Exhibit 10.1


 


SECURITIES
PURCHASE AGREEMENT


 


THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of November 4, 2022, is entered into by and between
NRX PHARMACEUTICALS, INC., a Delaware corporation (“Company”), and STREETERVILLE CAPITAL, LLC, a Utah limited
liability company, its successors and/or assigns (“Investor”).


 


A.            Company
and Investor are executing and delivering this Agreement in reliance upon an 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 $11,020,000.00 (the “Note”),
convertible into common stock, $0.001 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, the Guaranty (as defined below), and all other certificates, agreements 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, 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 November 4,
2022, 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 or electronically 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.            Purchase
Price. The Note carries an original issue discount of $1,000,000.00 (the “OID”). In addition, Company agrees to
pay $20,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence, monitoring and other transaction costs
incurred in connection with the purchase and sale of the Note (the “Transaction Expense Amount”). The OID and Transaction
Expense amount will be included in the initial principal balance of the Note. The “Purchase Price”, therefore, shall
be $10,000,000.00, computed as follows: $11,020,000.00 initial principal balance, less the OID, less the Transaction Expense Amount.


 






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1.5.            Collateral
for the Note; Guaranty. The Note shall be unsecured. Company’s wholly-owned subsidiary, NeuroRx, Inc., a Delaware corporation
(“NeuroRx”), will guarantee all of Company’s obligations under the Note and the other Transaction Documents
by way of that certain Guaranty of even date herewith attached hereto as Exhibit B (the “Guaranty”).


 


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(b) of
the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is obligated to file reports pursuant to Section 13
or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and
thereby, have been duly and validly authorized by Company and all necessary actions have been taken for such authorization; (v) this
Agreement, the Note, the Guaranty 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, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, or other laws relating to creditors’ rights generally or as limited by the
availability of equitable remedies; (vi) the execution and delivery of the Transaction Documents by Company, the issuance of the
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 certificate of incorporation 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) subject
to the listing requirement of the Nasdaq Global Market (“Nasdaq”) that Company’s stockholders approve any increase
in the outstanding number of shares of the Company by more than 20%, 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) except
as disclosed in subsequent filings by the Company with the SEC, 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 pursuant to Section 13
or Section 15(d) of 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) 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 10.2 below, shall be applicable to the Transaction Documents and the transactions contemplated
therein; (xvii) Company acknowledges that Investor has represented to Company that Investor is not registered as a ‘dealer’
under the 1934 Act; and (xviii) Company has performed due diligence and background research on Investor and its affiliates, and
has received and reviewed the due diligence packet provided by Investor. Company, being aware of the matters and legal issues described
in subsections (xvii) and (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 or legal
theory as a defense to performance of its obligations under the Transaction Documents or in any attempt to avoid, modify, reduce, rescind
or void such obligations.


 






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4.            Company
Covenants. Until all of Company’s obligations under the Note 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) 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 reasonable actions under its control to ensure that adequate current public information with respect to Company, as required
in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such termination; (ii) the
Common Stock shall be listed or quoted for trading on NYSE, NYSE American or Nasdaq; (iii) trading in Company’s Common Stock
will not be suspended, halted, frozen, reach zero bid or otherwise cease trading on Company’s principal trading market other than
as a result of a market shutdown or moratorium; (iv) from the Closing Date until five (5) days after the Note is satisfied
in full, Company will not make any Restricted Issuance (as defined below) without Investor’s prior written consent, which consent
may be granted or withheld in Investor’s sole and absolute discretion; (v) Company shall not enter into any agreement or
otherwise agree to any covenant, condition, or obligation that locks up, restricts in any way or otherwise prohibits Company: (a) from
entering into a variable rate transaction with Investor or any affiliate of Investor, or (b) from issuing Common Stock, preferred
stock, warrants, convertible notes, other debt securities, or any other Company securities to Investor or any affiliate of Investor;
(vi) Company will not pledge or grant a security interest in any of its intellectual property as collateral for indebtedness without
Investor’s prior written consent, which consent may be granted on withheld in Investor’s sole and absolute discretion; and
(vii) within thirty (30) days following Closing, Company will file a prospectus supplement to its Form S-3 shelf registration
statement (No. 333-265492) for the issuance of Conversion Shares to Investor under the Note. For purposes hereof, the term “Restricted
Issuance” means the issuance, incurrence or guaranty of any debt obligations other than trade payables in the ordinary course
of business, or the issuance of any securities that (1) have or may have conversion rights of any kind, contingent, conditional
or otherwise, in which the number of shares that may be issued pursuant to such conversion right varies with the market price of the
Common Stock, (2) are or may become convertible into Common Stock (including without limitation convertible debt, warrants or convertible
preferred shares), with a conversion price that varies with the market price of the Common Stock, even if such security only becomes
convertible following an event of default, the passage of time, or another trigger event or condition; or (3) have a fixed conversion
price, exercise price or exchange price that is subject to being reset at some future date at any time after the initial issuance of
such debt or equity security (A) due to a change in the market price of Company’s Common Stock since the date of the initial
issuance or (B) upon the occurrence of specified or contingent events directly or indirectly related to the business of Company.
For the avoidance of doubt, the issuance of Common Stock under, pursuant to, in exchange for or in connection with any contract or instrument,
whether convertible or not, is deemed a Restricted Issuance for purposes hereof if the number of shares of Common Stock to be issued
is based upon or related in any way to the market price of the Common Stock, including, but not limited to, Common Stock issued in connection
with a Section 3(a)(9) exchange, a Section 3(a)(10) settlement, or any other similar settlement or exchange.
For the further avoidance of doubt, the term Restricted Issuance does not include ATMs (as defined below), commercial bank loans, lines
of credit (not including equity lines of credit), and leases. For purposes hereof, the term “ATM” means a continuous
primary offering, whereby Company, with the help of a FINRA-registered broker-dealer as an agent, sells newly issued equity securities,
registered off of a shelf-registration statement, into a securities exchange at prevailing market prices.


