Exhibit 10.1


 


Securities
Purchase Agreement


 


This
Securities Purchase Agreement (this “Agreement”), dated as of December 22, 2022, is entered into by and
between Outlook Therapeutics, Inc., a Delaware corporation (“Company”),
and Streeterville Capital, LLC, a Utah limited liability company, its successors and/or
assigns (“Investor”).


 


A.            Company
and Investor are executing and delivering this Agreement in reliance upon an exemption from securities registration afforded by the Securities
Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder by the United States
Securities and Exchange Commission (the “SEC”).


 


B.            Investor
desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement, a Convertible Promissory
Note, in the form attached hereto as Exhibit A, in the original principal amount of $31,820,000.00 (the “Note”),
convertible into common stock, $0.01 par value per share, of Company (the “Common Stock”), upon the terms and subject
to the limitations and conditions set forth in such Note.


 


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


 


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


 


E.            Company
previously issued to Investor that certain Promissory Note dated November 16, 2021 with an original principal balance of $10,220,000.00
(the “Prior Note”).


 


F.            The
repayment amount of the Prior Note as of December 28, 2022 is $11,947,539.50 (the “Repayment Amount”).


 


G.            Investor
and Company desire for Investor to purchase the Note by cancelling the Prior Note and Investor making a new investment in Company of $18,052,460.50
(the “New Investment Amount”).


 


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


 


1.            Purchase
and Sale of Securities.


 


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


 


1.2.            Form of
Payment. On the Closing Date, Investor will: (i) pay the New Investment Amount to Company via wire transfer of immediately
available funds; and (ii) deliver the Prior Note to Company for cancellation. Upon the issuance of the Note pursuant to this Agreement,
the Prior Note will be cancelled and the obligations thereunder will immediately terminate.


 






    	 	1	 



     


    

 


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 December 28,
2022, or another mutually agreed upon date. The closing of the transactions contemplated by this Agreement (the “Closing”)
shall occur on the Closing Date by means of the exchange by email of signed .pdf documents, but shall be deemed for all purposes to have
occurred at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.


 


1.4.            Purchase
Price. The Note carries an original issue discount of $1,800,000.00 (the “OID”). In addition, Company agrees to
pay $20,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence, monitoring and other transaction costs
incurred in connection with the purchase and sale of the Note (the “Transaction Expense Amount”). The OID and the Transaction
Expense Amount will be included in the initial principal balance of the Note. The “Purchase Price” for the Note shall
be $30,000,000.00, computed as follows: the New Investment Amount plus the Repayment Amount.


 


1.5.            Collateral
for the Note. The Note shall be unsecured.


 


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.


 






    	 	2	 



     


    

 


