Exhibit
10.1


 


Note
Purchase Agreement


 


This
Note Purchase Agreement (this “Agreement”),
dated as of September 23, 2022, is entered into by and between Quantum Computing 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 Promissory Note,
in the form attached hereto as Exhibit A, in the original principal amount of $8,250,000.00 (the “Note”).


 


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


 


NOW,
THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and 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 hereby agrees to issue and sell to Investor and Investor hereby agrees to 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 September 23, 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 .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. Original
Issue Discount. The Note carries an original issue discount of $750,000.00 (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 will
be included in the initial principal balance of the Note and the Transaction Expense Amount will be deducted from the amount funded at
Closing. The “Purchase Price”, therefore, shall be $7,500,000.00, computed as follows: $8,250,000.00 initial principal
balance, less the OID.


 


1.5. Major
Investors. Certain provisions of this Agreement as more fully set forth herein shall only apply to an Investor with a Purchase Price
of at least $5,000,000.00 (each, a “Major Investor”).


 






    


     


    

 


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 jurisdiction 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, $0.0001 per share (the “Common Stock”),
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is obligated to
file reports pursuant to Section 13 or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions
contemplated hereby and thereby, have been duly and validly authorized by Company and all necessary actions have been taken; (v) this
Agreement, the Note, and the other Transaction Documents have been duly executed and delivered by Company and constitute the valid and
binding obligations of Company enforceable in accordance with their terms; (vi) the execution and delivery of the Transaction Documents
by Company 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; (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) except as otherwise publicly disclosed, 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; (ix) 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; (x) 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; (xi) 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; (xii) 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; (xiii) 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; (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, stockholders, 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, stockholders, 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 9.2 below, shall be applicable to the Transaction Documents and the transactions contemplated
therein; (xvi) Company acknowledges that Investor is not registered as a ‘dealer’ under the 1934 Act; and (xvii) 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 (xvi) and (xvii) above, acknowledges
and agrees that such matters, or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and
covenants and agrees it will not use any such information 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 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 NYSE, NYSE American or Nasdaq; (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 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; and (vi) except for Permitted Liens, Company will not pledge
or grant a security interest in any of its assets without Investor’s prior written consent, which consent may be granted on withheld
in Investor’s sole and absolute discretion. For purposes hereof, the term “Restricted Issuance” means the issuance,
incurrence or guaranty of any debt obligations other than trade payables incurred 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; provided, that, a “Restricted Issuance” shall not include any (i)
issuance of Common Stock or options to purchase Common Stock issued pursuant to any compensation plan of the Company, (ii) issuance of
Common Stock in connection with the exercise of any warrant of the Company existing as of the date hereof where the Company has offered
an exercise price lower than that provided for in such warrant to incentivize the holder thereof to execute such warrant, (iii) issuance
of Common Stock in connection with the at-the-market offering, or (vi) debt incurred in connection with Permitted Liens under clauses
(vi), (vii) or (xi) of the definition thereof so long as such debt is not convertible into equity of Company. For purposes hereof "Permitted
Liens" shall mean: (i) liens of carriers, warehousemen, mechanics and materialmen arising in the ordinary course of business
of the company; (ii) liens in the form of deposits or pledges incurred in connection with worker's compensation, unemployment compensation
and other types of Social Security (excluding liens arising under ERISA or in connection with surety bonds, bids, performance bonds and
similar obligations) for sums not overdue or being contested in good faith by appropriate proceedings and not involving any advances
or borrowed money or the deferred purchase price of property or services, which do not in the aggregate materially detract from the value
of the property or assets of the Company taken as a whole or materially impair the use thereof in the operation of the Company’s
business and, in each case, for which adequate reserves are maintained in accordance with GAAP and in respect of which no lien has been
filed; (iii) liens existing on the date hereof; (iv) attachments, appeal bonds, judgments and other similar liens, for sums not exceeding
Fifty Thousand and No/100 United States Dollars (US$50,000.00) arising in connection with court proceedings, provided the execution or
other enforcement of such liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by
appropriate proceedings, and only to the extent such judgments or awards do not otherwise constitute an Event of Default; (v) zoning
and similar restrictions on the use of property and easements, rights of way, restrictions, minor defects or irregularities in title
and other similar liens not interfering in any material respect with the ordinary conduct of the business of the Company; (vi) liens
arising in connection with capital leases (and attaching only to the property being leased); (vii) liens that constitute purchase money
security interests on any property securing indebtedness incurred for the purpose of financing all or any part of the cost of acquiring
such property, provided that any such lien attaches to such property within sixty (60) days of the acquisition thereof and attaches solely
to the property so acquired; (viii) liens granted to Investor hereunder or under the Note; (ix) any interest or title of a lessor, sublessor,
licensor or sublicensor under any lease or non-exclusive license permitted by this Agreement; (x) banker's liens and rights of set-off
of financial institutions arising in connection with items deposited in accounts maintained at such financial institutions and subsequently
unpaid and unpaid fees and expenses that are charged to the Company by such financial institutions in the ordinary course of business
of the maintenance and operation of such accounts; and (xi) liens in connection commercial bank line of credits. The covenants set forth
in Section 4 (iv) – (vi) shall only apply to Major Investors.


