
if there were an unfavorable decision, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any Subsidiary, nor any director or officer thereof (in his or her
capacity as such), is or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a claim of
breach of fiduciary duty, except as specifically disclosed in the SEC Reports.
There has not been, and to the knowledge of the Company, there is not pending
any investigation by the Commission involving the Company or any current or
former director or officer of the Company (in his or her capacity as such). The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities Act. 

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(j)
                  Compliance. Neither the Company nor any Subsidiary (i) is in default
under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the
Company or any Subsidiary under), nor has the Company or any Subsidiary received
notice of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether or
not such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or Governmental Body, or (iii) is or has been in
violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating
to taxes, environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each case as
could not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.

(k)
                  Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure
to possess such permits could not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect, and neither the
Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such permits. 

(l)
                  Title to Assets. The Company and the Subsidiaries have valid land use
rights for all real property owned by them that is material to their respective
businesses and good and marketable title in all personal property owned by them
that is material to their respective businesses, in each case free and clear of
all Liens, except for Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Company and the Subsidiaries. Any real property and
facilities held under lease by the Company and the Subsidiaries are held by them
under valid, subsisting and enforceable leases of which the Company and the
Subsidiaries are in compliance, except as could not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect. 

(m)
                  Material Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
the SEC Reports, (i) there has been no event, occurrence or development that has
had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) neither the Company nor any Subsidiary has incurred any material
liabilities (direct, indirect, contingent, or otherwise) other than those
incurred in the ordinary course of business consistent with past practice, (iii)
the Company has not altered its method of accounting or the identity of its
auditors, (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock, (v) neither
the Company nor any Subsidiary has waived any material right or material debt
owed to it, (vi) neither the Company nor any Subsidiary has changed or amended
its certificate or articles of incorporation, bylaws or other organizational or
charter documents, or change any material contract or arrangement by which the
Company or Subsidiary is bound or to which its assets or properties is subject,
and (vii) the Company has not issued any equity securities to any officer,
director, consultant or Affiliate of the Company or any of its Subsidiaries,
except pursuant to existing Company stock option plans or stock option
agreements as disclosed in the Company’s SEC Reports. The Company does not have
pending before the Commission any request for confidential treatment of
information. 

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(n)
                  Patents and Trademarks. The Company and its Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights as described
in the SEC Reports as necessary or material for use in connection with their
respective businesses and which the failure to so have could have a Material
Adverse Effect (collectively, the "Intellectual Property Rights").
Neither the Company nor any Subsidiary has received notice (written or
otherwise) that any of the Intellectual Property Rights used by the Company or
any Subsidiary violates or infringes upon the rights of any Person. To the
knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value
of all of their intellectual properties, except where failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. 

(o)
                  Internal Accounting Controls. The Company is in material compliance with
the provisions of the Sarbanes-Oxley Act of 2002 currently applicable to the
Company. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosure controls and procedures to ensure that material information relating
to the Company, including its Subsidiaries, is made known to the certifying
officers by others within those entities, particularly during the period in
which the Company’s Form 10-K or 10-Q, as the case may be, is being prepared.
The Company’s certifying officers have evaluated the effectiveness of the
Company’s controls and procedures in accordance with Item 307 of Regulation S-K
under the Exchange Act for the Company’s most recently ended fiscal quarter or
fiscal year-end (such date, the “Evaluation Date”). The Company presented
in its most recently filed Form 10-K or Form 10-Q the conclusions of the
certifying officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the Evaluation Date. Since the
Evaluation Date, there have been no significant changes in the Company’s
internal controls (as such term is defined in Item 308(c) of Regulation S-K
under the Exchange Act) or, to the Company’s knowledge, in other factors that
could significantly affect the Company’s internal controls. The books, records
and accounts of the Company accurately and fairly reflect the transactions in,
and dispositions of, the assets of, and the results of operations of, the
Company. The Company maintains and will continue to maintain a standard system
of accounting established and administered in accordance with GAAP and the
applicable requirements of the Exchange Act. 

8 




(p)
                  Tax Status. Except for matters that would not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Company and each Subsidiary have filed all necessary federal, state
and foreign income and franchise tax returns and have paid or accrued all taxes
shown as due thereon, and to the knowledge of the Company, the Company has no
tax deficiency which has been asserted or threatened against the Company or any
Subsidiary. 

