NextPlay Technologies, Inc. 8-K


Exhibit 10.1 



 

 


NO
T E PU
R C H A S E AG
R E E M E N T


 


THIS
NOTE PURCHASE AGREEMENT
(this “Agreement”), dated as of October 22, 2021, is entered into by and between NEXTPLAY
TECHNOLOGIES, INC., a Nevada 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 Secured Promissory Note, in the form attached hereto as Exhibit A, in the original principal amount of $1,665,000.00 (the “Note”).


 


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


 


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


 


		1.	Purchase and Sale of Note.



 


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


 


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


 


1.3. 
Closing Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below,
the date of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be October 22,
2021, 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 .pdf documents, but
shall be deemed for all purposes to have occurred at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.


 


1.4. 
Collateral for the Note. The Note shall be secured by the collateral set forth in that certain Security Agreement attached
hereto as Exhibit B listing all of Company’s assets as security for Company’s obligations under the Transaction Documents
(the “Security Agreement”).


 


1.5. 
Original Issue Discount; Transaction Expense Amount. The Note carries an original issue discount of $150,000.00 (the “OID”).
In addition, Company agrees to pay $15,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence, monitoring
and other transaction costs incurred in connection with the purchase and sale of the Note (the “Transaction Expense Amount”),
all of which amount is included in the initial principal balance of the Note. The “Purchase
Price”, therefore, shall be $1,500,000.00, computed
as follows: $1,665,000.00 initial principal balance, less the OID, less the Transaction Expense Amount.


 



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2. Investor’s Representations and
Warranties. Investor represents and warrants to Company that as of the Closing Date: (i) this Agreement has been duly and
validly authorized; (ii) this Agreement constitutes a valid and binding agreement of
Investor enforceable in accordance with its terms; (iii) Investor is an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D of the 1933 Act; (iv) Investor is acquiring the Note for its own account and not with a view towards, or
for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant
to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein, Investor does not
agree, or make any representation or warranty, to hold the Note for any minimum or other specific term and reserves the right to
dispose of the Note at any time in accordance with or pursuant to a registration statement or an exemption from registration under
the 1933 Act; (v) Investor does not presently have any agreement or understanding, directly or
indirectly, with any Person (as defined below) to distribute the Note in violation of applicable securities laws; (vi)
Investor and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of
Company and materials relating to the offer and sale of the Note that have been requested by Investor; (vii) Investor and its
advisors, if any, have been afforded the opportunity to ask questions of Company; (viii) neither such inquiries nor any other due
diligence investigations conducted by Investor or its advisors, if any, or its representatives shall modify, amend or affect
Investor's right to rely on Company's representations and warranties contained herein; (ix) Investor understands that its investment
in the Note involves a high degree of risk; (x) Investor has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision with respect to its acquisition of the Note; and (xi) Investor understands that
the Note has not been and is not being registered under the 1933 Act or any state securities laws and that Company will not be
obligated in the future to register the Note under the 1933 Act or the Securities Exchange Act of 1934, as amended (the
“1934 Act”), or under any state securities laws and that Company has not made or is making any representation,
warranty or covenant, express or implied, as to the availability of any exemption from registration under the 1933 Act or any
applicable state securities laws for the resale, pledge or other transfer of the Note. For purposes of this Agreement,
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and any governmental entity or any department or agency thereof.


 






