Securities
Purchase Agreement


 


This
Securities Purchase Agreement (this “Agreement”),
dated as of May 29, 2019, is entered into by and between KinerjaPay Corp., a Delaware
corporation (“Company”), and Iliad Research and Trading, L.P.,
a Utah limited partnership, 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 Convertible Promissory Note, in the form attached hereto as Exhibit A, in the original principal amount of $115,000.00
(the “Note”), convertible into shares of common stock, $0.0001 par value per share, of Company (the “Common
Stock”), upon the terms and subject to the limitations and conditions set forth in such 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”.


 


D.
For purposes of this Agreement: “Conversion Shares” means all shares of Common Stock issuable upon conversion
of all or any portion of the Note; and “Securities” means the Note and the Conversion Shares.


 


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 Securities.


 


1.1.
Purchase of Securities. 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 May
29, 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 $10,000.00 (the “OID”).
In addition, Company agrees to pay $5,000.00 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 Securities (the “Transaction
Expense Amount”), all of which amount is included in the initial principal balance of the Note. The “Purchase
Price”, therefore, shall be $100,000.00, computed as follows: $115,000.00 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) this Agreement has been duly and validly authorized; (ii) this Agreement constitutes a valid and binding agreement of Investor
enforceable in accordance with its terms; and (iii) Investor is an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D of the 1933 Act.


 


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 under
Section 12(g) 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 Securities 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 Securities 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) 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) 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) when issued, the Conversion Shares will be duly authorized, validly issued, fully
paid for and non-assessable, free and clear of all liens, claims, charges and encumbrances; (xvi) 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; (xvii) 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 10.2 below, shall be applicable to the Transaction Documents and the transactions contemplated therein; and (xviii)
Company has performed due diligence and background research on Investor and its affiliates including, without limitation, John
M. Fife, and, to its satisfaction, has made inquiries with respect to all matters Company may consider relevant to the undertakings
and relationships contemplated by the Transaction Documents including, among other things, the following: http://investing.businessweek.com/research/stocks/people/person.asp?personId=7505107&ticker=UAHC;
SEC Civil Case No. 07-C-0347 (N.D. Ill.); SEC Civil Action No. 07-CV-347 (N.D. Ill.); and FINRA Case #2011029203701. Company,
being aware of the matters described in subsection (xviii) above, acknowledges and agrees that such matters, or any similar matters,
have no bearing on the transactions contemplated by the Transaction Documents and covenants and agrees it will not use any such
information as a defense to performance of its obligations under the Transaction Documents or in any attempt to avoid, modify
or reduce such obligations.


 




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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 of the Securities 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) when issued, the Conversion Shares will be duly authorized, validly issued, fully
paid for and non-assessable, free and clear of all liens, claims, charges and encumbrances; (iii) the Common Stock shall be listed
or quoted for trading on any of (a) NYSE, (b) NASDAQ, (c) OTCQX, or (d) OTCQB; and (iv) 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.


 


5.
Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Securities
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 Securities
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 Irrevocable Letter of Instructions to Transfer Agent (the “TA
Letter”) substantially in the form attached hereto as Exhibit B acknowledged and agreed to in writing by Company’s
transfer agent (the “Transfer Agent”).


 


6.3.
Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto
as Exhibit C evidencing Company’s approval of the Transaction Documents.


 


6.4.
Company shall have delivered to Investor a fully executed Share Issuance Resolution substantially in the form attached hereto
as Exhibit D to be delivered to the Transfer Agent.


 


6.5.
Company shall have delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company
herein or therein.


 


7.
Reservation of Shares. On the date hereof, Company will reserve 1,800,000 shares of Common Stock from its authorized and
unissued Common Stock to provide for all issuances of Common Stock under the Note (the “Share Reserve”). Company
further agrees to add additional shares of Common Stock to the Share Reserve in increments of 100,000 shares as and when requested
by Investor if as of the date of any such request the number of shares being held in the Share Reserve is less than three (3)
times the number of shares of Common Stock obtained by dividing the Outstanding Balance (as defined in the Note) as of the date
of the request by the Conversion Price (as defined in the Note). Company shall further require the Transfer Agent to hold the
shares of Common Stock reserved pursuant to the Share Reserve exclusively for the benefit of Investor and to issue such shares
to Investor promptly upon Investor’s delivery of a Redemption Notice under the Note. Finally, Company shall require the
Transfer Agent to issue shares of Common Stock pursuant to the Note to Investor out of its authorized and unissued shares, and
not the Share Reserve, to the extent shares of Common Stock have been authorized, but not issued, and are not included in the
Share Reserve. The Transfer Agent shall only issue shares out of the Share Reserve to the extent there are no other authorized
shares available for issuance and then only with Investor’s written consent.