(q)
                  Solvency. Based on the financial condition of the Company as of the
Closing Date (and assuming that the Closing shall have occurred), (i) the
Company’s fair saleable value of its assets exceeds the amount that will be
required to be paid on or in respect of the Company’s existing debts and other
liabilities (including known contingent liabilities) as they mature, (ii) the
Company’s assets do not constitute unreasonably small capital to carry on its
business for the current fiscal year as now conducted and as proposed to be
conducted including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, and projected capital
requirements and capital availability thereof, and (iii) the current cash flow
of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its debt
when such amounts are required to be paid. The Company does not intend to incur
debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt). 

(r)
                  Certain Fees. No brokerage or finder's fees or commissions are or will be
payable by the Company to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with respect to the
transactions contemplated by this Agreement. The Investors shall have no
obligation with respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this Section 3.1(r)
that may be due in connection with the transactions contemplated by the
Transaction Documents. 

(s)
                  Private Placement. Assuming the accuracy of the Investors' representations and
warranties set forth in Section 3.2, no registration under the Securities Act is
required for the offer and sale of the Shares by the Company to the Investors as
contemplated hereby. The issuance and sale of the Shares hereunder do not
contravene the rules and regulations of the Trading Market. 

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

9 




(u)
                  No General Solicitation. Neither the Company nor any Person acting on
behalf of the Company has offered or sold any of the Shares by any form of
general solicitation or general advertising.

(v)
                  Listing and Maintenance Requirements. The Common Stock is registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no
action designed to, or which to the knowledge of the Company is likely to have
the effect of, terminating the registration of the Common Stock under the
Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. Except as specifically disclosed
in the SEC Reports, the Company has not, in the 12 months preceding the date
hereof, received notice from any Trading Market on which the Common Stock is or
has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The Company
is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance
requirements. 

(w)
                  Application of Takeover Protections. The Company and the Board of
Directors have taken all necessary action in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under the Company's articles of incorporation or the laws of its state of
incorporation that is or could become applicable to the Investors as a result of
the Investors and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including without limitation as a result
of the Company's issuance of the Shares and the Investors' ownership of the
Shares. 

(x)
                  No Integrated Offering. Assuming the accuracy of the Investors'
representations and warranties set forth in Section 3.2, neither the Company,
nor any of its Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would cause this
offering of the Shares to be integrated with prior offerings by the Company for
purposes of (i) the Securities Act which would require the registration of any
such securities under the Securities Act, or (ii) any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the
Company are listed or designated.

(y)
                  No Additional Agreements. The Company does not have any agreement or
understanding with any Investor with respect to the transactions contemplated by
the Transaction Documents other than as specified in the Transaction Documents.


(z)
                  Disclosure. The Company confirms that neither it nor any Person acting on
its behalf has provided any Investor or its respective agents or counsel with
any information that the Company believes constitutes material, non-public
information concerning the Company, the Subsidiaries or their respective
businesses, except insofar as the existence and terms of the proposed
transactions contemplated hereunder may constitute such information. The Company
understands and confirms that the Investors will rely on the foregoing
representations and covenants in effecting transactions in securities of the
Company. Except as specified below, all disclosure provided to the Investors
regarding the Company, the Subsidiaries or their respective businesses and the
transactions contemplated hereby, furnished by or on behalf of the Company
(including the Company’s representations and warranties set forth in this
Agreement) are true and correct and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.

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Each Investor acknowledges and agrees that the Company has not
made nor makes any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in this
Section 3.1. 

3.2.
                  Representations and
Warranties of the Investors. Each Investor hereby, severally and not
jointly, represents and warrants to the Company as of the date hereof and the
Closing Date: 

(a)
                  Organization; Authority. If the Investor is a business entity, such
Investor is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the requisite
corporate or partnership power and authority to enter into and to consummate the
transactions contemplated by the applicable Transaction Documents and otherwise
to carry out its obligations thereunder. The execution, delivery and performance
by such Investor of the transactions contemplated by this Agreement has been
duly authorized by all necessary corporate or, if such Investor is not a
corporation, such partnership, limited liability company or other applicable
like action, on the part of such Investor. This Agreement has been duly executed
by such Investor, and when delivered by such Investor in accordance with the
terms hereof, will constitute the valid and legally binding obligation of such
Investor, enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application. 

(b)
                  Investment Intent. Such Investor is acquiring the Shares as principal for
its own account for investment purposes only and not with a view to or for
distributing or reselling such Shares or any part thereof, without prejudice,
however, to such Investor’s right at all times to sell or otherwise dispose of
all or any part of such Shares in compliance with applicable federal and state
securities laws. Subject to the immediately preceding sentence, nothing
contained herein shall be deemed a representation or warranty by such Investor
to hold the Shares for any period of time. Such Investor is acquiring the Shares
hereunder in the ordinary course of its business. Such Investor does not have
any agreement or understanding, directly or indirectly, with any Person to
distribute any of the Shares. 