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3. Company’s
Representations and Warranties. Company represents and warrants to Investor that as of the Closing Date: (i) Company is a
corporation duly organized, validly existing and in good standing under the laws of its state of incorporation and has the requisite
corporate power to own its properties and to carry on its business as now being conducted; (ii) Company is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction where the nature of the business conducted or
property owned by it makes such qualification necessary; (iii) Company has registered its shares of common stock, $0.00001 per share
(the “Common Stock”), under Section 12(b) of the 1934 Act, and is obligated to file reports pursuant to Section
13 or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and thereby,
have been duly and validly authorized by Company and all necessary actions have been taken; (v) this Agreement, the Note, the
Security Agreement, 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 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, 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, except for, with respect to clauses (b) and (c) above, for any breach or default that would not
reasonably be expected to result in a material adverse effect on Company’s the condition (financial or otherwise), results of
operations, business or assets (a “Material Adverse Effect”); (vii) no further authorization, approval or
consent of any court, governmental body, regulatory agency, self- regulatory organization, or stock exchange or market or the
stockholders or any lender of Company is required to be obtained by Company for the issuance of the Note to Investor or the entering
into of the Transaction Documents; (viii) none of Company’s filings with the SEC contained, at the time they were filed, any
untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were made, not misleading; (ix) 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 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 reasonably be expected to have a Material Adverse Effect 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) Investor shall have
no obligation with respect to any commissions, placement agent or finder’s fees or similar payments (“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, 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; (xiv)
neither Investor nor any of its officers, directors, 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; (xv) 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 7.2 below, shall be applicable to the Transaction Documents and the transactions contemplated therein;
and (xvi) 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. In addition, certain
affiliates of Investor are involved in ongoing litigation with the SEC regarding broker-dealer registration (see SEC Civil
Case No. 1:20-cv-05227 (N.D. Ill.)). Company, being aware of the matters described in subsection (xvi) 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, offset or reduce 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) so long as Investor beneficially owns the Note and for at least twenty (20) Trading Days
(as defined in the Note) thereafter, Company will timely file on the applicable deadline all reports required to be filed with
the SEC pursuant to Sections 13 or 15(d) of the 1934 Act, and will take all reasonable action under its control to ensure that adequate
current public information with respect to Company, as required in accordance with Rule 144 of the 1933 Act, is publicly available, and
will not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations
thereunder would permit such termination; (ii) the Common Stock shall be listed or quoted for trading on any of (a) NYSE, (b) NASDAQ,
(c) OTCQX, or (d) OTCQB; (iii) trading in Company’s Common Stock will not be suspended, halted, chilled, frozen, reach zero bid
or otherwise cease trading on Company’s principal trading market; (iv) Company will make a payment on the Note equal to twenty
percent (20%) of the gross proceeds Company receives from the sale of any of its Common Stock or preferred stock, within ten (10) days
of receiving such an amount; (v) Company will not enter into any financing transaction with John Kirkland or any entity owned by or affiliated
with John Kirkland; and (vi) within ten (10) days of completion of Company’s purchase of the Reinhart Interactive TV AG equity
interest (the “Reinhart Interest”), Company will pledge the Reinhart Interest to Investor pursuant to a pledge agreement
in a form reasonably satisfactory to Investor.


 


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, the Security 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 C 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.


 






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7.1. 
Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit D) 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 D attached hereto (the “Arbitration
Provisions”). For the avoidance of doubt, the parties agree that the injunction described in Section 7.3 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. 





 


7.2. 
Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of Utah,
without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the State of Utah. Each party consents to and expressly agrees
that the exclusive venue for arbitration of any dispute arising out of or relating to any Transaction Document or the relationship of
the parties or their affiliates shall be in Salt Lake County, Utah. Without modifying the parties’ obligations to resolve disputes
hereunder pursuant to the Arbitration Provisions, for any litigation arising in connection with any of the Transaction Documents, each
party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction of any state or federal court sitting
in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court for the purposes hereof, and (iii) 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 7.12 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 timely name Investor as a party to any such action. Company acknowledges that the governing law
and venue provisions set forth in this Section 7.2 are material terms to induce Investor to enter into the Transaction Documents and that
but for Company’s agreements set forth in this Section 7.2 Investor would not have entered into the Transaction Documents.


 


7.3.  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 following an Event of Default (as defined in the Note) under
the Note and during the period such Event of Default remains in place, the Company shall pay Investor, as a payment on the Note,
thirty percent (30%) of the gross proceeds the Company receives from the sale of any of its Common Stock or preferred stock, within
ten (10) days of receiving such an amount. Company also agrees that in the event it fails to timely pay over proceeds as required
pursuant to the previous sentence, 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. 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.