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 and for which the failure to remain so qualified would reasonably be expected to have a material adverse effect
on the business, operations or financial condition of the Company; (iii) Company has registered its Common Stock under Section 12(b) of
the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is obligated to file reports pursuant to Section 13
or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and thereby,
have been duly and validly authorized by Company and all necessary actions have been taken; (v) this Agreement, the Note, and the
other Transaction Documents have been duly executed and delivered by Company and constitute the valid and binding obligations of Company
enforceable in accordance with their terms; (vi) the execution and delivery of the Transaction Documents by Company, the issuance
of the Securities in accordance with the terms hereof, and the consummation by Company of the other transactions contemplated by the Transaction
Documents do not and will not conflict with or result in a breach by Company of any of the terms or provisions of, or constitute a default
under (a) Company’s formation documents or bylaws, each as currently in effect, (b) any indenture, mortgage, deed of trust,
or other material agreement or instrument to which Company is a party or by which it or any of its properties or assets are bound, including,
without limitation, any listing agreement for the Common Stock, the breach or default of which would reasonably be expected to have a
material adverse effect on the business, operations or financial condition of the Company, or (c) any existing applicable law, rule,
or regulation or any applicable decree, judgment, or order of any court, United States federal, state or foreign regulatory body, administrative
agency, or other governmental body having jurisdiction over Company or any of Company’s properties or assets; (vii) no further
authorization, approval or consent of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange
or market or the stockholders or any lender of Company is required to be obtained by Company for the issuance of the Securities to Investor
or the entering into of the Transaction Documents; (viii) none of Company’s filings with the SEC contained, at the time they
were filed, any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they were made, not materially misleading; (ix) Company
has filed all reports, schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act
on a timely basis or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or
other document prior to the expiration of any such extension; (x) there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body pending or, to the knowledge of Company, threatened against or affecting Company before or
by any governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any other person,
that has not been disclosed in the Company’s public filings and wherein an unfavorable decision, ruling or finding would be reasonably
expected to have a material adverse effect on Company or which would adversely affect the validity or enforceability of, or the authority
or ability of Company to perform its obligations under, any of the Transaction Documents; (xi) Company has not consummated any financing
transaction that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; (xii) Company is
not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,” as such type of “issuer”
is described in Rule 144(i)(1) under the 1933 Act that was required to be disclosed therein; (xiii) with respect to any
commissions, placement agent or finder’s fees or similar payments that will or would become due and owing by Company to any person
or entity as a result of this Agreement or the transactions contemplated hereby (“Broker Fees”), any such Broker Fees
will be made in full compliance with all applicable laws and regulations and only to a person or entity that is a registered investment
adviser or registered broker-dealer; (xiv) Investor shall have no obligation with respect to any Broker Fees or with respect to any
claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may be due in connection with the
transactions contemplated hereby and Company shall indemnify and hold harmless each of Investor, Investor’s employees, officers,
directors, stockholders, members, managers, agents, and partners, and their respective affiliates, from and against all claims, losses,
damages, costs (including the costs of preparation and reasonable attorneys’ fees) and expenses suffered in respect of any such
claimed Broker Fees; (xv) neither Investor nor any of its officers, directors, stockholders, members, managers, employees, agents
or representatives has made any representations or warranties to Company or any of its officers, directors, employees, agents or representatives
except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by
the Transaction Documents, Company is not relying on any representation, warranty, covenant or promise of Investor or its officers, directors,
members, managers, employees, agents or representatives other than as set forth in the Transaction Documents; (xvi) Company acknowledges
that the State of Utah has a reasonable relationship and sufficient contacts to the transactions contemplated by the Transaction Documents
and any dispute that may arise related thereto such that the laws and venue of the State of Utah, as set forth more specifically in Section 9.2
below, shall be applicable to the Transaction Documents and the transactions contemplated therein; (xvii) Company acknowledges that
Investor is not registered as a ‘dealer’ under the 1934 Act; and (xviii) Company has performed due diligence and
background research on Investor and its affiliates and has received and reviewed the due diligence packet provided by Investor. Company,
being aware of the matters and legal issues described in subsections (xvii) and (xviii) above, acknowledges and agrees that
such matters, or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and covenants and
agrees it will not use any such information or legal theory as a defense to performance of its obligations under the Transaction Documents
or in any attempt to avoid, modify, reduce, rescind or void such obligations.


 






    	 	3	 



     


    

 