(c)
                  Investor Status. Such Investor is not a registered broker-dealer under
Section 15 of the Exchange Act. Such Investor has such experience in business
and financial matters that it is capable of evaluating the merits and risks of
an investment in the Shares. Such Investor acknowledges that an investment in
the Shares is speculative and involves a high degree of risk. If such Investor
is a U.S. Person (as such term is defined in Rule 902(k) of Regulation S), at
the time such Investor was offered the Shares, it was, and at the date hereof it
is, an “accredited investor” as defined in Rule 501(a) under the Securities Act,
and such Investor has completed and executed the Investor Questionnaire attached
as Exhibit A to this Agreement.

11 




(d)
                  Regulation S. If such Investor is not a U.S. Person, such Investor (i)
acknowledges that the certificate(s) representing or evidencing the Shares
contain a customary restrictive legend restricting the offer, sale or transfer
of any Shares except in accordance with the provisions of Regulation S, pursuant
to registration under the Securities Act, or pursuant to an available exemption
from registration, (ii) agrees that all offers and sales by such Investor of
Shares shall be made pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from, or a transaction not subject to
the registration requirements of, the Securities Act, (iii) represents that the
offer to purchase the Shares was made to such Investor outside of the United
States, and such Investor was, at the time of the offer and will be, at the time
of the sale and is now, outside the United States, (iv) has not engaged in or
directed any unsolicited offers to purchase Shares in the United States, (v) is
neither a U.S. Person nor a Distributor (as such terms are defined in Rule
902(k) and 902(d), respectively, of Regulation S), (vi) has purchased the Shares
for its own account and not for the account or benefit of any U.S. Person, (vii)
is the sole beneficial owner of the Shares specified on signature pages hereto
opposite his name and has not pre-arranged any sale with an Investor in the
United States, and (ix) is familiar with and understands the terms and
conditions and requirements contained in Regulation S, specifically, without
limitation, each Investor understands that the statutory basis for the exemption
claimed for the sale of the Shares would not be present if the sale, although in
technical compliance with Regulation S, is part of a plan or scheme to evade the
registration provisions of the Securities Act.

(e)
                  Access to Information. Such Investor acknowledges that it has reviewed
the SEC Reports and has been afforded (i) the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of
the Company concerning the terms and conditions of the offering of the Shares
and the merits and risks of investing in the Shares; (ii) access to information
about the Company and the Subsidiaries and their respective financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of such Investor or its representatives
or counsel shall modify, amend or affect such Investor’s right to rely on the
truth, accuracy and completeness of the SEC Reports and the Company’s
representations and warranties contained in the Transaction Documents. Such
Investor also acknowledges that the Company may possess material non-public
information not known to such Investor regarding or relating to the Company or
the Shares, and such Investor acknowledges that it has not requested such
information and agrees that the Company shall have no liability whatsoever (and
such Investor hereby waives and releases all claims which it would otherwise
have) with respect to the non-disclosure of such information either prior to the
date hereof or subsequent hereto.

(f)
                  Certain Trading Activities. Such Investor has not directly or indirectly,
nor has any Person acting on behalf of or pursuant to any understanding with
such Investor, engaged in any transactions in the securities of the Company
(including, without limitations, any Short Sales involving the Company’s
securities) since the earlier to occur of (1) the time that such Investor was
first contacted by the Company regarding an investment in the Company and (2)
the 30th day prior to the date of this Agreement. Such Investor
covenants that neither it nor any Person acting on its behalf or pursuant to any
understanding with it will engage in any transactions in the securities of the
Company (including Short Sales) prior to the time that the transactions
contemplated by this Agreement are publicly disclosed. 

12 




(g)
                  Independent Investment Decision. Such Investor has independently
evaluated the merits of its decision to purchase the Shares pursuant to the
Transaction Documents, and such Investor confirms that it has not relied on the
advice of any other Investor’s business and/or legal counsel in making such
decision.

(h)
                  Rule 144. Such Investor understands that the Shares must be held
indefinitely unless such Shares are registered under the Securities Act or an
exemption from registration is available. Such Investor acknowledges that it is
familiar with Rule 144 and that such Investor has been advised that Rule 144
permits resales only under certain circumstances. Such Investor understands that
to the extent that Rule 144 is not available, such Investor will be unable to
sell any Shares without either registration under the Securities Act or the
existence of another exemption from such registration requirement. 