 


8.
OFAC; Patriot Act.


 


8.1.
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.


 




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8.2.
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.


 


8.3.
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 8.3 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.


 


9.
Terms of Future Financings. So long as the Note is outstanding, upon any issuance by Company of any convertible notes or
similar instruments (“Convertible Note Instruments”) with any term or condition more favorable to the holder
of such Convertible Note Instruments or with a term in favor of the holder of such Convertible Note Instruments 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 and warrant exercise price, if any, and anti-dilution/conversion and
exercise price resets.


 


10.
Miscellaneous. The provisions set forth in this Section 10 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 10 and any provision in any other Transaction Document, the provision in such other Transaction
Document shall govern.


 




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10.1.
Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit E) 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 E attached
hereto (the “Arbitration Provisions”). For the avoidance of doubt, the parties agree that the injunction described
in Section 10.3 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.


 


10.2.
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 (and notwithstanding the terms (specifically including any governing law and venue terms) of
any transfer agent services agreement or other agreement between the Transfer Agent and Company, such litigation specifically
includes, without limitation any action between or involving Company and the Transfer Agent under the TA Letter or otherwise related
to Investor in any way (specifically including, without limitation, any action where Company seeks to obtain an injunction, temporary
restraining order, or otherwise prohibit the Transfer Agent from issuing shares of Common Stock to Investor for any reason)),
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 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 10.9 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 10.2 are material terms to induce Investor to enter into the Transaction Documents and that but for Company’s
agreements set forth in this Section 10.2 Investor would not have entered into the Transaction Documents.


 




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10.3.
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. 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.


 


10.4.
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.


 


10.5.
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.


 


10.6.
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.


 


10.7.
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.


 


10.8.
Amendments. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both
parties hereto.


 




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10.9.
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:


 


KinerjaPay
Corp.


Attn:
Edwin Witarsa Ng


JI
Multatuli, No. 8A Clyde Road


Medan,
Indonesia 20151


 


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


 


The
Lonergan Law Firm, LLC


Attn:
Lawrence R. Lonergan


96
Park Street


Montclair,
NJ 07042


 


If
to Investor:


 


Iliad
Research and Trading, L.P.


Attn:
John Fife


303
East Wacker Drive, Suite 1040


Chicago,
Illinois 60601


 


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


 


10.10.
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.


 


10.11.
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.


 


10.12.
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.


 




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10.13.
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.


 


10.14.
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 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,
attorneys’ fees, expenses, deposition costs, and disbursements.


 


10.15.
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.


 


10.16.
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.


 


10.17.
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.


 


10.18.
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]


 




    	 	8	 



    	 



    

 


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:	$115,000.00
	 	 
	Purchase
    Price:	$100,000.00


 


	 	INVESTOR:
	 	 	 
	 	Iliad
    Research and Trading, L.P.
	 	 	 
	 	By:
    	Iliad
    Management, LLC, its General Partner
	 	 	 
	 	By:	Fife
    Trading, Inc., its Manager
	 	 	 
	 	By:	 
	 	 	John
    M. Fife, President
	 	 	 
	 	COMPANY:
	 	 	 
	 	KinerjaPay
    Corp.
	 	 	
	 	By:	
	 	 	Edwin
    Ng, Chief Executive Officer


 


[Signature
Page to Securities Purchase Agreement]


 




    	 	 	 



    	 



    

 


ATTACHED
EXHIBITS:


 


	Exhibit
    A	Note
	Exhibit
    B	Irrevocable
    Transfer Agent Instructions
	Exhibit
    C	Secretary’s
    Certificate
	Exhibit
    D	Share
    Issuance Resolution
	Exhibit
    E	Arbitration
    Provisions


 




    	 	 	 



    	 



    

 


Exhibit
E


 


ARBITRATION
PROVISIONS


 


1.
Dispute Resolution. For purposes of this Exhibit E, 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 E
(“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 10.9 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 10.9 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 10.9 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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