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) neither Company nor any subsidiary of Company will encumber,
mortgage, pledge or grant a security interest in any of its assets (other than intellectual property) except in connection with the
financing of any equipment in the ordinary course of business, purchase money liens and liens in respect of capital lease
obligations, liens for taxes, assessments or other governmental charges, statutory Liens of landlords,
carriers, warehousemen, mechanics, materialmen and other liens imposed by law in the ordinary course of business, pledges and
deposits made in the ordinary course of business, deposits or pledges to secure the performance of bids, tenders, trade contracts,
governmental contracts, leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other
obligations of a like nature, judgment and attachment liens not giving rise to a Trigger Event or an Event of Default, customary
rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or common law of
banks or other financial institutions where the Borrower or any of its subsidiaries maintains deposits in the ordinary course of
business and Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, leases,
subleases or real property licenses granted to others in the ordinary course of business, and liens representing any interest or
title of a licensor, lessor or sublicensor or sublessor under any lease or real property license, easements, zoning restrictions,
rights-of-way, restrictions and similar encumbrances imposed by law or arising in the ordinary course of business, without
Investor’s prior written consent, which consent may be granted or withheld in Investor’s sole and absolute discretion;
(v) except licenses with respect to intellectual property existing as of the date of this Agreement and future in-licenses,
neither Company nor any subsidiary of Company will license, encumber, mortgage, pledge or grant a security interest in or to any of
its intellectual property without Investors’ written consent, which consent may be granted in withheld in Investor’s
sole and absolute discretion; (vi) 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; provided,
however, that Investor’s consent will not be required for an Exempt Issuance; and (vii) Company will 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. For purposes hereof, the term “Restricted Issuance” means
the (a) issuance, incurrence or guaranty of any debt for borrowed money other than trade payables in the ordinary course of
business, letters of credit, credit card obligations, capital leases, equipment financings, security deposits, intercompany debt,
hedging obligations, purchase money indebtedness, earn-outs, indemnification obligations, purchase price adjustments, non-compete
obligations and similar adjustments in respect of acquisitions or other asset sales, surety, appeal, indemnity, performance or other
similar bonds in the ordinary course of business, reimbursement or indemnification obligations incurred in the ordinary of business,
indebtedness arising in connection with endorsement of instruments or other payment items for deposit in the ordinary course of
business, indebtedness incurred in respect of bank guarantees, warehouse receipts, letters of credit, or similar instruments issued
or created in the ordinary course of business, or (b) the issuance of any securities that (1) have or may have, by its
terms, 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), by its terms, with a
conversion price that varies with the market price of the Common Stock, even if such security only becomes convertible following an
event of default, the passage of time, or another trigger event or condition; or (3) have a fixed conversion price, exercise
price or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or
equity security (A) due to a change in the market price of Company’s Common Stock since the date of the initial issuance
or (B) upon the occurrence of specified or contingent events directly or indirectly related to the business of Company. For
the avoidance of doubt, the issuance of Common Stock under, pursuant to, in exchange for or in connection with any contract or
instrument, whether convertible or not, is deemed a Restricted Issuance for purposes hereof if the number of shares of Common Stock
to be issued is based upon or related in any way to the market price of the Common Stock, including, but not limited to, Common
Stock issued in connection with a Section 3(a)(9) exchange, a Section 3(a)(10) settlement, or any other
similar settlement or exchange. For purposes hereof, “Exempt Issuance” means (a) the issuance of Common
Stock or common stock equivalents to employees, officers, directors, consultants or vendors of the Company pursuant to any stock or
option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors
established for such purpose, (b) the issuance of securities upon the exercise or exchange of or conversion of any Securities
issued hereunder and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on
the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the
number of such securities or to decrease the exercise price, exchange price or conversion price of such securities,
(c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions
approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which
acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Restricted Issuance
component, provided that any such issuance shall only be to a person (or to the equity holders of a person) which is, itself or
through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall
provide to the Company benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities,
(d) the entry into, or issuance of securities pursuant to, an “at-the-market” facility, or (e) the issuance
of warrants with no price reset, except in the case of stock splits, reclassifications or similar events.


 






    	 	4	 



     


    

 


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


 


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


 


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


 


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


 


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


 


6.2.            Company
shall have delivered to Investor a fully executed Irrevocable Letter of Instructions to Transfer Agent (the “TA Letter”)
substantially in the form attached hereto as Exhibit B acknowledged and agreed to in writing by Company’s transfer agent
(the “Transfer Agent”).