(i)
                  General. Such Investor understands that the Shares are being offered and
sold in reliance on a transactional exemption from the registration requirements
of federal and state securities laws and the Company is relying upon the truth
and accuracy of the representations, warranties, agreements, acknowledgments and
understandings of such Investor set forth herein in order to determine the
applicability of such exemptions and the suitability of such Investor to acquire
the Shares. Such Investor understands that no United States federal or state
agency or any Governmental Body has passed upon or made any recommendation or
endorsement of the Shares. 

The Company acknowledges and agrees that no Investor has made
or makes any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Agreement.


ARTICLE 4. 
OTHER AGREEMENTS OF THE PARTIES


4.1.
                  a)
                  Shares may only be
disposed of in compliance with state and federal securities laws. In connection
with any transfer of the Shares other than pursuant to an effective registration
statement, to the Company, to an Affiliate of an Investor or in connection with
a pledge as contemplated in Section 4.1(b), the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Shares under the Securities Act. 

(b)
                  Certificates evidencing the
Shares will contain the following legend, until such time as they are not
required under Section 4.1(c): 


	
      THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
      SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
      SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT
      PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
      OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
      SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
      ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
      OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF
      WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY
      BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH
      SECURITIES.  




13 




The
Company acknowledges and agrees that an Investor may from time to time pledge,
and/or grant a security interest in some or all of the Shares pursuant to a bona
fide margin agreement in connection with a bona fide margin account and, if
required under the terms of such agreement or account, such Investor may
transfer pledged or secured Shares to the pledgees or secured parties. Such a
pledge or transfer would not be subject to approval or consent of the Company
and no legal opinion of legal counsel to the pledgee, secured party or pledgor
shall be required in connection with the pledge, but such legal opinion may be
required in connection with a subsequent transfer following default by the
Investor transferee of the pledge. No notice shall be required of such pledge.
At the appropriate Investor’s expense, the Company will execute and deliver such
reasonable documentation as a pledgee or secured party of Shares may reasonably
request in connection with a pledge or transfer of the Shares including the
preparation and filing of any required prospectus supplement under Rule
424(b)(3) of the Securities Act or other applicable provision of the Securities
Act to appropriately amend the list of selling stockholders thereunder. Except
as otherwise provided in Section 4.1(c), any Shares subject to a pledge or
security interest as contemplated by this Section 4.1(b) shall continue to bear
the legend set forth in this Section 4.1(b) and be subject to the restrictions
on transfer set forth in Section 4.1(a) . 

(c)
                  Certificates evidencing Shares shall not contain any legend (including the
legend set forth in Section 4.1(b)): (i) while a registration statement covering
such Shares is then effective, or (ii) following a sale or transfer of such
Shares pursuant to Rule 144 (assuming the transferee is not an Affiliate of the
Company), or (iii) while such Shares are eligible for sale by the selling
Investor without volume restrictions under Rule 144. The Company agrees that
following the effective date of such registration statement or such other time
as legends are no longer required to be set forth on certificates representing
Shares under this Section 4.1(c), it will, no longer than ten Trading Days
following the delivery by an Investor to the Company or the Company’s transfer
agent of a certificate representing such Shares containing a restrictive legend,
deliver or instruct the Company’s transfer agent to deliver to such Investor,
Shares which are free of all restrictive and other legends. If the Company is
then eligible, certificates for Shares subject to legend removal hereunder shall
be transmitted by the Company’s transfer agent to an Investor by crediting the
prime brokerage account of such Investor with the Depository Trust Company
System as directed by such Investor. If an Investor shall make a sale or
transfer of Shares either (x) pursuant to Rule 144 or (y) pursuant to a
registration statement and in each case shall have delivered to the Company or
the Company’s transfer agent the certificate representing the applicable Shares
containing a restrictive legend which are the subject of such sale or transfer
and a representation letter in customary form (the date of such sale or transfer
and Shares delivery being the “Share Delivery Date”) and (1) the Company
shall fail to deliver or cause to be delivered to such Investor a certificate
representing such Shares that is free from all restrictive or other legends by
the tenth Trading Day following the Share Delivery Date and (2) following such
tenth Trading Day after the Share Delivery Date and prior to the time such
Shares are received free from restrictive legends, the Investor, or any third
party on behalf of such Investor, purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Investor of such Shares (a “Buy-In”), then, in addition to any other
rights available to the Investor under the Transaction Documents and Legal
Requirements, the Company shall pay in cash to the Investor (for costs incurred
either directly by such Investor or on behalf of a third party) the amount by
which the total purchase price paid for Common Stock as a result of the Buy-In
(including brokerage commissions, if any) exceed the proceeds received by such
Investor as a result of the sale to which such Buy-In relates. The Investor
shall provide the Company written notice indicating the amounts payable to the
Investor in respect of the Buy-In.