 


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.            NeuroRx
shall have executed and delivered to the Investor the Guaranty.


 






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6.3.            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 C acknowledged and agreed to in writing by Company’s transfer
agent (the “Transfer Agent”).


 


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


 


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 45,000,000 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 1,000,000 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 Redemption 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.            Participation
Right. Beginning on the Closing Date and ending on the date that the Note is paid in full, Company
hereby grants to Investor a participation right, whereby Investor shall have the right to participate at Investor’s discretion
in up to ten percent (10%) of the amount sold in any Restricted Issuance (the “Participation Right”). Within two (2) Trading
Days following the consummation of a Restricted Issuance, Company will provide Investor with written notice of the consummation of such
Restricted Issuance, along with copies of the transaction documents. Investor will then have up to five (5) calendar days to elect
to purchase up to ten percent (10%) of the amount of debt or equity securities issued in such transaction on the same terms and conditions
offered to all other purchasers of the same securities. The parties agree that in the event Company breaches its obligations with respect
to the Participation Right, Investor’s sole and exclusive remedy shall be to receive, as liquidated damages, an amount equal
to twenty percent (20%) of the amount Investor would have been entitled to invest under the Participation Right. For the avoidance of
doubt, Company’s breach of its obligations with respect to the Participation Right will not be considered a Trigger Event (as defined
in the Note) under the Note.


 


9.            Most
Favored Nation. So long as the Note is outstanding, upon any issuance by Company of any indebtedness
with any term or condition more favorable to the holder of such indebtedness or with a term in favor of the holder of such indebtedness
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, to the extent
such term is more favorable as aforesaid, such term shall become a part of the Transaction Documents retroactive to the date on which
such term was granted to the applicable third party. The types of terms contained in another security that may be more favorable to the
holder of such security include, but are not limited to, terms addressing conversion discounts, conversion lookback periods, interest
rates, original issue discounts, stock sale price, conversion price per share, warrant coverage, warrant exercise price, and anti-dilution/conversion
and exercise price resets. For the avoidance of doubt, the terms of this Section 9 shall not apply in respect of any transaction
the proceeds of which shall be used to satisfy the obligations of the Company under the Note in full.


 






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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.


 