 


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


 


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


 






    	 	5	 



     


    

 


6.5.            Company
shall have raised at least $25,000,000.00 in an equity financing on or before December 28, 2022.


 


7.            Reservation
of Shares. On or before April 1, 2023, Company will reserve 15,910,000 shares of Common Stock from its authorized and
unissued Common Stock to provide for all issuances of Common Stock under the Note (the “Share Reserve”). Company further
agrees to add additional shares of Common Stock to the Share Reserve in increments of 500,000 shares as and when requested by Investor
if at any time following a Major Trigger Event (as defined in the Note) under the Note the number of shares being held in the Share Reserve
is less than two and a half (2.5) times the number of shares of Common Stock obtained by dividing the Outstanding Balance (as defined
in the Note) as of the date of the request by the Conversion Price (as defined in the Note). Company shall further instruct the Transfer
Agent to hold the shares of Common Stock reserved pursuant to the Share Reserve exclusively for the benefit of Investor and to issue such
shares to Investor promptly upon Investor’s delivery of a Redemption Notice under the Note. Finally, Company shall instruct the
Transfer Agent to issue shares of Common Stock pursuant to the Note to Investor out of its authorized and unissued shares, and not the
Share Reserve, to the extent shares of Common Stock have been authorized, but not issued, and are not included in the Share Reserve. The
Transfer Agent shall only issue shares out of the Share Reserve to the extent there are no other authorized shares available for issuance
and then only with Investor’s written consent.


 


8.            Participation
Right. Beginning on the Closing Date and ending on the date that the Note is paid in full, Company hereby grants to Investor
a participation right, whereby Investor shall have the right to participate at Investor’s discretion in up to ten percent (10%)
of the amount sold in any Restricted Issuance (the “Participation Right”). Within two (2) Trading Days following
the consummation of a Restricted Issuance, Company will provide Investor with written notice of the consummation of such Restricted Issuance,
along with copies of the transaction documents. Investor will then have up to five (5) calendar days to elect to purchase up to ten
percent (10%) of the amount of debt or equity securities issued in such transaction on the most favorable terms and conditions offered
to any other purchaser of the same securities.


 


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 E) arising out of this Agreement or any other Transaction
Document or any other agreement between the parties and their affiliates or any Claim relating to the relationship of the parties to binding
arbitration pursuant to the arbitration provisions set forth in Exhibit E attached hereto (the “Arbitration Provisions”).
For the avoidance of doubt, the parties agree that the injunction described in Section 9.2 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.


 






    	 	6	 



     


    

 


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 (and notwithstanding the
terms (specifically including any governing law and venue terms) of any transfer agent services agreement or other agreement between the
Transfer Agent and Company, such litigation specifically includes, without limitation any action between or involving Company and the
Transfer Agent under the TA Letter or otherwise related to Investor in any way (specifically including, without limitation, any action
where Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing Common
Stock to Investor for any reason)), each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction
of any state or federal court sitting in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court
for the purposes hereof, (iii) agrees to not bring any such action (specifically including, without limitation, any action where
Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing Common Stock
to Investor for any reason) outside of any state or federal court sitting in Salt Lake County, Utah, and (iv) waives any claim of
improper venue and any claim or objection that such courts are an inconvenient forum or any other claim, defense or objection to the bringing
of any such proceeding in such jurisdiction or to any claim that such venue of the suit, action or proceeding is improper. Finally, Company
covenants and agrees to name Investor as a party in interest in, and provide written notice to Investor in accordance with Section 9.9
below prior to bringing or filing, any action (including without limitation any filing or action against any person or entity that is
not a party to this Agreement, including without limitation the Transfer Agent) that is related in any way to the Transaction Documents
or any transaction contemplated herein or therein, including without limitation any action brought by Company to enjoin or prevent the
issuance of any shares of Common Stock to Investor by the Transfer Agent, and further agrees to timely name Investor as a party to any
such action. Company acknowledges that the governing law and venue provisions set forth in this Section 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 Investor may be entitled under the Transaction Documents, at law or in equity. Company specifically agrees that: (a) following
an Event of Default (as defined in the Note) under the Note, Investor shall have the right to seek and receive injunctive relief
from a court or an arbitrator prohibiting Company from issuing any of its Common Stock or preferred stock to any party unless the Note
is being paid in full simultaneously with such issuance; and (b) following a breach of Section 4(vii) above, Investor
shall have the right to seek and receive injunctive relief from a court or arbitrator invalidating such lock-up. Company specifically
acknowledges that Investor’s right to obtain specific performance constitutes bargained for leverage and that the loss of such leverage
would result in irreparable harm to Investor. For the avoidance of doubt, in the event Investor seeks to obtain an injunction from a court
or an arbitrator against Company or specific performance of any provision of any Transaction Document, such action shall not be a waiver
of any right of Investor under any Transaction Document, at law, or in equity, including without limitation its rights to arbitrate any
Claim pursuant to the terms of the Transaction Documents, nor shall Investor’s pursuit of an injunction prevent Investor, under
the doctrines of claim preclusion, issues preclusion, res judicata or other similar legal doctrines, from pursuing other Claims in the
future in a separate arbitration.