14 




4.2.
                  Furnishing of
Information. As long as any Investor or any transferee owns any Shares, the
Company covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act. As long as any
Investor owns Shares, if the Company is not required to file reports pursuant to
such laws, it will prepare and furnish to the Investors and make publicly
available in accordance with Rule 144(c) such information as is required for the
Investors to sell the Shares under Rule 144. The Company further covenants that
it will take such further action as any holder of Shares may reasonably request,
all to the extent required from time to time to enable such Person to sell the
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144. 

4.3.
                  Integration. The
Company shall not, and shall use its best efforts to ensure that no Affiliate of
the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Shares in a manner
that would require the registration under the Securities Act of the sale of the
Shares to the Investors, or that would be integrated with the offer or sale of
the Shares for purposes of the rules and regulations of any Trading Market in a
manner that would require stockholder approval of the sale of the Shares to the
Investors. 

4.4.
                  Securities Laws
Disclosure; Publicity. By 5:30 p.m. (New York time) on the fourth Trading
Day following the Closing Date, the Company will file a Current Report on Form
8-K, disclosing the material terms of the Transaction Documents (and attach as
exhibits thereto all existing Transaction Documents) and the Closing. The
Company covenants that following such disclosure, the Investors shall no longer
be in possession of any material, non-public information with respect to the
Company or any Subsidiary. In addition, the Company will make such other filings
and notices in the manner and time required by the Commission and the Trading
Market on which the Common Stock may be listed. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of any Investor, or include the
name of any Investor in any filing with the Commission (other than a resale
registration statement to register the Shares and any exhibits to filings made
in respect of this transaction in accordance with periodic filing requirements
under the Exchange Act) or any regulatory agency or Trading Market upon which
the Common Stock may be listed, without the prior written consent of such
Investor, except to the extent such disclosure is required by law or applicable
Trading Market regulations.

4.5.
                  Indemnification of
Investors. The Company will indemnify and hold the Investors and their
directors, officers, shareholders, partners, members, affiliates, employees and
agents (each, an “Investor Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation in respect thereof (collectively,
“Losses”) that any such Investor Party may suffer or incur as a result of
or relating to any misrepresentation, breach or inaccuracy of any
representation, warranty, covenant or agreement made by any of the Company in
any Transaction Document. In addition to the indemnity contained herein, the
Company will reimburse each Investor Party for its reasonable legal and other
expenses (including the cost of any investigation, preparation and travel in
connection therewith) incurred in connection therewith, as such expenses are
incurred.

15 




4.6.
                  Non-Public
Information. The Company covenants and agrees that neither it nor any other
Person acting on its behalf will provide any Investor or its agents or counsel
with any information that the Company believes constitutes material non-public
information, unless prior thereto such Investor shall have executed a written
agreement regarding the confidentiality and use of such information. The Company
understands and confirms that each Investor shall be relying on the foregoing
representations in effecting transactions in securities of the Company. 

4.7.
                  Listing of
Securities. The Company agrees that it will take all action reasonably
necessary to continue the listing and trading of its Common Stock on a Trading
Market and will comply in all material respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of the Trading Market.


ARTICLE 5. 
CONDITIONS PRECEDENT TO CLOSING


5.1.
                  Conditions Precedent to
the Obligations of the Investors to Purchase Shares. The obligation of each
Investor to acquire Shares at the Closing is subject to the satisfaction or
waiver by such Investor, at or before the Closing, of each of the following
conditions: 

(a)
                  Representations and Warranties. The representations and warranties of the
Company contained herein shall be true and correct in all material respects as
of the date when made and as of the Closing as though made on and as of such
date; 

(b)
                  Performance. The Company shall have performed, satisfied and complied in
all material respects with all covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by it at
or prior to the Closing; 

(c)
                  No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of any of the transactions contemplated by the Transaction
Documents; 