 






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5. Conditions
to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note to Investor at the Closing
is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:


 


5.1. Investor
shall have executed this Agreement and delivered the same to Company.


 


5.2. Investor
shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.


 


6. Conditions
to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note at the Closing is subject to
the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these conditions are for Investor’s
sole benefit and may be waived by Investor at any time in its sole discretion:


 


6.1. Company
shall have executed this Agreement and the Note and delivered the same to Investor.


 


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


 


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


 


7. 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 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 conversions into
Common Stock, 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 7 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.


 


8. Participation
Right. For the period of time beginning on the Closing Date and ending on the date that is three (3) months from the date that the
Note is paid in full, Company hereby grants to each Major Investor a participation right, whereby Major Investor shall have the right
to participate at Major Investor’s discretion in up to twenty-five percent (25%) of the amount sold in any debt or equity financing
of Company other than a registered at the market offering of the Company (the “Participation Right”). Within two (2)
Trading Days following the consummation of a financing transaction covered by the Participation Right, Company will provide each Major
Investor with written notice of the consummation of such transaction, along with copies of the transaction documents. Major Investor
shall then have up to five (5) calendar days to elect to purchase up to twenty-five percent (25%) of the amount of debt or equity securities
issued in such transaction on the most favorable terms and conditions offered to any other purchaser of the same securities. The parties
agree that in the event Company breaches its obligations with respect to the Participation Right, Major Investor’s sole and exclusive
remedy shall be to receive, as liquidated damages, an amount equal to twenty percent (20%) of the amount Major 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.  


 






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9. Miscellaneous.
The provisions set forth in this Section 9 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
9 and any provision in any other Transaction Document, the provision in such other Transaction Document shall govern.


 


9.1. Arbitration
of Claims. The parties shall submit all Claims (as defined in Exhibit C) arising under this Agreement or any other Transaction
Document or any other agreement between the parties and their affiliates or any Claim relating to the relationship of the parties to
binding arbitration pursuant to the arbitration provisions set forth in Exhibit C attached hereto (the “Arbitration Provisions”).
For the avoidance of doubt, the parties agree that the injunction described in Section 9.3 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.


 


9.2. 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 9.10
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) 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 9.2 are material terms to induce Investor to enter into the Transaction Documents and that but for Company’s
agreements set forth in this Section 9.2 Investor would not have entered into the Transaction Documents.


 


9.3. Specific
Performance. Company acknowledges and agrees that Investor may suffer irreparable harm in the event that Company fails to perform
any material provision of this Agreement or any of the other Transaction Documents in accordance with its specific terms. It is accordingly
agreed that Investor shall be entitled to one or more injunctions to prevent or cure breaches of the provisions of this Agreement or
such other Transaction Document and to enforce specifically the terms and provisions hereof or thereof, this being in addition to any
other remedy to which the Investor may be entitled under the Transaction Documents, at law or in equity. Company specifically agrees
that: (a) following an Event of Default (as defined in the Note) under the Note, each Major 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,
each Major 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.


 






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9.4. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all 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.


 


9.5. 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.


 


9.6. 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.


 


9.7. 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.


 


9.8. 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.


 


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


 


9.10. 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, 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:


 


Quantum
Computing Inc.


Attn:
Robert Liscouski


215
Depot Court SE, Suite 215


Leesburg,
Virginia 20175


 






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If
to Investor:


 


Streeterville
Capital, LLC


Attn:
John M. 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 K. Hansen


3051
West Maple Loop Drive, Suite 325


Lehi,
Utah 84043


 


9.11. 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 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.


 


9.12. 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.


 


9.13. 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.


 


9.14. 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.


 


9.15. 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.


 






    7


     


    

 


9.16. 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.


 


9.17. 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.


 


9.18. 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.


 


9.19. 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.


 


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


 




    8


     


    

 


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


 





	 	INVESTOR:
	 	 	 
	 	Streeterville Capital, LLC
	 	 	 
	 	By:	 
	 	 	John M. Fife, President


 


	 	COMPANY:
	 	 	 
	 	Quantum Computing Inc.
	 	 	 
	 	By:	 
	 	 	Robert Liscouski, 
	 	 	Chief Executive Officer






 





ATTACHED
EXHIBITS:


 


	Exhibit A	Note
	Exhibit B	Officer’s Certificate
	Exhibit C	Arbitration Provisions



 


[Signature
Page to Note Purchase Agreement] 


  




    


     


    

 


Exhibit
C


 


ARBITRATION
PROVISIONS


 


1. Dispute
Resolution. For purposes of this Exhibit C, the term “Claims” means any disputes, claims, demands, causes
of action, requests for injunctive relief, requests for specific performance, liabilities, damages, losses, or controversies whatsoever
arising from, related to, or connected with the transactions contemplated in the Transaction Documents and any communications between
the parties related thereto, including without limitation any claims of mutual mistake, mistake, fraud, misrepresentation, failure of
formation, failure of consideration, promissory estoppel, unconscionability, failure of condition precedent, rescission, and any statutory
claims, tort claims, contract claims, or claims to void, invalidate or terminate the Agreement (or these Arbitration Provisions (defined
below)) or any of the other Transaction Documents. The parties to 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 C
(“Arbitration Provisions”) are binding on each of them. 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.


 






    Arbitration Provisions, Page 1


     


    

 


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
9.10 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 9.10 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 9.10 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.


 






    Arbitration Provisions, Page 2


     


    

 


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.


 






    Arbitration Provisions, Page 3


     


    

 


(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.


 






    Arbitration Provisions, Page 4


     


    

 


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.


 






    Arbitration Provisions, Page 5


     


    

 


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.


 






    Arbitration Provisions, Page 6


     


    

 


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.


 






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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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