 






    	 	7	 



     


    

 


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.            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.


 


9.6.            Severability.
In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute
or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.


 


9.7.            Entire
Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein, neither Company nor Investor makes
any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance of doubt, all prior term sheets
or other documents between Company and Investor, or any affiliate thereof, related to the transactions contemplated by the Transaction
Documents (collectively, “Prior Agreements”), that may have been entered into between Company and Investor, or any
affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by the Transaction Documents. To the extent there
is a conflict between any term set forth in any Prior Agreement and the term(s) of the Transaction Documents, the Transaction Documents
shall govern.


 


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


 


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


 


If
to Company:


 


Outlook Therapeutics, Inc.


Attn: Lawrence A. Kenyon, CFO


485 Route 1 South


Building F, Suite 320


Iselin, New Jersey 08830


 






    	 	8	 



     


    

 


If
to Investor:


 


Streeterville Capital, LLC


Attn: John Fife


303 East Wacker Drive, Suite 1040


Chicago, Illinois 60601


 


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


 


Hansen Black Anderson Ashcraft PLLC


Attn: Jonathan Hansen


3051 West Maple Loop Drive, Suite 325


Lehi, Utah 84043


 


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


 


9.11.            Survival.
The representations and warranties of Company and the agreements and covenants set forth in this Agreement shall survive the Closing hereunder
notwithstanding any due diligence investigation conducted by or on behalf of Investor.


 


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


 


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


 


9.14.            Attorneys’
Fees and Cost of Collection. In the event any action at law or in equity to enforce or interpret the terms of this Agreement or the
Transaction Documents, the parties agree that the party who is awarded the most money shall be deemed the prevailing party for all purposes
and shall therefore be entitled to an additional award of the full amount of the reasonable attorneys’ fees and expenses paid by
such prevailing party in connection with the litigation and/or dispute without reduction or apportionment based upon the individual claims
or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair a court’s power to award fees and expenses
for frivolous or bad faith pleadings.


 






    	 	9	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	10	 



     


    

 


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


 


	 	INVESTOR:
	 	 	 
	 	Streeterville
    Capital, LLC
	 	 	 
	 	By:	/s/ John M. Fife
	 	 	John M. Fife, President
	 	 	 
	 	COMPANY:
	 	 	 
	 	Outlook
    Therapeutics, Inc.
	 	 	 