(d)
                  No Suspensions of Trading in Common Stock; Listing. Trading in the Common
Stock shall not have been suspended by the Commission, any Trading Market or any
governmental or regulatory body (except for any suspensions of trading of not
more than one Trading Day solely to permit dissemination of material information
regarding the Company) at any time since the date of execution of this
Agreement, the Common Stock shall have been at all times since such date listed
for trading on a Trading Market, and the Company shall not have received notice
of any delisting or removal from trading on any Trading Market or that it is in
violation of any rule, regulation or interpretation of any Trading Market that
could lead to delisting or removal from trading; 

16 




(e)
                  Adverse Changes. Since the date of execution of this Agreement, no event
or series of events shall have occurred that reasonably could have or result in
a Material Adverse Effect or a material adverse change with respect to the
Subsidiaries; 

(f)
                  Company Deliverables. The Company shall have delivered the Company
Deliverables in accordance with Section 2.2(a); and 

(g)
                  Termination. This Agreement shall not have been terminated as to such
Investor in accordance with Section 6.5. 

5.2.
                  Conditions Precedent to
the Obligations of the Company to Sell Shares. The obligation of the Company
to sell and issue Shares at the Closing is subject to the satisfaction or waiver
by the Company, at or before the Closing, of each of the following conditions:


(a)
                  Representations and Warranties. The representations and warranties of
each Investor contained herein shall be true and correct in all material
respects as of the date when made and as of the Closing Date as though made on
and as of such date; 

(b)
                  Performance. Each Investor shall have performed, satisfied and complied
in all material respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by such
Investor at or prior to the Closing; 

(c)
                  No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of any of the transactions contemplated by the Transaction
Documents; 

(d)
                  Investors Deliverables. Each Investor shall have delivered its Investors
Deliverables in accordance with Section 2.2(b); and 

(e)
                  Termination. This Agreement shall not have been terminated as to such
Investor in accordance with Section 6.5. 

ARTICLE 6. 
MISCELLANEOUS 

6.1.
                  Fees and Expenses.
Each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of
the Transaction Documents. The Company shall pay all stamp and other taxes and
duties levied in connection with the sale of the Shares. 

17 




6.2.
                  Entire Agreement. The
Transaction Documents, together with the Exhibits thereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements, understandings, discussions and representations,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules. 

6.3.
                  Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via (i) facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number specified in
this Section or (ii) electronic mail (i.e., Email) prior to 6:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via (i) facsimile at
the facsimile number specified in this Section or (ii) electronic mail (i.e.,
Email) on a day that is not a Trading Day or later than 6:30 p.m. (New York City
time) on any Trading Day, or (c) the Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service, or (d) upon
actual receipt by the party to whom such notice is required to be given, if sent
by any means other than facsimile or Email transmission. The address for such
notices and communications shall be as follows: 

	 	If to the Company: 	China BAK Battery, Inc. 
	 	  	BAK Industrial Park, Meigui Street, 
	 	 	
      Huayuankou Economic Zone,  

	 	  	Dalian City, Liaoning Province, China, 116422
    
	 		
       Attn.: Chief Executive
Officer  

	 	 	
      Facsimile: (86) 411-39185980  

	 	  	E-mail: IR@cbak.com.cn 
	 	  	  
	 	With a copy to: 	Pillsbury Winthrop Shaw Pittman LLP 
	 	  	2550 Hanover Street 
	 	  	Palo Alto, CA 94304 
	 	  	Facsimile: 650.233.4545 
	 	  	Attention: Thomas M. Shoesmith, Esq. 
	 	  	E-Mail: tom.shoesmith@pillsburylaw.com
    
	 	  	  
	 	If to an Investor: 	To the address set forth under such Investor’s
      name on the 
	 	  	signature pages hereof; 


or such other address as may be designated in writing
hereafter, in the same manner, by such Person. 

6.4.
                  Amendments; Waivers; No
Additional Consideration. No provision of this Agreement may be waived or
amended except in a written instrument signed by the Company and the Investors
holding a majority of the Shares. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right. No consideration shall be offered or paid
to any Investor to amend or consent to a waiver or modification of any provision
of any Transaction Document unless the same consideration is also offered to all
Investors who then hold Shares. 

18 




6.5.                  Termination. This Agreement may be terminated prior
to Closing: 

(a)                  by written agreement of the Investors and the Company; and 

(b)                  by either the Company or an Investor (as to itself but no other Investor) upon
written notice to the other, if the Closing shall not have taken place by 6:30
p.m. Eastern time on the Outside Date; provided, that the right to
terminate this Agreement under this Section 6.5(b) shall not be available to any
Person whose failure to comply with its obligations under this Agreement has
been the cause of or resulted in the failure of the Closing to occur on or
before such time. 

