Note
Purchase Agreement
This
Note Purchase Agreement (this “Agreement”),
dated as of June 1, 2018, is entered into by and between MGT Capital Investments, Inc.,
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 rules and regulations promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “1933 Act”).
B.
Investor desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement,
a Promissory Note, in the form attached hereto as Exhibit A, in the original principal amount of $3,600,000.00 (the “Note”).
C.
This Agreement, the Note, and all other certificates, documents, agreements, resolutions and instruments delivered to any party
under or in connection with this Agreement, as the same may be amended from time to time, are collectively referred to herein
as the “Transaction Documents”.
NOW,
THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Company and Investor hereby agree as follows:
1.
Purchase and Sale of Note.
1.1.
Purchase of Note. Company shall issue and sell to Investor and Investor agrees to 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, 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 June
1, 2018, or such other 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 .pdf documents, but shall be deemed to have occurred at the
offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.
1.4.
Collateral for the Note. The Note shall not be secured.
1.5.
Original Issue Discount. The Note carries an original issue discount of $600,000.00 (the “OID”). The
“Purchase Price”, therefore, shall be $3,000,000.00, computed as follows: $3,600,000.00 initial principal balance,
less the OID.
2.
Investor’s Representations and Warranties. Investor represents and warrants to Company that: (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: (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 shares of common stock, $0.001 par value per share (the “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; (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 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 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 or state regulatory body, administrative agency, or other governmental body having jurisdiction
over Company or any of Company’s properties or assets; (vii) no further authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender
of Company is required to be obtained by Company for the issuance of the Note to Investor; (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 or existing Broker Fees; (xv) neither Investor nor any of its officers, directors, stockholders, members, managers,
employees, agents or representatives has made any representations or warranties to Company or any of its officers, directors,
employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making its decision to
enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation, warranty,
covenant or promise of Investor or its officers, directors, members, managers, employees, agents or representatives other than
as set forth in the Transaction Documents; (xvi) Company acknowledges that the State of Utah has a reasonable relationship and
sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto
such that the laws and venue of the State of Utah, as set forth more specifically in Section 7.3 below, shall be applicable to
the Transaction Documents and the transactions contemplated therein; and (xvii) 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 (xvii) 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.
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 shall comply with the following covenants: (i)
so long as Investor beneficially owns the Note or any securities acquired in exchange thereof, Company shall 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 shall
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 shall not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such termination; (ii)
the Common Stock shall be listed or quoted for trading on any of (a) NYSE, (b) NASDAQ, (c) OTCQX, or (d) OTCQB; and (iii) trading
in Company’s Common Stock shall not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease on Company’s
principal trading market.
5.
Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note to Investor
at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:
5.1.
Investor shall have executed this Agreement and delivered the same to Company.
5.2.
Investor shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.
6.
Conditions to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note at the
Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these
conditions are for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:
6.1.
Company shall have executed this Agreement and the Note and delivered the same to Investor.
6.2.
Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto
as Exhibit B evidencing Company’s approval of the Transaction Documents.
6.3.
Company shall have delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company
herein or therein.
7.
Miscellaneous. The provisions set forth in this Section 7 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 7 and any provision in any other Transaction Document, the provision in such other Transaction
Document shall govern.
7.1.
Certain Capitalized Terms. To the extent any capitalized term used in any Transaction Document is defined in any other
Transaction Document (as noted therein), such capitalized term shall remain applicable in the Transaction Document in which it
is so used even if the other Transaction Document (wherein such term is defined) has been released, satisfied, or is otherwise
cancelled.
7.2.
Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit C) arising under this Agreement
or any other Transaction Document or any other agreement between the parties and their affiliates to binding arbitration pursuant
to the arbitration provisions set forth in Exhibit C attached hereto (the “Arbitration Provisions”).
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.
7.3.
Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State
of Utah, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any
other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Utah. Each party
consents to and expressly agrees that the exclusive venue for arbitration of any dispute arising out of or relating to any Transaction
Document or the relationship of the parties or their affiliates shall be in Salt Lake County, Utah. Without modifying the parties
obligations to resolve disputes hereunder pursuant to the Arbitration Provisions, for any litigation arising in connection with
any of the Transaction Documents, each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction
of any state or federal court sitting in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court
for the purposes hereof, (iii) agrees to not bring any such action 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 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 7.11 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) that is related in
any way to the Transaction Documents or any transaction contemplated herein or therein, and further agrees to name Investor as
a party to any such action. Company acknowledges that the governing law and venue provisions set forth in this Section 7.3 are
material terms to induce Investor to enter into the Transaction Documents and that but for Company’s agreements set forth
in this Section 7.3 Investor would not have entered into the Transaction Documents.
7.4.
Specific Performance. Company acknowledges and agrees that irreparable damage would occur to Investor in the event that
Company fails to perform any 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 an injunction or 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 any Investor may be entitled under the Transaction Documents,
at law or in equity. For the avoidance of doubt, in the event Investor seeks to obtain an injunction 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.
7.5.
Counterparts. Each Transaction Document may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another
party’s executed counterpart of a Transaction Document (or such party’s signature page thereof) will be deemed to
be an executed original thereof.
7.6.
Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
7.7.
Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
7.8.