	 	By:	/s/ Lawrence A. Kenyon
	 	 	Lawrence A. Kenyon, CFO


 


[Signature Page to
Securities Purchase Agreement]


 






    	 	 	 



     


    

 


ATTACHED EXHIBITS:


 


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



 






    	 	 	 



     


    

 


Exhibit E


 


ARBITRATION PROVISIONS


 


1.     Dispute
Resolution. For purposes of this Exhibit E, the term “Claims” means any disputes, claims, demands,
causes of action, requests for injunctive relief, requests for specific performance, liabilities, damages, losses, or controversies whatsoever
arising from, related to, or connected with the transactions contemplated in the Transaction Documents and any communications between
the parties related thereto, including without limitation any claims of mutual mistake, mistake, fraud, misrepresentation, failure of
formation, failure of consideration, promissory estoppel, unconscionability, failure of condition precedent, rescission, and any statutory
claims, tort claims, contract claims, or claims to void, invalidate or terminate the Agreement (or these Arbitration Provisions (defined
below)) or any of the other Transaction Documents. For the avoidance of doubt, Investor’s pursuit of an injunction or other
Claim pursuant to these Arbitration Provisions or with a court will not later prevent Investor under the doctrines of claim preclusion,
issue preclusion, res judicata or other similar legal doctrines from pursuing other Claims in a separate arbitration in the future. The
parties to this Agreement (the “parties”) hereby agree that the Claims may be arbitrated in one or more Arbitrations
pursuant to these Arbitration Provisions (one for an injunction or injunctions and a separate one for all other Claims). The parties to
the Agreement hereby agree that the arbitration provisions set forth in this Exhibit E (“Arbitration Provisions”)
are binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or declare the Agreement
(or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable for any reason is subject to these Arbitration
Provisions. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or any other Transaction Document) or
declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable pursuant to Section 29
of the 1934 Act or for any other reason is subject to these Arbitration Provisions. Any capitalized term not defined in these Arbitration
Provisions shall have the meaning set forth in the Agreement.


 


2.     Arbitration.
Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”) to be conducted exclusively
in Salt Lake County, Utah and pursuant to the terms set forth in these Arbitration Provisions. Subject to the arbitration appeal right
provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that the award of the arbitrator rendered
pursuant to Paragraph 4 below (the “Arbitration Award”) shall be (a) final and binding upon the parties, (b) the
sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator,
and (c) promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Subject
to the Appeal Right, any costs or fees, including without limitation reasonable 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 9.9
of the Agreement; provided, however, that the Arbitration Notice may not be given by email or fax. Arbitration will be deemed initiated
as of the date that the Arbitration Notice is deemed delivered to such other party under Section 9.9 of the Agreement (the “Service
Date”). After the Service Date, information may be delivered, and notices may be given, by email or fax pursuant to Section 9.9
of the Agreement or any other method permitted thereunder. The Arbitration Notice must describe the nature of the controversy, the remedies
sought, and the decision 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 impartial and independent, and qualified as “neutrals” 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 impartial and independent, and 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 impartial and independent, and qualified as “neutrals” 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 with the American Arbitration Association
serving as the appointing authority.


 


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


 


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


 


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


 






    	 	 	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	 	 



     


    

 


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


 


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


 


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


 


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


 


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


 






    	 	 	 



     


    

 


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


 


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


 


5.     Arbitration
Appeal.


 


5.1     Initiation
of Appeal. Following the delivery 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 and judgment may be entered in a state or federal court sitting in Salt Lake County,
Utah. 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 qualified as “neutrals” 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 impartial and independent, and 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 qualified as “neutrals” by Utah ADR Service,
and impartial and independent (none of whom may be the Original Arbitrator) by written notice to the Appellee. The Appellee may then,
within five (5) calendar days after the Appellant has submitted notice of its selected arbitrators to the Appellee, select, by written
notice to the Appellant, three (3) of such selected arbitrators to serve on the Appeal Panel. If the Appellee fails to select in
writing within such 5-day period three (3) of the arbitrators selected by the Appellant to serve as the members of the Appeal Panel,
then the Appellant may select the three (3) members of the Appeal Panel from the Appellant’s list of five (5) arbitrators
by providing written notice of such selection to the Appellee.


 






    	 	 	 



     


    

 


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


 


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


 


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


 


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


 


5.4     Timing.


 


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


 






    	 	 	 



     


    

 


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


 


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


 


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


 


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


 


6.     Miscellaneous.


 


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


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally left blank]