In the event of a termination
pursuant to this Section, the Company shall promptly notify all non-terminating
Investors. Upon a termination in accordance with this Section 6.5, the Company
and terminating Investor(s) shall not have any further obligation or liability
(including as arising from such termination) to the other and no Investor will
have any liability to any other Investor under the Transaction Documents as a
result therefrom. 

6.6.                  Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. 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. This Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any of the Transaction Documents. 

6.7.                  Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and permitted assigns. The Company may not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the Investors. Any Investor may assign any or all of its
rights under this Agreement to any Person to whom such Investor assigns or
transfers any Shares, provided such transferee agrees in writing to be bound,
with respect to the transferred Shares, by the provisions hereof that apply to
the “Investors.” 6.8. No Third-Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in
Section 4.5.

6.9.                  Governing Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether
brought against a party hereto or its respective Affiliates, employees or
agents) shall be commenced exclusively in the New York Courts. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the New York Courts
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of the any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any Proceeding, any claim that
it is not personally subject to the jurisdiction of any such New York Court, or
that such Proceeding has been commenced in an improper or inconvenient forum.
Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
Each party hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. If either party shall commence a Proceeding to enforce any provisions of
a Transaction Document, then the prevailing party in such Proceeding shall be
reimbursed by the other party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such Proceeding. 

19 




6.10.                  Survival. The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares, until the second anniversary
of the date hereof. 

6.11.                  Execution. This
Agreement may be executed and delivered (including by facsimile transmission and
electronic mail attaching a portable document file (.pdf)) in one or more
counterparts and all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or electronic mail attachment, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or electronic mail attached signature page were an original
thereof. 

6.12.                  Severability. If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement. 

6.13.                  Rescission and
Withdrawal Right. Notwithstanding anything to the contrary contained in (and
without limiting any similar provisions of) the Transaction Documents, whenever
any Investor exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within
the periods therein provided, then such Investor may rescind or withdraw, in its
sole discretion from time to time upon written notice to the Company, any
relevant notice, demand or election in whole or in part without prejudice to its
future actions and rights. 

20 




6.14.                  Replacement of
Shares. If any certificate or instrument evidencing any Shares is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation thereof, or in lieu of and
substitution therefor, a new certificate or instrument, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested. The applicants
for a new certificate or instrument under such circumstances shall also pay any
reasonable third-party costs associated with the issuance of such replacement
Shares. If a replacement certificate or instrument evidencing any Shares is
requested due to a mutilation thereof, the Company may require delivery of such
mutilated certificate or instrument as a condition precedent to any issuance of
a replacement. 

6.15.                  Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Investors and the Company will
be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be adequate. 

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

6.17.                  Independent Nature of
Investors’ Obligations and Rights. The obligations of each Investor under
any Transaction Document are several and not joint with the obligations of any
other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Transaction
Document. The decision of each Investor to purchase Shares pursuant to the
Transaction Documents has been made by such Investor independently of any other
Investor. Nothing contained herein or in any Transaction Document, and no action
taken by any Investor pursuant thereto, shall be deemed to constitute the
Investors as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Investors are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. Each Investor acknowledges that no
other Investor has acted as agent for such Investor in connection with making
its investment hereunder and that no Investor will be acting as agent of such
Investor in connection with monitoring its investment in the Shares or enforcing
its rights under the Transaction Documents. Each Investor shall be entitled to
independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Investor to be joined as an
additional party in any Proceeding for such purpose. The Company acknowledges
that each of the Investors has been provided with the same Transaction Documents
for the purpose of closing a transaction with multiple Investors and not because
it was required or requested to do so by any Investor. 

21 




6.18.                  Limitation of
Liability. Notwithstanding anything herein to the contrary, the Company
acknowledges and agrees that the liability of an Investor arising directly or
indirectly, under any Transaction Document of any and every nature whatsoever
shall be satisfied solely out of the assets of such Investor, and that no
trustee, officer, other investment vehicle or any other Affiliate of such
Investor or any investor, shareholder or holder of shares of beneficial interest
of such a Investor shall be personally liable for any liabilities of such
Investor. 

6.19.                  Further Assurances.
The parties shall execute and deliver all such further instruments and documents
and take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 
SIGNATURE PAGES
FOLLOW]

22 




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


	 	CHINA BAK BATTERY, INC. 
	 	  