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
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
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 10.10 below prior to bringing or filing, any action (including without limitation any filing or action against any
person or entity that is not a party to this Agreement, including without limitation the Transfer Agent) that is related in any way to
the Transaction Documents or any transaction contemplated herein or therein, including without limitation any action brought by Company
to enjoin or prevent the issuance of any shares of Common Stock to Investor by the Transfer Agent, and further agrees to timely name
Investor as a party to any such action. Company acknowledges that the governing law and venue provisions set forth in this Section 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 Investor may be entitled under the Transaction Documents, at law or in equity. Company specifically
agrees that: (a) 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 Stock or preferred
stock to any party unless the Note is being paid in full simultaneously with such issuance; and (b) following a breach of Section 4(v) above, Investor
shall have the right to seek and receive injunctive relief from a court or arbitrator invalidating such lock-up. Company specifically
acknowledges that Investor’s right to obtain specific performance constitutes bargained for leverage and that the loss of such
leverage would result in irreparable harm to Investor. For the avoidance of doubt, in the event Investor seeks to obtain an injunction
from a court or an arbitrator against Company or specific performance of any provision of any Transaction Document, such action shall
not be a waiver of any right of Investor under any Transaction Document, at law, or in equity, including without limitation its rights
to arbitrate any Claim pursuant to the terms of the Transaction Documents, nor shall Investor’s pursuit of an injunction prevent
Investor, under the doctrines of claim preclusion, issues preclusion, res judicata or other similar legal doctrines, from pursuing other
Claims in the future in a separate arbitration.


 


10.4.
No Shorting. During the period beginning on the Closing Date and ending on the date the Note has been repaid in full or sold by
Investor to a third party that is not an affiliate of Investor, Investor will not directly or through an affiliate engage in any
open market Short Sales (as defined below) of the Common Stock; provided; however, that unless and until Company has affirmatively
demonstrated by the use of specific evidence that Investor is engaging in open market Short Sales, Investor shall be assumed to
be in compliance with the provisions of this Section 10.4 and Company shall remain fully obligated to fulfill all of its obligations
under the Transaction Documents; and provided, further, that (i) except in connection with any litigation or arbitration relating
to any such Short Sales, Company shall under no circumstances be entitled to request or demand that Investor either (A) provide
trading or other records of Investor or of any party or (B) affirmatively demonstrate that Investor or any other party has not
engaged in any such Short Sales in breach of these provisions as a condition to Company’s fulfillment of its obligations under
any of the Transaction Documents, (ii) except in connection with any litigation or arbitration relating to any such Short Sales,
Company shall not assert Investor’s or any other party’s failure to demonstrate such absence of such Short Sales or provide
any trading or other records of Investor or any other party as all or part of a defense to any breach of Company’s obligations
under any of the Transaction Documents, and (iii) Company shall have no setoff right with respect to any such Short Sales. As used
herein, “Short Sale” has the meaning provided in Rule 200 promulgated under Regulation SHO under the 1934 Act.


 






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10.5.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic
signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


10.6.
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.


 


10.7.
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.


 


10.8.
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.


 


10.9.
Amendments. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both parties
hereto.


 


10.10.
Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be
deemed effectively given on the earliest of: (i) the date delivered, if delivered by personal delivery as against written receipt
therefor or by email to an executive officer named below or such officer’s successor, or by facsimile (with successful transmission
confirmation which is kept by sending party), (ii) the earlier of the date delivered or the third Trading Day after deposit, postage
prepaid, in the United States Postal Service by certified mail, or (iii) the earlier of the date delivered or the third Trading
Day after mailing by express courier, with delivery costs and fees prepaid, in each case, addressed to each of the other parties thereunto
entitled at the following addresses (or at such other addresses as such party may designate by five (5) calendar days’ advance
written notice similarly given to each of the other parties hereto):


 


If to Company:


 


NRX Pharmaceuticals, Inc.


Attn: Stephen Willard, CEO


1201 North Market Street, Suite 111


Wilmington, Delaware 19801


 






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


 


DLA
Piper LLP


Attn: Douglas Boggs


500 Eighth Street, NW


Washington, DC 20004


Email: douglas.boggs@us.dlapiper.com


 


And


 


DLA Piper LLP


Attn: Curtis L. Mo


2000 University Avenue


East Palo Alto, CA 94303


Email: curtis.mo@us.dlapiper.com


 


If to Investor:


 


Streeterville Capital, LLC


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


 


10.11.
Successors and Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed
by Investor hereunder may be assigned by Investor to a third party, including its affiliates, in whole or in part, without the need to
obtain Company’s consent thereto. Company may not assign its rights or obligations under this Agreement or delegate its duties
hereunder, whether directly or indirectly, without the prior written consent of Investor, and any such attempted assignment or delegation
shall be null and void.


 


10.12.
Survival. The representations and warranties of Company and the agreements and covenants set forth in this Agreement shall survive
the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of Investor. Company agrees to indemnify
and hold harmless Investor and all its officers, directors, employees, attorneys, and agents for loss or damage arising as a result of
or related to any breach or alleged breach by Company of any of its representations, warranties and covenants set forth in this Agreement
or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.