 






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7.4. 
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 7.4 and Company shall remain fully obligated to fulfill all of its obligations under the
Transaction Documents; and provided, further, that (i) Company shall under no circumstances be entitled to request or demand that Investor
either (A) provide trading or other records of Investor or of any party or (B) affirmatively demonstrate that Investor or any other party
has not engaged in any such Short Sales in breach of these provisions as a condition to Company’s fulfillment of its obligations
under any of the Transaction Documents, (ii) Company shall not assert Investor’s or any other party’s failure to demonstrate
such absence of such Short Sales or provide any trading or other records of Investor or any other party as all or part of a defense to
any breach of Company’s obligations under any of the Transaction Documents, and (iii) Company shall have no setoff right with respect
to any such Short Sales. As used herein, “Short Sale” has the meaning provided in Rule 200 promulgated under Regulation
SHO under the 1934 Act.


 


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.  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.


 


7.7. 
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.


 


7.8. 
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.


 



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7.9. 
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.


 


7.10.  
 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.


 


7.11.  
Amendments. No provision of
this Agreement may be waived or amended other than by an instrument in writing signed by both parties hereto.


 


7.12.  
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:


 


NextPlay Technologies, Inc.


Attn: Bill Kerby


1560 Sawgrass Corporate Parkway, Suite 130


Sunrise, Florida 33331


 


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


 


The Loev Law Firm, PC


Attn: David M. Loev


6300 West Loop South, Suite 280


Bellaire, Texas 77401


 


If to
Investor:


 


Streeterville Capital, LLC


Attn: John Fife


303 East Wacker Drive, Suite 1040


Chicago, Illinois 60601


 






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


 


Hansen Black Anderson Ashcraft PLLC


Attn: Jonathan K. Hansen


3051 West Maple Loop Drive, Suite 325


Lehi, Utah 84043


 


7.13.  
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 its affiliates, in whole or in part, without the need to obtain Company’s
consent thereto. Except as set forth above, neither Investor nor Company may assign its rights or obligations under this Agreement or
delegate its duties hereunder without the prior written consent of the other party.


 


7.14.  
Survival. The representations and warranties of the parties 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 each party. Each party agrees to indemnify and hold harmless the other and all its respective officers, directors, employees,
attorneys, and agents for loss or damage arising as a result of or related to any breach or alleged
breach by the other party 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.


 


7.15.  
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.


 


7.16.  
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
any party 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 such party may
deem expedient.


 


7.17. 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 reasonable
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.


 



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7.18. 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.


 


7.19.         
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.


 


7.20.  
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.


 


7.21.  
Voluntary Agreement. Each party has carefully read this Agreement and each of the other Transaction Documents and has asked
any questions needed for such party to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction
Documents and fully understand them. Each party has had the opportunity to seek the advice of an attorney of such party’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 the other party or anyone else.


 


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


 






    9 


     


    

 


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:
	 	 
	 	NExtplay
               Technologies, INC.
	 	 	 
		By:	/s/ Bill Kerby
	 	 	Bill Kerby, CEO





 


ATTACHED EXHIBITS:


 


Exhibit A Note


Exhibit B Security Agreement


Exhibit C          Secretary’s Certificate


Exhibit D Arbitration Provisions


 





[Signature Page to Note
Purchase Agreement]


 




     


     


    

 


EXHIBIT D


 


ARBITRATION PROVISIONS


 


1.  Dispute
Resolution. For purposes of this Exhibit D, 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 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 parties hereby agree that the arbitration provisions set forth in this Exhibit D
(“Arbitration Provisions”) are binding on each of them. As a result, any attempt to rescind the Agreement (or these
Arbitration Provisions) or declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable
for any reason is subject to these Arbitration Provisions. These Arbitration Provisions shall also survive any termination or expiration
of the Agreement. Any capitalized term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement. 


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


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


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



4.1 
Initiation of Arbitration. Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate Arbitration
by giving written notice to the other party (“Arbitration Notice”) in the same manner that notice is permitted under
Section 7.12 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 7.12 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 7.12 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,
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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.


 


Arbitration Provisions,
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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 r espond 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.


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. 


 


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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. 


 


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(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).


 


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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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Arbitration Provisions,
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