Entire Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the
parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither
Company nor Investor makes any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance
of doubt, all prior term sheets or other documents between Company and Investor, or any affiliate thereof, related to the transactions
contemplated by the Transaction Documents (collectively, “Prior Agreements”), that may have been entered into
between Company and Investor, or any affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by
the Transaction Documents. To the extent there is a conflict between any term set forth in any Prior Agreement and the term(s)
of the Transaction Documents, the Transaction Documents shall govern.
7.9.
No Reliance. Company acknowledges and agrees that neither Investor nor any of its officers, directors, members, managers,
representatives or agents has made any representations or warranties to Company or any of its officers, directors, representatives,
agents or employees 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, agents or representatives other than as set forth in the Transaction Documents.
7.10.
Amendments. The prior written consent of both parties hereto shall be required for any change or amendment to this Agreement.
7.11.
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, or by facsimile (with successful transmission confirmation), (ii) the earlier of
the date delivered or the third business 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 business 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:
MGT
Capital Investments, Inc.
Attn:
Robert Ladd
512
South Magnum Street, Suite 408
Durham,
North Carolina 27701
With
a copy to (which copy shall not constitute notice):
Olshan
Frome Wolosky LLP
Attn:
Jason Saltsberg, Esq.
1325
Avenue of the Americas
New
York, New York 10019
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
7.12.
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 financing sources, 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.
7.13.
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.
7.14.
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.
7.15.
Investor’s Rights and Remedies Cumulative; Liquidated Damages. 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. The parties acknowledge and agree that upon Company’s
failure to comply with the provisions of the Transaction Documents, Investor’s damages would be uncertain and difficult
(if not impossible) to accurately estimate because of the parties’ inability to predict future interest rates and future
share prices, Investor’s increased risk, and the uncertainty of the availability of a suitable substitute investment opportunity
for Investor, among other reasons. Accordingly, any fees, charges, and default interest due under the Note and the other Transaction
Documents are intended by the parties to be, and shall be deemed, liquidated damages. The parties agree that such liquidated damages
are a reasonable estimate of Investor’s actual damages and not a penalty, and shall not be deemed in any way to limit any
other right or remedy Investor may have hereunder, at law or in equity. The parties acknowledge and agree that under the circumstances
existing at the time this Agreement is entered into, such liquidated damages are fair and reasonable and are not penalties. All
fees, charges, and default interest provided for in the Transaction Documents are agreed to by the parties to be based upon the
obligations and the risks assumed by the parties as of the Closing Date and are consistent with investments of this type. The
liquidated damages provisions of the Transaction Documents shall not limit or preclude a party from pursuing any other remedy
available at law or in equity; provided, however, that the liquidated damages provided for in the Transaction Documents
are intended to be in lieu of actual damages.
7.16.
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.
7.17.
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.
7.18.
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.
7.19.
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.
7.20.
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]
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: | |
$ | 3,600,000.00 | |
| | |
| | |
| Purchase Price: | |
$ | 3,000,000.00 | |
| |
INVESTOR: |
| |
|
| |
Iliad
Research and Trading, L.P. |
| |
|
|
| |
By: |
Iliad
Management, LLC, its General Partner |
| |
|
|
| |
By: |
Fife
Trading, Inc., Manager |
| |
|
|
| |
By: |
/s/
John M. Fife |
| |
|
John
M. Fife, President |
| |
|
|
| |
COMPANY: |
| |
MGT
Capital Investments, Inc. |
| |
|
|
| |
By: |
/s/
Robert Ladd |
| |
Printed
Name: |
Robert Ladd
|
| |
Title: |
President
and CEO
|
[Signature
Page to Note Purchase Agreement]
ATTACHED
EXHIBITS:
| Exhibit
A |
Note |
| Exhibit
B |
Secretary’s
Certificate |
| Exhibit
C |
Arbitration
Provisions |
Exhibit
C
ARBITRATION
PROVISIONS
1.
Dispute Resolution. For purposes of this Exhibit C, the term “Claims” means any disputes, claims,
demands, causes of action, requests for injunctive relief, requests for specific performance, liabilities, damages, losses, or
controversies whatsoever arising from, related to, or connected with the transactions contemplated in the Transaction Documents
and any communications between the parties related thereto, including without limitation any claims of mutual mistake, mistake,
fraud, misrepresentation, failure of formation, failure of consideration, promissory estoppel, unconscionability, failure of condition
precedent, rescission, and any statutory claims, tort claims, contract claims, or claims to void, invalidate or terminate the
Agreement (or these Arbitration Provisions (defined below)) or any of the other Transaction Documents. The parties to the Agreement
(the “parties”) hereby agree that the arbitration provisions set forth in this Exhibit C (“Arbitration
Provisions”) are binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions)
or declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable for any
reason is subject to these Arbitration Provisions. These Arbitration Provisions shall also survive any termination or expiration
of the Agreement. Any capitalized term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.
2.
Arbitration. Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”)
to be conducted exclusively in Salt Lake County or Utah 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 7.11 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 7.11 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 7.11 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.
| Arbitration Provisions, Page 1 |
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, 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.
| Arbitration Provisions, Page 2 |
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.
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(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.
| Arbitration Provisions, Page 4 |
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.
| Arbitration Provisions, Page 5 |
(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).
| Arbitration Provisions, Page 6 |
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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