 


10.13.
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


10.14.
Investor’s Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction
Documents are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and
remedy that Investor may have, whether specifically granted in this Agreement or any other Transaction Document, or existing at law,
in equity, or by statute, and any and all such rights and remedies may be exercised from time to time and as often and in such order
as Investor may deem expedient.


 






    8


     


    

 


10.15.
Attorneys’ Fees and Cost of Collection. In the event any suit, action or arbitration is filed by either party against the
other to interpret or enforce any of the Transaction Documents, the unsuccessful party to such action agrees to pay to the prevailing
party all costs and expenses, including attorneys’ fees incurred therein, including the same with respect to an appeal. The “prevailing
party” shall be the party in whose favor a judgment is entered, regardless of whether judgment is entered on all claims asserted
by such party and regardless of the amount of the judgment; or where, due to the assertion of counterclaims, judgments are entered in
favor of and against both parties, then the arbitrator shall determine the “prevailing party” by taking into account the
relative dollar amounts of the judgments or, if the judgments involve nonmonetary relief, the relative importance and value of such relief.
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.


 


10.16.
Waiver. No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by the party
granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision
or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent
or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.


 


10.17.
Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS
SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT,
ANY OTHER TRANSACTION DOCUMENT, OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS
TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES
THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.


 


10.18.
Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement and the
other Transaction Documents.


 


10.19.
Voluntary Agreement. Company has carefully read this Agreement and each of the other Transaction Documents and has asked any questions
needed for Company to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction Documents
and fully understand them. Company has had the opportunity to seek the advice of an attorney of Company’s choosing, or has waived
the right to do so, and is executing this Agreement and each of the other Transaction Documents voluntarily and without any duress or
undue influence by Investor or anyone else.


 






    9


     


    

 


10.20.
Document Imaging. Investor shall be entitled, in its sole discretion, to image or make copies of all or any selection of the agreements,
instruments, documents, and items and records governing, arising from or relating to any of Company’s loans, including, without
limitation, this Agreement and the other Transaction Documents, and Investor may destroy or archive the paper originals. The parties
hereto (i) waive any right to insist or require that Investor produce paper originals, (ii) agree that such images shall
be accorded the same force and effect as the paper originals, (iii) agree that Investor is entitled to use such images in lieu
of destroyed or archived originals for any purpose, including as admissible evidence in any demand, presentment or other proceedings,
and (iv) further agree that any executed facsimile (faxed), scanned, emailed, or other imaged copy of this Agreement or any other
Transaction Document shall be deemed to be of the same force and effect as the original manually executed document.


 


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


 






    10


     


    

 


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


 


	 	INVESTOR:
	 	 
	 	Streeterville Capital, LLC
	 	 
	 	By:	/s/ John M. Fife
	 	 	John M. Fife, President
	 	 
	 	COMPANY:
	 	 
	 	NRX Pharmaceuticals, Inc.
	 	 
	 	By:	/s/ Stephen Willard                  
	 	 	Stephen Willard, CEO




 


[Signature Page to
Securities Purchase Agreement]


 






     


     


    

 


ATTACHED EXHIBITS:


 


	Exhibit A	Note
	Exhibit B	Guaranty
	Exhibit C	Irrevocable Transfer Agent Instructions
	Exhibit D	Secretary’s Certificate
	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. As a result, any attempt to rescind the
Agreement (or these Arbitration Provisions) or any other Transaction Document) or declare the Agreement (or these Arbitration Provisions)
or any other Transaction Document invalid or unenforceable pursuant to Section 29 of the 1934 Act or for any other reason is subject
to these Arbitration Provisions. 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 10.10 of the Agreement; provided, however, that the Arbitration Notice may not be given by email or fax. Arbitration
will be deemed initiated as of the date that the Arbitration Notice is deemed delivered to such other party under Section 10.10
of the Agreement (the “Service Date”). After the Service Date, information may be delivered, and notices may be given,
by email or fax pursuant to Section 10.10 of the Agreement or any other method permitted thereunder. The Arbitration Notice must
describe the nature of the controversy, the remedies sought, and the election to commence Arbitration proceedings. All Claims in the
Arbitration Notice must be pleaded consistent with the Utah Rules of Civil Procedure.


 






     


     


    

 


4.2            Selection
and Payment of Arbitrator.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


5.            Arbitration
Appeal.


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


5.4             Timing.


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


6.             Miscellaneous.


 


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


 


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


 


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


 


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


 


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


 


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