	 	  
	 	  
	 	  
	 	By:  ______________________
	 	   Name: Yunfei Li 
	 	   Title: Chief Executive Officer
  


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 
SIGNATURE PAGE
FOR INVESTORS FOLLOWS] 




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

	 	NAME OF INVESTOR 
	 	 
	 	_________________________________________________
	 	 
	 	By:
      ______________________________________________
	 	         Name: 
	 	         Title: 
	 	 
	 	Investment Amount: $ 
      _______________________________
	 	 
	 	Number of Shares:
      ___________________________________
	 	 
	 	Tax ID No.:
      ________________________________________
	 	 
	 	ADDRESS FOR NOTICE 
	 	 
	 	c/o: 
      ______________________________________________
	 	 
	 	Street:
      _____________________________________________
	 	 
	 	City/State/Country/Zip:
      ________________________________
	 	 
	 	Attention: 
      __________________________________________
	 	 
	 	Tel: 
      _______________________________________________
	 	 
	 	Fax: 
      _______________________________________________
	 	 
	 	DELIVERY INSTRUCTIONS 
	 	
          (if different from above) 

	 	 
	 	c/o:
      ________________________________________________
	 	 
	 	Street:
      ______________________________________________
	 	 
	 	City/State/Country/Zip:
      _________________________________
	 	 
	 	Attention:
      ___________________________________________
	 	 
	 	Tel:
      ________________________________________________






EXHIBIT A 
INVESTOR QUESTIONNAIRE 

Non-U.S. Persons: 

	(A) 	______I hereby represent and warrant that I AM
      NOT a U.S. domestic Person. 
	  	  
	U.S. Persons: 	  
	(B) 	______I hereby represent and warrant that I AM
      a U.S. domestic Person. (Please also indicate below which category of
      Accredited Investor is applicable) 


[To be completed below ONLY IF you ARE a U.S. Person]


INDIVIDUAL INVESTORS: 

		 	I am a natural person whose individual net
      worth, or joint net worth with my spouse, presently exceeds $1,000,000
      (excluding the value of my primary residence).1 
	 	 	  
		 	I am a natural person who had an individual
      income in excess of $200,000 in each of the two most recent years or joint
      income with my spouse in excess of $300,000 in each of those years, and I
      reasonably expect reaching the same income level in the current year.
  


CORPORATIONS, PARTNERSHIPS, LIMITED LIABILITY COMPANIES,
BUSINESS TRUSTS OR OTHER ENTITIES: 

			
      I am a corporation, partnership, limited liability
      company or other entity in which all of the equity owners are “accredited
      investors” (meeting at least one of the suitability requirements for
      individual investors above). 

	 	 	
      

			
      I am a corporation, partnership, limited liability
      company or “Massachusetts” or similar business trust with total assets in
      excess of $5,000,000 and was not formed for the specific purpose of
      acquiring the Securities, the executive officer, manager or trustee of
      which has such knowledge and experience in oil and gas investing and/or
      financial and business matters that it is capable of evaluating the merits
      and risks of investing in the Securities. 



GRANTOR OR FAMILY TRUSTS (NOTE: Please enclose a copy of
the trust agreement): 

	 	 	I am a revocable or family trust the settlor(s)
      or grantor(s) of which (i) may revoke the trust at any time and regain
      title to the trust assets and (ii) meet(s) at least one of the suitability
      requirements for individual investors above. 


INDIVIDUAL RETIREMENT ACCOUNTS (to be initialed by
participant, not the IRA custodian): 

____________________________

	1 	
      In calculating net worth, include all of your assets
      (other than your primary residence) whether liquid or illiquid, such as
      cash, stock, securities, personal property and real estate based on the
      fair market value of such property, MINUS your debts and liabilities. A
      mortgage or other indebtedness secured by your primary residence should
      not be included in the liabilities used to calculate net worth except to
      the extent such indebtedness exceeds the value of the
  residence.








	 	 	I am an individual retirement account
      administered in accordance with the U.S. Tax Code the participant of which
      meets at least one of the suitability requirements for individual
      investors above. 


OTHER: 

	 	 	I am a director or executive officer of the
      Company. 
	 	 	 
	 	 	I otherwise qualify as an “accredited investor”
      for the following reason(s): 


BY EXECUTING BELOW, I REPRESENT AND WARRANT THAT THE
INFORMATION CONTAINED IN THIS QUESTIONNAIRE IS TRUE, ACCURATE AND
COMPLETE. 

	 	NAME OF INVESTOR 
	 	 
	 	____________________________________________________
	 	 
	 	By: 
      _________________________________________________
	 	         Name: 
	 	         Title: